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Wednesday, June 1, 2011

Myths and Facts About Judge Sumi's Decision

Did an “activist judge” really overreach?

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Last week, Dane County Circuit Court Judge Maryann Sumi voided the hastily passed collective bargaining law, finding that the state Senate had violated the state's Open Meetings Law when a conference committee was assembled and Republican senators voted on the bill without giving the statutorily required 24-hour notice.

“This case is the exemplar of values protected by the Open Meetings Law: transparency in government, the right of citizens to participate in their government, and respect for the rule of law,” Sumi concluded.

The judge emphasized that her decision did not address the content of the bill, but, rather, the process by which it was passed.

“It is not this court's business to determine whether 2011 Wisconsin Act 10 [the collective bargaining bill] is good public policy or bad public policy; that is the business of the Legislature,” Sumi wrote. “It is this court's responsibility, however, to apply the rule of law to the facts before it.”

Although Sumi's decision is straightforward and clear, Republicans who pushed the bill are having none of it.

Instead, they are attacking Sumi as an “activist judge” and claim that she has violated the separations of power doctrine and therefore has no right to void the bill.

So who's right?

The Charge:
Judge Sumi is biased because her son is a “union leader.”

The Response
: Sumi's husband, Carl Sinderbrand, wrote in an op-ed that their son Jacob, fresh out of college, “worked as a canvasser for two unions during the 2008 election cycle” by knocking on doors to solicit signatures. He eventually was promoted to train other field staff. He now works two non-union jobs.

The Charge:
“Act 10 was passed and signed into law in accordance with the rules of the state Legislature,” said Assembly Speaker Jeff Fitzgerald (R-Horicon).

The Response:
“The evidence demonstrated that the March 9, 2011, committee meeting was held on less than two hours notice in a location that was not open and accessible to citizens,” Sumi wrote. She further argued that no legislative rule allowing a less-than-two-hour notice was offered as evidence. “Two days of testimony, numerous exhibits and multiple briefs have revealed nothing that would support a finding that a conflicting legislative rule was in effect at the time,” Sumi wrote.

The Charge:
“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,” said Senate Majority Leader Scott Fitzgerald (R-Juneau).

The Response:
The Open Meetings Law itself is pretty clear on this point: “Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred,” the statute reads.

Sumi wrote that the Legislature cannot exempt itself from a law—passed by that very body—that includes enforcement provisions.

“The Legislature and its committees are bound to comply with the Open Meetings Law by their own choice,” Sumi wrote. “Having made that choice, they cannot now shield themselves from the provisions that give the law force and effect.”

The Charge:
“The ruling by a Dane County judge could lead to thousands of pink slips at the end of June for teachers in Wisconsin,” alleged state Sen. Alberta Darling (R-River Hills), the co-chair of the budget-writing Joint Finance Committee.

The Response:
While it is true that teachers could be laid off in the coming school year, that could be alleviated if the state fully funded education, instead of cutting K-12 education in the state budget to the tune of $800 million.

In addition, the state Legislature could put this case behind them by re-voting on the collective bargaining bill with the proper 24-hour notice as required by the Open Meetings Law. However, Republicans are reluctant to go on the record with two votes in favor of the bargaining-rights-stripping bill, especially since six Republican senators are facing recall elections for their support for union busting. Republicans are also making noises about inserting the collective bargaining provisions into the larger biennial budget, but that hasn't happened yet. But instead of re-passing the law, Republican leaders are hoping that the conservative majority on the state Supreme Court, which includes Justice David Prosser, will get them out of this jam by agreeing to hear the case and then ruling in their favor and overturning Sumi's decision.

The Charge:
Department of Justice lawyers argue that Judge Sumi should be removed from the case because she defended her right to void the law in a brief filed with the state Supreme Court.

The Response:
As noted by Milwaukee attorney Tom Foley on his Illusory Tenant blog, the state Supreme Court ordered Judge Sumi to file a response to the petition filed by Department of Administration Secretary Mike Huebsch and the Department of Justice. “Yes, ordered,” Foley wrote.
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