Justices listen to arguments in the Wisconsin Act 10 collective bargaining case.

Is Wisconsin’s open meeting law directly tied to the constitution or is it simply an aspirational, procedural rule for governmental bodies to follow when conducting business? Does a court have the right to determine if other branches of government have broken the open meeting law and if so, nullify legislation passed by lawmakers based on violations of that law?

Those were the questions facing the Wisconsin Supreme Court as it heard arguments whether the Joint Committee of Conference did or did not violate the open meetings law by holding a meeting with less than two hours notice in the Senate parlor on March 9. The bill coming out of that committee eventually was passed as the part of the budget repair bill by the Senate and Assembly. The bill was signed by Gov. Scott Walker two days later.
It was to be published 10 days later by the Secretary of State, but Dane County Circuit Court Judge Maryann Sumi issued a temporary restraining order blocking the publication and stalling the implementation of Wisconsin Act 10.
Act 10 limits the ability of public employees to collectively bargain for only wages and requires them to contribute a portion of their health care premiums and pensions.
The full court, including recently re-elected Justice David Prosser, heard six hours of arguments from attorneys representing the state, Judge Sumi, Dane County and other parties in the lawsuit. They are trying to decide if they should issue a supervisory writ to Judge Sumi, directing her to vacate the original temporary restraining order she placed on the implementation of Act 10 in March.
However, Sumi issued her final ruling on May 26 voiding Act 10, saying that lack of proper notice and adequate access to the meeting of the Joint Committee of Conference violated the open meetings law, thereby nullifying all subsequent actions arising from that meeting. Because of the ruling, Monday’s Supreme Court hearing was often confusing for both the justices and attorneys as they tried to determine if they were discussing simply vacating the TRO or the entire ruling issued in May.
Chief Justice Shirley Abrahamson tried in vain to keep the arguments on track, but it became clear during the hearing that the state wanted both the TRO and final judgement on Act 10 vacated.
Open Meetings Law: State statute or Constitutional mandate?
Deputy Attorney General Kevin St. John represented the state and argued that the open meetings law is a statutory law, not a constitutional mandate. He explained that Article 4, Subsection 10 of the Wisconsin Constitution was in response to the abuses of English Parliament which met in secret to conduct business.
That section says “Each house shall keep a journal of its proceedings and publish the same, except such parts as require secrecy.  The doors of each house shall be kept open except when the public welfare shall require secrecy.  Neither house shall, without consent of the other, adjourn for more than three days.”
He went on to say the open meetings law, which is listed in the state’s statutes, is applicable to the Legislature unless the senate or assembly have an internal rule that conflicts with it.
Both the senate and assembly have Rule 93, which states that “No notice of hearing before a committee shall be required other than posting on the legislative bulletin board, and no bulletin of committee hearings shall be published,” when either body is in special or extraordinary session. At the time of the Joint Committee of Conference, both houses were in special session called by Walker to work on the budget repair bill.
That rule was St. John’s lynchpin argument against Sumi’s conclusion for the TRO and her final ruling that there was an open meetings violation. He argued that iIf Rule 93 supercedes the open meetings laws provisions on notice, there could be no violation.
And if the open meetings statutes are not constitutionally mandated, St. John argued that the courts cannot use it to impede the implementation of legislation. By doing so, the courts are violating the people’s right to have the legislature pass laws and schedule their publication.
Sumi also ruled the committee violated the access provisions of the law, by failing to provide “adequate access” to the meeting by limiting how many members of the public could enter the senate parlor. On the day of the meeting, entrances to the Capitol had been restricted due to security concerns. Two doors were open, but that was reduced to one when Senate staffers asked state police to come to the senate chambers and provide security for a meeting.
St. John told Chief Justice Shirley Abrahamson that public access could be just one citizen and still be considered adequate. He added that main point of the open meetings law is the concept that meetings are not held in secret. In this case, he said, citizens and the press knew about the meeting, thereby making it open and noticed.
No writ needed
The parade of lawyers that followed St. John did not agree, citing the lack of the mandatory 24-hour notice or even the two hour emergency notice. Official documents show the notice was posted on the bulletin board shortly after 4 p.m. for a 6 p.m meeting.  They also noted testimony that all the people who wanted to get into the parlor were unable to.
Marie Stanton represented Judge Sumi and asked the Supreme Court to not vacate the TRO or final judgement, but instead allow the decision to stand and allow the state or any of the defendants in the case to appeal the ruling through the courts.
She said the open meetings law is very clear and detailed with “little left to the imagination.” She said a revision of the open meetings statute in 1976 by the legislature gave the courts the authority to oversee the proper application of that law by governmental bodies, including the Legislature.  She asked, “if the courts can’t oversee the legislature’s compliance with the law, who will keep them in line?”
Dane County District Attorney Ismael Ozanne, who filed the lawsuit initially, argued that Senate and Assembly Rule 93 don’t apply to the Joint Committee of Conference because by nature, it is not the senate or assembly. He pointed out that there is no joint rule that exempts the committee from noticing meetings, something the circuit court also noted in its ruling.
“A senate rule can’t be applied to the assembly and an assembly rule can’t be applied to the senate,” he argued. ” A joint rule applies to the joint committee.”
Attorney Robert Jambois appeared for Rep. Peter Barca (D-Kenosha) who is named as a defendant in the lawsuit. He said the Supreme Court should stay out of the case at this point and let it go to appeal, since the circuit court did not exercise a “flagrant defiance of constitutional demands.” Instead, Jambois said  Judge Sumi was within her rights to provide oversight of the open meetings law.
Jambois was the only attorney to point out that the joint committee meeting could have been noticed on March 9, but held on the 10th to allow for the proper 24-hour notice.
“But they didn’t because they didn’t want the 70 or 80,000 people who would have been standing around this building if they did that,” he said. “The Senate President and the Assembly Leader wanted to avoid the crowds knowing what was going on. But we the people have the right to a seat at the table.”
Sen. Mark Miller’s (D-Middleton) attorney Lester Pine argued that there was no need for an immediate writ from the Supreme Court because there is no sense of urgency with this case. He said if there was, the defendants could have appeared before the circuit court instead of declaring immunity from prosecution, they could have appealed and they could have just redone the vote after a proper notice.
“Instead the court held a hearing, the hearing was properly noticed and there was two days of testimony,” Pine said. “The court determined there was a reasonable amount of success on the merits of Mr. Ozanne’s claim. The circuit court deserves a lot of credit for doing its job.”
Supreme insight
Throughout the day the justices took time to question the attorneys with some lighter moments arising. At one point, Prosser asked St. John if he and Ozanne would be affected by the outcome of the case. St. John said yes, they would see increase contributions to their pensions and health insurance premiums, a comment that was met by an unidentified justice saying “So will we!”
After all of the arguments, Abrahamson adjourned the hearing and requested the court to go into conference. The court will issue its ruling at a later date.
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