Judge Blocks Wisconsin Anti-Union Law (Again)

March 29, 2011 2:34 p.m.
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Dane County Judge Maryann Sumi has just blocked — again — Gov. Scott Walker’s (R-WI) new law curtailing public employee unions, after the state Republican leadership moved last Friday to circumvent her previous order that blocked the law on procedural grounds. But that’s not the end of the discussion, as it appears the state will continue to defy the order.

The Milwaukee Journal Sentinel reports:

“Further implementation of the act is enjoined,” said Dane County Judge Maryann Sumi.

She noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi’s earlier temporary restraining order.

“Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear,” she said.

But minutes later, outside the court room, Assistant Attorney General Steven Means said the legislation “absolutely” is still in effect.

The Wisconsin State Journal also reports that Sumi has threatened sanctions:

Sumi made her ruling at the end of a day of testimony in the open meetings lawsuit brought by Dane County District Attorney Ismael Ozanne. The hearing is scheduled to conclude on Friday.

“Now that I’ve made my earlier order as clear as it possibly can be, I must state that those who act in open and willful defiance of the court order place not only themselves at peril of sanctions, they also jeopardize the financial and the governmental stability of the state of Wisconsin,” Sumi said.

Following Sumi’s order, the state Democratic Party released this statement from chairman Mike Tate:

“Judge Sumi’s order is a clear rebuke of the lawless reign of Scott Walker. He and his Republican lapdogs have behaved as laws unto themselves in their union-busting state-rending power grab. At the end of the day, the law will prevail and the Constitution will endure against all the insult this crew has committed to the rule of law.”

Interestingly, Jessica Arp from the local CBS affiliate in Madison also reports on Twitter: “Amended TRO [Temporary Restraining Order] also does NOT declare that the bill is not law. Sumi said she needed to hear more arguments to that effect.” Thus, while the state is enjoined from implementing the law, there now exists a gray area as to whether it has officially become law — due to the legal hoops that the law has been through in the past week and a half.

A week and a half ago, Judge Sumi blocked the law on procedural grounds, ruling that a key conference committee used to advance the bill — and to get around the state Senate Dems’ walkout from the state — had violated the state open-meetings law by failing to give proper 24-hours notice. The judge’s order “restrain[ed] and enjoin[ed] the further implementation” of the law, including the prevention of Secretary of State Doug LaFollette (D) from publishing the act in the Wisconsin State Journal. The Journal acts as the state’s official newspaper for the purpose of giving the public official notice of new laws — the final step for the law to take effect. That decision is now going through an appeals process, which remains up in the air.

This past Friday, however, state Republicans had the bill published by a different state agency — the Legislative Reference Bureau, which handles drafting and research for the legislature — according to the LRB’s statutory requirement to publish legislation within ten days of enactment. Notably, the LRB itself has said that this publication does not constitute action that would put the law into effect. But state Republican leaders, including Walker’s office and the state Attorney General, say that the law is now in effect.

And Monday, the Walker administration announced that it was now carrying out the law, with government employees’ paychecks starting on April 21 to contain deductions for contributions to their health care and pensions — and to no longer deduct union dues.

As for today’s proceedings, they focused mainly on taking testimony about the conference committee, and about last Friday’s maneuver. LRB head Stephen Miller reaffirmed his position that the agency’s publication did not cause the law to take effect, and discussed the sequence of events that led to the current situation. WisPolitics reports:

“I did not think that this act of the LRB made the law effective,” Miller said today during testimony in the lawsuit over the budget repair bill. The LRB published the bill Friday despite a temporary restraining order preventing Secretary of State Doug La Follette from setting a date for publication.

Miller, along with LRB Deputy Chief Cathlene Hanaman, also detailed their meeting last Friday with Senate Majority Leader Scott Fitzgerald, R-Juneau, and Senate Chief Clerk Rob Marchant in which Fitzgerald requested that they publish the budget repair bill. Miller also said he briefly consulted with Deputy AG Kevin St. John, who reinforced his belief that the LRB was required to publish the bill and said the agency could be “subjected to mandamus” if it did not act.

In addition, there was some intense argument over whether Democratic Secretary of State Doug La Follette could get his own counsel, rather than the attorney provided to him by Republican state Attorney General J.B. Van Hollen, a key Walker ally. The Milwaukee Journal Sentinel reports:

“There is so great a divergence now between the position that the attorney general is taking in this court and the court of appeals and now the Supreme Court and the interests of the secretary of state and the office of the secretary of state that I believe Mr. La Follette is entitled to independent counsel at the expense of the state,” said Dane County Circuit Judge Maryann Sumi.

The issue arose after La Follette grew frustrated that his attorneys were not asking questions of a witness.

“My attorney won’t ask a question on my behalf,” La Follette told the court.

As Jessica Arp from the local CBS affiliate in Madison reports, there was initially some trouble getting a different lawyer for La Follette, including a false start with a lawyer sent by the governor’s office who ultimately said he could not represent La Follette under the circumstance. There was also the question of who would pay if La Follette chose his own counsel, but he decided to take that course and address those problems later.

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