Uncertain Odds for Wisconsin Government Union Law

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Front Page Magazine:

A Wisconsin Circuit Court judge has struck down the state’s controversial government union reform bill, saying the way the legislation was passed violated Wisconsin’s open meetings statute. The decision raised some eyebrows in the legal community, as did the timing of Judge Maryann Sumi’s decision. But the permanent injunction issued by the judge is hardly the end of the matter. The Wisconsin Supreme Court will hold a hearing on whether to take the case on June 6, and Sumi herself ruled in her original temporary restraining order on the bill that Republicans were free to pass the measure again as long as the state’s open meeting requirements were met. Both prospects, however, pose serious difficulties.

Judge Sumi, appointed by former Republican Governor Tommy Thompson, badly botched the decision according to some legal experts. Christian Schneider at National Review Online and others point to a glaring error made by Sumi, who wrote in her decision that the there was “no conflicting senate” rule that would contradict the open meeting law’s time requirements (24 hours notice for a legislative conference committee, from which a bill can then be brought to the floor).

But as law professor William Jacobson points out on his blog, there is indeed such a rule and that it specifically exempts committee meetings held during special sessions.

That’s not the only curious thinking in Judge Sumi’s opinion. Jacobson points to a critical precedent that says “courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman.” Sumi dismissed the impact of the precedent by claiming that it was decided before the open meeting law was passed. But Jacobson pointed out the obvious: “[T]he principle is the same; courts rule on legislation, courts do not stop legislation from being made.”