Let's have some truth-telling about State of Wisconsin ex. rel. Ozanne v. Fitzgerald, shall we? That would be the June 14 decision of the Wisconsin Supreme Court that overturned Dane County Circuit Judge Maryann Sumi and allowed the collective bargaining changes for public employees to become law.
I write because our acquaintances of the minority political persuasion -- that being progressivism -- are finding succor in the Chief Justice Shirley Abrahamson's astonishing -- and vindictive -- minority dissent. This minority view has prompted Ms. Emily Mills, for one, to declare that, "Something is definitely amiss on our high court."
Something is amiss, as I shall explain.
The high court's 4-3 majority found Judge Sumi guilty of a classic judicial overreach in her decision prohibiting publication of the public employee collective bargaining changes. That decision, the majority found, was prohibited by numerous Supreme Court precedents -- all of which Sumi ignored.
Marquette law professor Rick Esenberg is correct: "This was not a hard case." It really was an easy call -- one that the minority, led by Chief Justice Abrahamson -- never disputes. Her dissent merely requests more time to deliberate the case. Much more time.
1. An unconstitutional bill?
Consider that Judge Sumi never ruled any law unconstitutional. Instead, she enjoined a bill -- a bill, not a law -- from even becoming law by instructing the Secretary of State to not officially publish. When have you ever heard any court doing that at either the state or federal level?
The majority cited Goodland v. Zimmerman (1943) as the operating precedent. That court observed:
There is no such thing known to the law as an unconstitutional bill. A court cannot deal with the question of constitutionality until a law has been duly enacted and some person has been deprived of his constitutional rights by its operation.
2. Micromanaging the legislative process
The state's high court resolved a more important question. Do we really want judges second-guessing every step of the legislative process? Do we want endless litigation to micro-manage every committee hearing, amendment, and motion? If so, whichever party is in the minority will go crying to the courts every time they lose a vote. Judge Sumi actually ruled that the Senate Parlor, where the meeting was held, violated the Open Meetings Law because it was too small to hold the hordes of protestors who had laid siege to the Capitol!
Another precedent: State ex rel. La Follette v. Stitt (1983) holds:
If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid.
3. The state constitution was not amended
Liberals cite Abrahamson's notation that "the legislature declared in the Open Meetings Law that the legislature would comply with the Law to the fullest extent."
As much as the legislature may have declared, no mere statute can amend the Constitution. That requires the action of two successive legislatures and a referendum of the people. Never happened.
Article IV, Section 10 of the Wisconsin Constitution requires only that "The doors of each house shall be kept open except when the public welfare shall require secrecy."
The doors, Justice Prosser notes, were open. So open that WisconsinEye broadcast the proceedings live, spectators filled the room, and the meeting made Page One news and the evening newscasts. No secrets here.
Furthermore, the Legislature itself carved out four exceptions to Open Meetings (Sens. Risser and Cullen, both Democrats, authored these exceptions, I believe.) Specifically, Open Meetings "shall not apply to any meeting of the legislature or a sub-unit thereof called solely for the purpose of scheduling business before the legislative body."
Indeed, the meeting at issue was the Joint Conference Committee of March 9, 2011 -- a committee that merely schedules the Legislative calendar. Let's also remember that the full Assembly and the entire Senate debated the issue and took their votes fully noticed in public view.
4. Partisan judicial delay tactics
Not one of the three dissenters upheld Circuit Judge Sumi, they merely asked for more time and argued that the case was taken as an original action, rather than as an appeal. Abrahamson alleges, "This court gives this important case short shrift."
She wanted the case to leisurely wend its way through the full appellate process, including intermediary courts. Justice Prosser deflates the dilatory approach this way:
The time required to sort out this procedure and follow the court's traditional briefing schedule would deny the petitioners timely relief by delaying the case until the court's next term, at the earliest. The majority deems this unacceptable considering the gravity of the issues and the urgency of their resolution.
In other words, Abrahamson's clique wanted to game the system in order to buy time for the Democrats to make their political comeback, either in this summer's recall elections or in the 2012 election cycle in a case brought by Democrats, including the Assembly minority leader and the Dane County district attorney, against the majority party.
Prosser injected a note of reasonableness to the law:
Simply stated, no matter how long we waited to consider a perfect appeal, the legal issues before the court would not change. Whether the case is decided now or months from now at the height of the fall colors, the court would be required to answer the same difficult questions. Delaying the inevitable would be an abdication of judicial responsibility; it would not advance the public interest.
5. Undermining respect for the court from within
Abrahamson gets petty in her injudicious dissent. How's this for score-settling:
Justice Prosser's concurrence is longer than the order. ... It is long on rhetoric and long on story-telling that appears to have a partisan slant.
Very clever of Justice Abrahamson, never mind that her dissent is also longer than the order. It is an oft-used rhetorician's trick: go on offense; accuse your opponent of taking the low road.
The best one can say about Abrahamson is that she is a sore loser. If she does not get her way on the court she will bring down the entire house around her.
This kind of order seems to open the court unnecessarily to the charge that the majority has reached a pre-determined conclusion not based on the facts and the law.
Except that the majority decision and Judge Prosser's concurrence cite 12 Wisconsin Supreme Court precedents and those of nine other states, by my count. Abrahamson cites none.
She doesn't frankly care
But she's not there! The Wisconsin Reporter tells of one Shelly Moore of River Falls, a Democrat and unionized teacher (but I repeat) vying to unseat state Sen. Sheila Harsdorf in a recall election this summer. The poor dear illegally used her public-school email account for campaign-related business, according to a complaint filed Wednesday by the Republican Party of Wisconsin, between February and April to organize the recall of Harsdorf and to discuss political activity and union-organized political events.
In an email dated March 10, Moore wrote, "We are not supposed to use school email, but since all of our rights are being taken away, I don't frankly care."
An end to chronic deficits
The MacIver Institute calls the 2011-2013 state budget "the most fiscally responsible two-year Badger State spending plan in at least a generation."
It pays the bills, is short on accounting gimmicks, restrains spending and includes measures that will improve government efficiency and invigorate the private marketplace in order to help individuals and businesses here create jobs.
Nonetheless, MacIver proposes 10 vetoes Governor Walker should consider before he signs the budget into law Sunday in Green Bay.