The Wisconsin Supreme Court, just hours before a deadline imposed by state legislative Republicans, just reinstated the anti-union law which a district court judge had blocked because it violated state open meetings requirements. They made the novel interpretation that those requirements don’t apply to the legislature.
The court found a committee of lawmakers was not subject to the state’s open meetings law, and so did not violate that law when they hastily approved the measure and made it possible for the Senate to take it up. In doing so, the Supreme Court overruled a Dane County judge who had struck down the legislation, ending one challenge to the law even as new challenges are likely to emerge.
The majority opinion was by Justices Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler. The other three justices – Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks – concurred in part and dissented in part.
Not that I have to tell you this, but the four who signed the majority opinion were all nominated by Republicans, while the three who dissented were all nominated by Democrats.
You can read the highly ideological ruling here, claiming that “one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.” This ruling literally holds the state legislature in a different position under the law than all other public entities. They say flat-out “The court declines to review the validity of the procedure used to give notice of the joint committee on conference,” the point upon which the entire case turns. They’re essentially saying that the court will not get involved in enforcing the open meetings law, saying that such enforcement is a matter of “purely legislative concerns.” They hang their ruling on the idea that Dane County Court judge Maryann Sumi cannot enjoin the publication of an act to stop it from becoming law, and then expressly ignore the procedural matters that caused her to act in that fashion. It’s a total abdication by the branch designed to settle disputes of this nature.
You could argue that the law would have to be published before someone can come forward and give reason to have been harmed by it, but the court stymies that with this passage: “Nonetheless, no useful purpose would be served by inviting a new series of challenges to 2011 Wisconsin Act 10 after publication of the Act has been completed.” In other words, regardless of how the bill was passed, tough luck, it’s law, good-bye. What we have here is a court saying “If the Legislature does it, then it’s not illegal.”
In theory, there will be other challenges to the law. One will argue that it was fiscal in nature, and therefore, needed a quorum in the Senate it never received. One other will argue that the provisions on health care and pension contributions violate local “home rule” requirements.
But in practice, I’d say that the state Supreme Court threw down a marker, saying pretty clearly that they will do whatever it takes to get this law implemented. The timing is pretty transparent. Legislative Republicans said that if they did not receive an opinion from the Supreme Court by this afternoon, they would go ahead and try to pass the law a second time. Prior to today, the state Supreme Court gave no indication of a timetable for their decision. In fact, they never said definitively they would even TAKE the case, which was the point of the June 6 hearing. And then, with “unusual speed” according to the Milwaukee Journal-Sentinel, out comes this ruling. They accepted and decided the case on the same day, as the dissent from Justice Shirley Abrahamson points out.
So the fix is in. It shows you why that state Supreme Court election, which resulted in a narrow victory for Republican David Prosser, was so important. The Wisconsin Supreme Court looks to be a complement to Scott Walker and his agenda, a backstop for whatever actions they choose to take.
Certainly this could add fuel to the recalls. But public employees have lost most of their collective bargaining rights, and unions will wither in the state as a result. Scott Walker may lose a few battles, but he’s won the war.