Judge Sumi Strikes Down Boss Walker's Union Busting Law

[Patrick Degan]

The first step in reigning in the lawless Wisconsin state government was taken when Judge Maryanne Sumi of Dane County formally ruled the union-busting bill illegal and therefore null and void —at least for now:

A Dane County judge Thursday struck down legislation repealing most collective bargaining for public employees, but the measure could still gain new life from the state Supreme Court or a fresh vote by lawmakers.

In a 33-page decision, Dane County Circuit Judge Maryann Sumi overturned the legislation and ruled that GOP lawmakers broke the state's open meetings law in passing it March 9 amid raucous protests by union supporters. The legislation would limit collective bargaining to wages for all public employees in Wisconsin, except for police and firefighters, and impose cuts in their health and pension benefits to help balance a massive state budget shortfall.

On March 18, Sumi had placed a temporary hold on the law, but Thursday's ruling voided it - at least until the Supreme Court decides whether to act in the case.

"It's what we were looking for," said Dane County District Attorney Ismael Ozanne, a Democrat, even as he acknowledged the higher court could have the final say.

The ruling - the latest kicker in a tumultuous three and a half months - could push GOP lawmakers to pass the collective bargaining measure again. It also highlights the importance of Supreme Court Justice David Prosser's election to the sharply divided court following a statewide recount - one that Prosser opponent JoAnne Kloppenburg is still considering whether to challenge. And in a sign of the financial stakes, a legislative panel Thursday voted to drop $30 million in savings from employee benefits that the legislation would have delivered by June 30.

Ozanne sued to block the bargaining law after Assembly Minority Leader Peter Barca (D-Kenosha) filed a complaint saying that GOP leaders had not given proper notice to the public in convening a conference committee of lawmakers from both houses to approve Walker's budget-repair bill.

Steven Means, the executive assistant to GOP Attorney General J.B. Van Hollen, said that he was surprised by Sumi's handling of the case. In a letter Wednesday, just a day before the latest ruling, Department of Justice attorneys asked whether Sumi would recuse herself.

"Obviously, we're disappointed in the ruling. We do think it reflects a number of legal errors, but it's for the appellate courts at this point," Means said.

Means said courts have no authority to overturn the acts of lawmakers based on a state law and could only do so if they violated the constitution. He said that Sumi had made her decision without holding a trial or making clear beforehand that no trial would be held.

In the decision, Sumi appeared to be bracing for an outcry from supporters of the law, noting that judges are supposed to apply the law even if their decisions will be "controversial or unpopular."

Sumi wrote that Ozanne showed by "clear and convincing evidence" that the open meetings law had been violated and that past lawmakers had intended for their actions to be bound by that law. She also said the law carried a constitutional force because the state constitution says the doors of each house of the Legislature must remain open when lawmakers are in session.

While the conference committee was meeting, all but one entrance to the Capitol was closed by police, and long lines developed as people tried to get in the building.

"The Legislature and its committees are bound to comply with the open meetings law by their own choice. Having made that choice, they cannot now shield themselves from the provisions that give the law force and effect," wrote Sumi, who was appointed to the bench by former Republican Gov. Tommy Thompson.

Speaking to reporters after a speech to the Waupaca Chamber of Commerce Thursday, Walker noted the state Supreme Court would hold oral arguments on whether to take the case June 6.
Weighing options

"Either it will be resolved like that - through the Supreme Court - or we'll look at alternatives with the Legislature," Walker said.

Walker and GOP lawmakers such as Senate Majority Leader Scott Fitzgerald (R-Juneau) have said they would consider passing the legislation a second time as part of the 2011-'13 state budget bill so it can take effect. GOP lawmakers are committed to passing that bill by June 30.

Thursday, the Legislature's Joint Finance Committee voted unanimously to no longer seek $30 million in employee benefits savings that the collective bargaining legislation would have produced in its first months.

During debate over the bargaining legislation in March, Democrats repeatedly said that there was no need to rush a vote. They said there was time to reach a compromise with unions, saying that negotiating would ultimately deliver the savings more quickly anyway .

Walker spokesman Cullen Werwie said the state would now be able to balance its budget for the fiscal year ending June 30 without the $30 million in savings. That's because, compared to the estimates available in March, the Legislature's nonpartisan budget office now estimates that state tax revenue will be $636 million higher through mid-2013.

"The fiscal situation was much different at that point," Werwie said.

Of Sumi's ruling, Fitzgerald said in a statement: "There's still a much larger separation-of-powers issue: whether one Madison judge can stand in the way of the other two democratically elected branches of government. The Supreme Court is going to have the ultimate ruling.... This overdue reform is still a critical part of balancing Wisconsin's budget."

Ozanne agreed the case is far from settled.

"It's not over yet. I'm positive of that," Ozanne said. "The supremes are the supremes. They can do what they want."

Barca called the decision that grew out of his complaint a "huge win for democracy in Wisconsin" and urged Republicans not to plug the collective bargaining changes back into the state budget, saying they should instead look for compromise with state unions to save money.

"It is not healthy for Wisconsin for us to be such a divided state," he said.

Marty Beil, executive director of the Wisconsin State Employees Union, said the decision promotes open government.

"I think it's a victory for sunshine, for the citizens of this state, not just us.... Do we see this as a permanent victory? No, but we see it as a victory today," he said.

Rick Esenberg, a Marquette University law professor who has followed the case closely, said Thursday he was not surprised that Sumi decided to invalidate the bill but was surprised that she did it now.

"She had clearly indicated that was her view," he said. But "you had the sense that she had established that she wasn't going to rule this early, but apparently she decided she needed to do it."

The GOP lawmakers accused of violating the open meetings law cannot be sued during the legislative session. But Sumi ruled the lawsuit to strike down the bargaining legislation could continue because the lawmakers were not "indispensable" parties and because the part of the case seeking fines against them could be set aside for now.

Recalls pending

The Capitol drama over the collective bargaining bill, which drew tens of thousands of protesters to the Capitol, is expected to continue for months to come. Lawmakers' stances on the bill sparked petition drives around the state to recall them and those elections will be held July 12.

Nine senators - six Republicans and three Democrats - are targeted. The elections put control of the Senate in play.

In addition to the open meetings case, there are two other lawsuits over the measure, and other court challenges could come later. If Republicans eventually succeed in defeating the open meetings objections, the legal battle will shift to whether the legislation itself can be challenged.

Republicans who run both houses of the Legislature intended to quickly pass the collective bargaining bill in February, but were stymied when Democratic senators drove to Illinois and left the Senate without enough lawmakers to act on the bill. Three weeks later, on March 9, Republicans with little notice created a conference committee to amend the bill so it could be passed in the Senate without any Democrats present.

Republicans have insisted they passed the collective bargaining measure correctly. They said the committee was subject to legislative rules, rather than the open meetings law.

The open meetings law says 24 hours' notice must be given for most public meetings, but two hours' notice can be given for good cause. Senate staff testified they posted announcements about the meeting on bulletin boards in the Capitol and sent emails to legislators about it some time after 4 p.m. - less than two hours before the committee was to meet at 6 p.m.

Once the meeting was announced, 20 members of the public were allowed into the room where the committee held its sole, brief meeting, Senate Sergeant-at-Arms Ted Blazel testified. The room was otherwise filled with legislative staff and members of the media.

After people were barred from entering the meeting room, those trying to get in started a spontaneous petition to make a record of what happened. It was signed by 2,967 people.

Barca was the only Democrat at the meeting, and he pleaded with the Republicans to halt the session because he believed they were violating the open meetings law.

In her decision, Sumi wrote that the meeting was "held on less than two hours notice in a location that was not open and accessible to citizens."