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Do Challenges to Wisconsin Labor Bill Have Merit? No.

A close look at Wisconsin law shows that Judge Sumi is wrong and the suits are simply buying time, hoping the state senate flips next election cycle.

by
Gary Wickert

Bio

April 1, 2011 - 12:55 pm

Franklin D. Roosevelt said: “Self-interest is the enemy of all true affection.” The passion with which public employee unions are fighting the common sense financial reforms of Wisconsin Governor Scott Walker is certainly understandable — their golden goose hangs in the balance. That they stand to lose so much underscores the importance and timeliness of Walker’s bill.

Governor Walker has stood his ground, and the world seems shocked that a politician has actually done what he said he would. After stripping the budget repair bill of financial issues so that the bill could be voted on — because 14 Democrats had cowardly fled the state — the bill passed. The public employee unions, seeing that their ox had been gored, concocted a minor open meeting violation regarding a March 9 conference committee meeting and found a liberal judge, Maryann Sumi, to agree with them. She signed a temporary restraining order barring the publication of the bill by the secretary of state, thought to be a necessary step for the bill to become law.

At the same time, public employee unions scrambled to rush through favorable wage and benefits contracts while the law was presumed crippled. The restraining order was immediately appealed to the Court of Appeals, which dodged the controversy by kicking the matter up to the Supreme Court. The importance of electing David Prosser to the Supreme Court is now readily apparent.

Last Friday, the Legislative Reference Bureau published the law on its website, complying with the state’s publication requirement, and the state of Wisconsin officially began recognizing the budget repair bill as law. The bill narrows the focus of public employee contract negotiations to cost-of-living pay increases, prevents unions from collecting dues through state payroll deductions, and prevents unions from requiring union members who do not support Democrat candidates from paying dues which are used to support Democrat candidates.

Democrats once again shifted the focus of democracy from the legislature to the judiciary. On Tuesday, Judge Sumi — whose husband donated to the campaigns of three of the 14 Democrats who had earlier fled the state — ordered the state to put the law on hold and made clear that the law is now enjoined, once again thwarting the will of the voters and a legitimately passed law in Wisconsin. Sumi is set to hear additional arguments on the unions’ spurious claim that GOP legislative leaders violated the state’s open meetings law during debate on the measure, and she also is considering Republican claims that the law technically took effect last weekend after a state agency unexpectedly published it online.

For anybody interested in a little digging and research, it quickly becomes obvious that the law was properly published and should be in effect. While Democrats argue that the reference bureau can’t publish a law without a date from the secretary of state, Republicans correctly point out that legislators are immune from such civil lawsuits, and the law is in effect. Nonetheless, Judge Sumi has improperly injected herself into the legislative process in favor of the Democrats whom she has supported.

The merits of the Democrats’ desperate effort to delay a legitimately and democratically passed law are lacking. Wisconsin’s open meetings laws specify requirements of cities, towns, and other governmental entities for notice and conduct of meetings in order to ensure that the public is not kept in the dark and action is not taken without proper notice. Specifically, the Democrats and Judge Sumi are concerned with whether there was a violation of Section19.84 of the open meetings laws, which provides as follows:

§19.84 (1) Public notice of all meetings of a governmental body shall be given in the following manner: … (2) Every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media thereof. The public notice of a meeting of a governmental body may provide for a period of public comment, during which the body may receive information from members of the public. (3) Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.

A close look at the open meetings laws reveals that they do not apply in this case. With regard to another section of those laws, Section 19.84(2) provides as follows:

§19.87(2) No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.

The relevant question then becomes whether there was a rule of the Senate or Assembly which conflicted with Section 19.84. And there was. Joint Rule 27 provides as follows:

Joint Rule 27. Committee hearings open to public. Unless otherwise provided by law, every committee hearing, executive session, or other meeting shall be open to the public. If time permits, advance notice of every regularly scheduled committee hearing, executive session, or other meeting shall be published as provided in joint rule 75.

To make the Democrats’ position even more far-fetched, the committee meeting complained of was not even a regularly scheduled meeting and therefore Rule 75 would not even apply. Senate Rule 93 goes even further with regard to the notice required prior to a committee meeting like the one the Democrats are complaining of. It provides:

Senate Rule 93. (2) A notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published.

Senate Rule 93 (3). (3) The daily calendar is in effect immediately upon posting on the legislative bulletin boards. The calendar need not be distributed.

The notice required by Rule 93 was provided. The Senate clerk posted notice of this committee online.

But the merits of the union lawsuit intended to thwart democracy aren’t really important to the public employee unions. What is important is additional delay so that more and more unions can ram through last-minute contract negotiations which will tide them over until the next election cycle. Banking on a recall of the “extreme” Republicans looking to save Wisconsin from insolvency, they are hopeful that they can avoid the will of the taxpayers who pay all of the lavish salaries and benefits altogether.

What we are seeing in Madison is sanity beginning to peek through from behind a cloud of union self-interest, red tape, debt, and huge deficits. With a poor economy, no stimulus funds, the ending of budget gimmicks, and taxes maxed out, more spending cuts will be necessary to save our state. Thwarting legitimately passed legislation with a radical judicially legislating judge named Sumi is the only way for the self-interested Democrats and union supporters to circumvent one of life’s simplest truths: you can’t spend more than you make.

Gary Wickert is a board-certified trial lawyer, living in Cedarburg, Wisconsin with his wife and two sons. He has a political column in Reality News and has been an op-ed contributor for Ozaukee County's News Graphic as well as a feature writer for several Wisconsin magazines. He is also the author of several legal treatises on a variety of subjects and currently serves as supervisor in the town of Cedarburg. In 2011, Gary lost a bid for the Wisconsin Assembly in the Republican Primary by 72 votes.
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