Judge Strikes Down Wisconsin Collective Bargaining Ban Citing Violation of Open Meetings Law


There are few political disputes in the last year that have proved more contentious than the decision of the Wisconsin legislature, after a protracted political struggle, to adopt reforms of the collective bargaining law for public unions.  However, that political involvement would not be evident to anyone who read the decision of Dane County Judge Maryann Sumi, who decided that the applicable provisions of the Wisconsin open meetings law were violated, and, further, that the appropriate remedy for that violation was the invalidation of the statute.

The importance of this issue was evident from the opening sentences of the opinion which referred back to that most venerable of constitutional decisions, Marbury v. Madison to support the proposition that it is the duty of the judges to say what the law is, and to enforce it against all other branches of government.

At one level this proposition seems appropriate, but what is so odd is how Judge Sumi ran with that message.  A look at the statute reveals that the primary sanction for a violation of the open meetings law is a small monetary fine of between $25 and $300 against the individual members of the legislature who participated in the violation.  The clear implication seems to be that the statute itself remains on the books, even if the legislators who misbehaved are subject to this sanction.

The plot thickens a bit, because either the Attorney General (who is defending this legislation) or the District Attorney in the county where the violation took place may bring an action seeking various forms of legal relief including an injunction of the statute, which might cover this case.   Nothing in the statute resolves the knotty question of whether the District Attorney of Dane County (where Madison is located) can move in the name of the “State of Wisconsin” if the Attorney General stands on the other side of the case, which is what happened here.

The complications only increase, moreover, because the violation of the open meetings law in no way requires the invalidation of any statute passed at that meeting.  Rather that question is determined by an uncertain public interest standard which asks whether “the public interest” in the enforcement of the open meetings law “outweighs any public interest which there may be in sustaining the validity of the action taken.”

A test of this sort is fluid, to say the least, and exceptionally difficult to apply in a void, without any discussion of the merits of the law which is involved.  Judge Sumi decided that the first interest outweighed the second, which I regard as a bit over the top, given that the lesser fines are trivial in comparison with the hefty sanction imposed in this case. Where a loose standard allows the court, if it so chooses, to override a law passed in regular form, it takes us a long way beyond Marbury, which essentially required a clear logical inconsistency between the command of the statute and the limitations in the Constitution.  In this case the applicable constitutional provision reads: “The doors of each house shall remain open, except when the public welfare requires secrecy. “ Art. IV § 10.  There is of course no secrecy interest here.  But by the same token, there is nothing at all in the constitutional provision that makes invalidation the consequence of not keeping the doors of each house open.

Clearly, there is a political element at work in this case even though the subject matter of the legislation is nowhere discussed.  My guess is that this decision will be overturned if only because an extra burden has to be placed on the District Attorney when the Attorney General is on the other side of the case.  But if not, I suspect that the legislation will be reenacted in any event.  Let’s hope that a quick and prompt appeal to the Wisconsin Supreme Court will resolve this question.  I certainly want the statute to stand.  But clearly an untested law moves in mysterious ways when the stakes are so high.

Members have made 7 comments.

  1. Profile photo of KC Mulville Member

    The thumbnail version of the story is that the statute’s opponents are using trivial technicalities to thwart the public interest. That plays into the stereotype that the law is a game, where the rules change with the players.

    • I’m reminded of the old question: If the law assumes that ignorance is no excuse, that infers that every citizen is expected to know the law. But if that was really true, why would we need lawyers? Why would I pay someone $300 an hour to tell me what I’m legally expected to already know?
    • Obviously, the legal system would be impossible without the assumption of comprehensive knowledge, no matter how impossible it is in the real world. Comprehensive knowledge of the law is a little white lie that makes the whole system possible.
    • There are plenty of little white lies scattered throughout any human system, including the law. They help bridge the gaps of human fallibility. Our willingness to tolerate these little white lies allows our systems to survive.

    But when a judge exploits a trivial technicality like this, it abuses that tolerance. It’s amounts to a cheat.

    • #1
    • May 28, 2011 at 3:13 am
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  2. Profile photo of Aelreth Inactive

    I was under the impression that the open meetings law does not apply in the case of an emergency session. Which I thought it was, that was why the state troopers were going to drag the runners back into session.

    • #2
    • May 28, 2011 at 3:37 am
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  3. Profile photo of cdor Member

    Judge Sumi voided the law because she didn’t like it. Isn’t that what judges do these days? Isn’t that what the California judge is doing with Prop 8? What law? We don’t need no damn laws!! Judges behaving as deities will lead to anarchy. Why should I obey a law I don’t like? It is a dangerous situation. Nonetheless, the Wisconsin legislature should convene tomorrow and re-pass the bill with all the doors and windows open. F you Judge Sumi.

    • #3
    • May 28, 2011 at 6:34 am
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  4. Profile photo of Paul DeRocco Member

    What I don’t understand is why the legislature didn’t reenact the law on the first day it was questioned by the lower court. I have this awful feeling that some of the Republicans were acting out of a bout of political recklessness rather than courage, which has now passed.

    • #4
    • May 28, 2011 at 8:25 am
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  5. Profile photo of Ross C Member
    Richard Epstein: There are few political disputes in the last year that have proved more contentious than the decision of the Wisconsin legislature, after a protracted political struggle, to adopt reforms of the collective bargaining law for public unions.

    It have understood (perhaps wrongly) that the changes proposed in WI were not dissimilar to the current situation of federal workers or of the workers in surrounding states.

    This seems like one of those stories where the media and (to my mind) political emphasis has been badly misplaced. Perhaps the most biased and misrepresented story of the year.

    • #5
    • May 28, 2011 at 9:36 am
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  6. Profile photo of MBF Member

    They’re going to pass it again along with the regular biannual budget this June. Get ready for more weeping, wailing, gnashing of teeth, and drum circles.

    Teachers will be out for the year on their well deserved three month vacation.

    • #6
    • May 28, 2011 at 9:48 am
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  7. Profile photo of Anon Inactive

    Why didn’t Sumi just invoke a penumbra as a basis for her reasoning. Since it doesn’t exist in law except in the judges imagination, it would be impossible to disprove that negative – the response would be a sort of shadow-boxing – and her decision infallible, until review .

    On the other hand, Sumi could have stuck down the law because it is, in her opinion, a miasma, which eliminates the need for a even a penumbra.

    Heck, she’s the judge and, therefore, can see in a law anything she damn well pleases – which to my mind sums up the quintessence of the legal profession.

    • #7
    • May 29, 2011 at 2:39 am
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