Judge Blocks Wisconsin’s Union-Busting Bill On Procedural Grounds

March 18, 2011 8:11 a.m.

A state judge in Wisconsin has just issued a temporary restraining order blocking Gov. Scott Walker’s (R-WI) newly-passed law curtailing public employee unions, on the grounds that the GOP-controlled legislature appeared to have violated state public notice requirements when quickly passing the bill last week.

“It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (law),” wrote Judge Maryann Sumi, the Milwaukee Journal Sentinel reports.

A key thing to note here is that this is a procedural objection, and not a constitutional finding based on the content of the law itself. As such, even if the bill’s opponents secure a permanent injunction in further litigation — and then prevail in any appeals to higher courts — the Republican-controlled legislature could still theoretically get together and pass the bill again.

But of course, that would involve having the legislature convene again, protesters swarming the Capitol again, and a very tough vote occurring in a rerun. Even if the Republicans were willing to do that, it would only give further political fuel to the Dems.As readers might recall, the minority state Senate Democrats had fled the state in order to block a three-fifths budget quorum required when the collective bargaining proposals had been introduced as part of a budget repair bill. After a standoff of about two weeks, the state GOPers instead decided to convene a special conference committee to take the overall bill and strip out what they deemed to be fiscal items, leaving the collective bargaining provisions, in order to circumvent the three-fifths budget requirement.

At that hastily convened conference committee meeting, Assembly Minority Leader Peter Barca (D) attempted to raise a procedural objection — saying that the committee had violated the state’s open meetings law, which requires at least 24 hours notice before a government meeting, unless there is good cause to act more quickly. The next day, state Senate Majority Leader Scott Fitzgerald’s (R) office released a memo from the Senate Clerk, arguing that they didn’t have to give notice at all under a Senate rule, and that the two hours’ notice employed here was sufficient.

In response, Dane County District Attorney Ismael Ozanne (D) brought a lawsuit, seeking to nullify the conference committee’s action based on the alleged open-meetings violation — which would have a domino effect of voiding the final passage votes in the Senate and Assembly, which were based on and followed the special conference committee’s actions.

And as of now, a judge in Dane County has ruled that the plaintiff has a high chance of winning, and issued the temporary restraining order.

Walker’s office is remaining publicly confident, WisPolitics reports:

“This legislation is still working through the legal process,” spokesman Cullen Werwie wrote in an e-mail. “We are confident the provisions of the budget repair bill will become law in the near future.”

The state is already hinting at a possible appeal, the Journal Sentinel reports:

Assistant Attorney General Steven Means, who was part of the state’s legal team, said after the ruling that “we disagree with it.”

“And the reason they have appellate courts is because circuit court judges make errors and they have in this case.”

Asked if the state would appeal, Means said: “We’ll have to think about that.”

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