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Walker's Bill Faces New Legal Challenges

Temporary restraining order is just the beginning

Apr. 6, 2011
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For fans of legal dramas, Madison is the place to be these days.

Last week, Dane County Circuit Court Judge Maryann Sumi reaffirmed her decision that a temporary restraining order (TRO) be placed on Act 10, more commonly known as Gov. Scott Walker's controversial collective bargaining bill.

That TRO is in effect for at least seven weeks—or until Republican legislative leaders decide to waive immunity and testify in court as to why they scheduled a March 9 joint conference committee and a Senate vote within two hours of alerting fellow legislators and the public. That may have violated the state's Open Meetings Law, which requires a 24-hour public notice of meetings. The state is arguing that the public was properly notified of the conference committee meeting.

Sumi's TRO in Ozanne v. Fitzgerald has halted the implementation of Act 10 for now. But at least two additional cases have been filed to challenge its legality and more may be in the works. The cases challenge both the process by which Act 10 was passed, as well as its content.

In theory, at least, if Judge Sumi's temporary restraining order is lifted because the court finds that the bill was passed properly, the cases targeting the content of the bill—the gutting of public employees' bargaining rights—could still move forward.

The Public Was Shut Out

Dane County District Attorney Ismael Ozanne's case alleges that the hastily called joint conference committee—where non-fiscal items were stripped out of the budget repair bill, allowing the collective bargaining changes to be voted on without a 20-person quorum in the state Senate—violated the state's open meetings law. In response, Republican Attorney General J.B. Van Hollen argues that the judiciary cannot intervene in the affairs of the state Legislature and, furthermore, the bill was passed with adequate public notice.

Testimony taken last Friday seemed to bolster Ozanne's claim that the Open Meetings Law had been broken when notice of a 6 p.m. conference committee meeting on March 9 had been made public after 4 p.m.

Senate Chief Clerk Rob Marchant testified that although state statutes call for 24-hour notice of meetings, "custom, usage and precedent" of the state Senate allows for hearings to be called on a shorter notice. He admitted that he couldn't recall any reason given by Republican legislators as to why the vote could not have been held on March 10, after the 24-hour waiting period.

Other witnesses told the court about the public's lack of access to the state Capitol and the conference committee.

Edward Blazel, Senate Sergeant at Arms, testified that he was told to have the Senate parlor ready for a conference committee to be held at 6 p.m. on March 9. The room, adjacent to Senate Chambers, can only hold legislators, staffers, media, and about 20 members of the public. Other venues—such as the Senate Chambers, which has a gallery that seats about 96, and the Assembly Chambers, which has a gallery with a seating capacity of about 120 to 150 people—were not being used at the time, he said.

Rich Judge, chief of staff to Assembly Minority Leader Peter Barca (D-Kenosha), testified that announcements are made each night to warn visitors that the Capitol closes at 6 p.m. Therefore, members of the public, unaware of the legislative drama being played out behind the scenes, were encouraged to leave on time, before the conference committee meeting and Senate vote. Only one entrance to the Capitol was open after 6 p.m.

Judge also testified that he received a stack of petitions that had been signed by 2,967 members of the public who said that they had been denied access to the Capitol.

Of course, the TRO could be lifted and the procedural issue could be settled if the Legislature scheduled another vote on the bill with proper notification of the public. But, as of this writing, it appears that Assembly Speaker Jeff Fitzgerald (R-Horicon) and his brother, Senate Majority Leader Scott Fitzgerald (R-Juneau), are not planning to have legislators cast yet another vote on such a politically toxic bill. Republican leaders have also argued that a re-vote isn't needed because the original vote was legitimate.

Rep. Barca said on Monday that he believed that Republicans would be true to their word and not schedule another vote on the bill.

"It's about the public trust," Barca said. "This bill has had more attention than probably any bill we've had in the past four decades. Obviously the public wants to be informed about when these bills come up."

Will the State Supreme Court Weigh In?

Adding another wrinkle to the Ozanne case is the petition filed by DA Van Hollen, acting on behalf of Secretary of State Doug La Follette, asking for the TRO to be lifted so that Act 10 can be published. A state appeals court punted on this case and has asked the state Supreme Court to weigh in on two questions: whether an act can be struck down if the Legislature has violated the open meetings law, and whether a court has the authority to prevent the secretary of state from publishing an act before it becomes law.

The state Supreme Court hasn't indicated whether it would take up the appeals court's questions.

Tuesday's elections could be a factor. Supreme Court Justice David Prosser, up for re-election, will remain on the court until July 31, regardless of Tuesday's election result. Prosser commonly makes up the four-member conservative bloc on the court. If the court takes up the case, would it make a decision while Prosser is still on the bench? Will the court's actions be affected if Assistant Attorney General JoAnne Kloppenburg wins on Tuesday? These questions will be answered in the coming weeks.

Constitutional Violations "Shock the Collective Conscience"

Unlike DA Ozanne's procedure-only challenge to the collective bargaining bill, at least two other cases are moving forward that take issue with the bill's content, as well as the manner in which it was passed.

Dane County, Dane County Executive Kathleen Falk and Dane County Board Chair Scott McDonell claim in documents filed in circuit court last week that "the constitutional violations at issue here were not inadvertent errors—these actions shock the collective conscience because they were deliberate."

First, the Dane County plaintiffs echo the reasoning in the Ozanne case that the bill is unconstitutional because the public wasn't properly notified of the vote.

But the plaintiffs go further by arguing that Act 10 also violates the state Constitution because it contains fiscal items and therefore required a two-thirds quorum in each house of the state Legislature. Some of those fiscal measures include changing the Earned Income Tax Credit, moving $2 million from the Department of Children and Families fund to the general fund, and lapsing $4.5 million from the Department of Health Services.

But the bill was passed in the Senate on March 9, just minutes after the conference committee was convened, with only 19 members present—all Republican—falling short of the 20-member quorum. The bill passed on an 18-1 vote.

Lastly, the Dane County plaintiffs argue that the bill violates the state Constitution because it did not fall within the scope of the special session called by Gov. Walker in January to address an "economic emergency." Republicans argue that the collective bargaining bill is "non-fiscal" but "related to the budget repair bill" and was therefore relevant to the special session of the Legislature.

But the Dane County plaintiffs say the Republicans are contradicting themselves. "By claiming that they have removed all fiscal items from a bill touted to repair the budget and introduced during a special session called to confront a purported economic emergency, defendants essentially concede that Act 10 is outside the scope of the economic emergency declared by the Governor and thus is constitutionally invalid. In other words, the Governor and the legislature cannot have it both ways. The bill is either a fiscal remedy to an economic emergency, or it is not."

In addition to the Dane County case, a group of Madison-based labor unions has filed a suit challenging the constitutionality of Act 10, claiming that the bill violates the equal protection clause of the Constitution because it treats employees differently without a rational basis, and violates the right to freely assemble because it unfairly weakens public employee unions.

Wild Cards

On the sidelines of this legal drama are the state's largest public employee unions, which have not filed suit over the passage or implementation of Act 10.

Former Democratic Attorney General Peg Lautenschlager, who represents Wisconsin State Employees Union AFSCME Council 24, said the unions are watching the cases carefully. She said the unions are concerned about the possible open meetings violation as well as Act 10's impact on represented workers' ability to collectively bargain and participate in the political process.

"We are seriously contemplating legal action," Lautenschlager said on Monday.

Another challenge could come from the city of Milwaukee, although no case has been filed, over whether Act 10's affect on the city's pension plan violates the state Constitution's home rule provision, which limits the power of the state Legislature to deal with the local affairs and government of cities and villages. That issue had been raised in a Feb. 28 letter from Milwaukee City Attorney Grant Langley. Act 10 also impairs the constitutional contract rights of the employees who participate in the pension fund, Langley argued in his letter.

On Monday, Langley told the Shepherd that he had not received a response to his letter and that he hasn't heard of anyone questioning the content of his letter or its accuracy.

"The question is, if they can do this, what other things can they do with the pension plan?" Langley said.


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