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If you're confused about yesterday's Supreme Court ruling on a legislative joint conference committee's possible violation of the Open Meetings Law, join the club.
Because it really doesn't make much sense at all.
It's certainly not a carefully crafted decision by the so-called “conservative” bloc on the state Supreme Court. You know, the four justices—Michael Gableman, Patience Roggensack, David Prosser and Annette Ziegler—who would never, ever overreach.
Last week, the state Supreme Court heard arguments about whether it should take up the case—even before an appeal of Judge Maryann Sumi's decision could be filed.
Normally, that would take weeks to decide, says former Justice Janine Geske. Then, if the court decided it would hear the case, there would be formal arguments, piles of evidence and so on. And then the decision.
Here's Geske, in a Wispolitics.com interview posted on Monday:
“Take” the case. Not “decide” the case.
But in one fell swoop, the “conservative” bloc on the court decided that they had heard enough and decided that they not only would take up the case but decide it at the same time.
Stunning.
So much for judicial conservatism.
Now, there are a ton of procedural “anomalies” at work but I'll spare you the details.
But the effect is that the state Supreme Court is destroying itself.
I'll let state Supreme Court Justice Shirley Abrahamson take it from here:
What really happened is that the state Supreme Court transformed itself into a trial court. Here's CJ Abrahamson again:
And here comes her outrage:
Justice Patrick Crooks wrote his own dissent, joined by Abrahamson and Justice Ann Walsh Bradley, that focused on all of the procedural errors made by the majority:
So much for the majority's “conservatism.” You know, respect for precedent and all that.
In addition, Crooks argued that the majority didn't even touch the big, constitutional issues presented by the case: Is the Open Meetings Law constitutional? Can a law be voided because the legislature violated the Open Meetings Law while passing it? Does a court have the power to block the publication of a law? Even when it is “invited” to do so by the Legislature?
Perhaps the weirdest part of the majority's decision is that there is no real substantive discussion of the Open Meetings Law itself. And isn't that what this case is all about?
Because it really doesn't make much sense at all.
It's certainly not a carefully crafted decision by the so-called “conservative” bloc on the state Supreme Court. You know, the four justices—Michael Gableman, Patience Roggensack, David Prosser and Annette Ziegler—who would never, ever overreach.
Last week, the state Supreme Court heard arguments about whether it should take up the case—even before an appeal of Judge Maryann Sumi's decision could be filed.
Normally, that would take weeks to decide, says former Justice Janine Geske. Then, if the court decided it would hear the case, there would be formal arguments, piles of evidence and so on. And then the decision.
Here's Geske, in a Wispolitics.com interview posted on Monday:
Geske, now a professor at Marquette University Law School, said before oral arguments, one of the justices would have been randomly selected by the chief justice to act as the report judge and direct discussions after the hearing. Following those talks, someone from the majority will be selected to write a decision and will begin crafting it before circulating it to the other members. That draft will then be critiqued and those in the minority can write their dissent. Once the dissent is in, the majority opinion will be redrafted to respond and both sets of opinions will go through final revisions.
She said it would normally take her two to three weeks to draft a majority opinion while she was on the bench, in part because of the other cases she was handling.
This case is more complex because there are two issues at play. One is whether the court should take the case without first allowing the final pieces to play out at the circuit court and appeals court.
She said her impression of the oral arguments suggested at least a majority of the court is prepared to take the case now.
“Take” the case. Not “decide” the case.
But in one fell swoop, the “conservative” bloc on the court decided that they had heard enough and decided that they not only would take up the case but decide it at the same time.
Stunning.
So much for judicial conservatism.
Now, there are a ton of procedural “anomalies” at work but I'll spare you the details.
But the effect is that the state Supreme Court is destroying itself.
I'll let state Supreme Court Justice Shirley Abrahamson take it from here:
The order and Justice Prosser's concurrence are based on errors of fact and law. They inappropriately use this court's original jurisdiction, make their own findings of fact, mischaracterize the parties' arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891. This case law recognizes a court's power to review legislative actions in enacting laws when constitutional directives are at issue.
What really happened is that the state Supreme Court transformed itself into a trial court. Here's CJ Abrahamson again:
Where do all of these facts come from? Not from the certification proceedings (which the order denies) or from the petition for supervisory writ (which the court transforms into an original action). Not from the decision or final judgment of the Dane County Circuit Court. Indeed, some of the “findings of fact” are in direct contravention of the facts found by the circuit court. By casting this as an original action, the four justices are able to skirt facts that may impede the rush to their ultimate destination.
The four justices are entitled to their opinions, but they are not entitled to their own facts. This court is not a fact-finding court.
If the findings of fact are required in the exercise of our original jurisdiction, there are procedures for getting those facts. Instead of adhering to those procedures, the four justices set forth their own version of facts without evidence. They should not engage in this disinformation.
And here comes her outrage:
This constitutional provision Article IV, Section 10 of the Wisconsin Constitution [the “doors of each house shall be kept open” provision, which provides the basis of the Open Meetings Law], has never before been interpreted by this court or any Wisconsin court. The order interprets and dismisses the constitutional provision in four short sentences without citation or rationale—an unsupported, four-sentence interpretation of a fundamental constitutional guarantee ensured by the people of Wisconsin!
After stating its own factual findings, the order dismisses the significant constitutional argument with four words: “Access was not denied.” By this interpretation, the constitutional right of the people to know what its legislature is doing has been significantly minimized, if not eliminated.
Justice Patrick Crooks wrote his own dissent, joined by Abrahamson and Justice Ann Walsh Bradley, that focused on all of the procedural errors made by the majority:
There is no question that these issues are worthy of this court's review. But procedures matter—to the courts, the legislature, and the people of Wisconsin. There is a right way to address these issues and a wrong way. The majority chooses the wrong way by refusing to take this case through the appropriate procedural mechanism, and by rushing to issue an order without sufficient examination or a complete record.
So much for the majority's “conservatism.” You know, respect for precedent and all that.
In addition, Crooks argued that the majority didn't even touch the big, constitutional issues presented by the case: Is the Open Meetings Law constitutional? Can a law be voided because the legislature violated the Open Meetings Law while passing it? Does a court have the power to block the publication of a law? Even when it is “invited” to do so by the Legislature?
Perhaps the weirdest part of the majority's decision is that there is no real substantive discussion of the Open Meetings Law itself. And isn't that what this case is all about?
