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March 18, 2011

WI Attorney General Appeals Restraining Order Blocking Anti-Union Law

Posted in: Uncategorized

The Attorney General of Wisconsin, JB Van Hollen, will appeal today’s ruling in Dane County Court of a temporary restraining order against implementation of the anti-union law that strips public employees of their collective bargaining rights. The appeal will go to the 4th District Court of Appeals in the state. Here’s Van Hollen’s statement:

Van Hollen said Supreme Court decisions have made clear that judges may not enjoin the secretary of state from publishing a law, the secretary of state cannot refuse to publish an act because of procedural or constitutional concerns, and acts cannot be enjoined simply because a rule of legislative procedure may have been violated.

This doesn’t seem to be true under Wisconsin law. Here’s how I know. In a compliance document to the open meetings law, prepared by JB Van Hollen himself, he indicates that “a district attorney has authority to enforce the open meetings law only after an individual files a verified open meetings law complaint with the district attorney,” which is precisely what happened in this case. And here’s the key section. Keep in mind that this was written by the guy who’s appealing the ruling:

In addition to the forfeiture penalty, Wis. Stat. § 19.97(3) provides that a court may void any action taken at a meeting held in violation of the open meetings law if the court finds that the interest in enforcing the law outweighs any interest in maintaining the validity of the action. Thus, in Hodge, 180 Wis. 2d at 75-76, the Court voided the town board’s denial of a permit, taken after an unauthorized closed session deliberation about whether to grant or deny the permit. Cf. Epping, 218 Wis. 2d at 524 n.4 (arguably unlawful closed session deliberation does not provide basis for voiding subsequent open session vote); State ex rel. Ward v. Town of Nashville, 2001 WI App 224, ¶ 30, 247 Wis. 2d 988, 635 N.W.2d 26 (unpublished opinion declining to void an agreement made in open session, where the agreement was the product of three years of unlawfully closed meetings).

A court may award any other appropriate legal or equitable relief, including declaratory and injunctive relief. Wis. Stat. § 19.97(2).

That says it in black and white. According to none other than JB Van Hollen, if open meetings laws were violated, and interest in enforcing the law outweighs interest in maintaining the validity of the action, then the court can void the actions taken. And the court can also award injunctive relief. So the court is following exactly the standard set out by Van Hollen. This is check and mate in a legal proceeding, I’d gather. It’s in his own compliance document.

There’s also the fact that Van Hollen sang a totally different tune about this under a separate context:

This sort of language, and the argument that a single judge in one jurisdiction should not be able to override the will of the whole legislative and executive branches, might seem very familiar to people — it’s quite similar to what we’ve heard in the national litigation on health care reform, only with the shoe on the other partisan foot.

On the other hand, when U.S. District Judge Roger Vinson in Florida declared that health care reform was unconstitutional, Van Hollen had a somewhat different take on things:

“Judge Vinson declared the health care law void and stated in his decision that a declaratory judgment is the functional equivalent of an injunction,” Hollen says in a statement. “This means that, for Wisconsin, the federal health care law is dead — unless and until it is revived by an appellate court.”

Van Hollen is a hypocrite, and his statements won’t stand up in court.

Now, the legislature could certainly pass the bill again to comply with open meetings requirements. But if they don’t want to do that, they’ll have to wait until hearings the week of March 28 for the Dane County Court to decide the matter. Judge Sumi also granted a continuance in a second case that challenged the proceedings surrounding the anti-union law.

Jon Erpenbach, one of the Democratic “Fab 14,” twisted the knife a little bit over whether the Republicans would seek to pass the bill again:

State Sen. Jon Erpenbach said he hoped if Republicans took that route they would compromise with Dems, especially with the recall efforts now facing a number of their members.

“I don’t know how many times you can tell public employees and others around the state of Wisconsin that we don’t respect you and we’re not going to pay you and we’re going to break up your union and we’re going to take your collective bargaining rights away twice,” Erpenbach said.


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