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March 11, 2011

First Legal Challenge to Walker Anti-Union Bill in Wisconsin Denied, But Case Will Continue

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Wisconsin’s anti-public employee bill is signed, but the Secretary of State will take the maximum 10 days to publish the legislation, which means it won’t officially become law until March 25 at the earliest, and probably not until the following Monday, March 28. So there are a couple weeks of legal efforts to go here before we see if the bill will become law immediately.

The first attempt at this was blocked by a judge in Dane County court.

Dane County Circuit Court Judge Amy Smith on Friday denied a Dane County request to grant a temporary restraining order that would have blocked Gov. Scott Walker’s collective-bargaining bill [...]

Smith ruled that Dane County did not meet the standard for a temporary restraining order, which calls for the plaintiff to show there would be irreparable harm if the bill is published and becomes law.

“The court is not satisfied that irreparable harm will result,” Smith said.

Smith, however, ordered the county and the state to come back to court on March 16. At the time, the burden of proof will be on Dane County lawyers to make its case.

The Dane County Executive and Board Chairman brought the case, which was based on the violation of open meetings laws that occurred when the Legislature went into conference committee on the budget repair bill. The Madison teacher’s union is trying to join the suit.

Just because this first round in court failed does not mean that the effort will ultimately be unsuccessful. In fact, experts have begun to give their opinion that the bill probably did violate those open meetings laws. The top lawyer for the Wisconsin Newspaper Association, Robert Dreps, thinks the action was illegal:

“Wisconsin’s Open Meetings Law, which applies to the legislature and every other governmental body in the state, requires 24 hours notice before a meeting is convened, “unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.” s.19.84(2). The joint conference committee meeting last night did not state any “cause” for its failure to give 24 notice of its meeting, nor even claim that 24 hours’ notice would be “impossible or impractical.”

“The legislature has given itself authority to deviate from the Open Meetings Law’s requirements in section 19.87(2): “No provision of this subchapter which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.” The Senate Chief Clerk contends last night’s meeting complied with Senate Rule 93, but the meeting at issue was of a Joint Committee of Conference, not a committee of the Senate. Moreover, the posting within the capitol claimed to satisfy the rule’s notice requirement arguably was insufficient because public access to the building was limited at that time.

“The legislature’s reliance on special rules, rather than the explicit notice standards it has imposed on every other governmental body, even if strictly lawful, violates the spirit of the Open Meetings Law and the legislature’s own expressed policy “that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business.” s. 19.81 Political expediency does not provide good cause to violate this official state policy.”

Keep in mind that the Republicans did not even give 2 hours notice, let alone 24. More from Lindsay Beyerstein, who correctly states that, in the even that the violation was ruled by a judge, Republicans could simply hold the meeting again with proper notice and pass the bill out of the various chambers. But I don’t think these Republicans want to have to go through that entire rigamarole again. Moreover, that’s but one of the multiple legal challenges this bill will draw, and not all of them are related to open meetings. Indeed, some strike to the illegality of passing fiscal items in a “non-fiscal bill,” or changing local pensions in a way that violate “home rule” provisions, or the very troubling possibility that the bill was being written while the conference committee and the Senate were voting.

And if all of these legal challenges go nowhere, there are a mess of citizen actions happening. Union members are pulling their money out of M&I Bank, one of the biggest donors to Scott Walker. And there are the special election and recall efforts.

One of the biggest events will occur tomorrow at the Capitol in Madison, when the Fab 14 return to Wisconsin for a homecoming rally. All 14 Democratic Senators will be on hand, along with Green Bay native and Monk star Tony Shalhoub and top trade union leaders.


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