Wisconsin Supreme Court will hear issues in case that halted budget
repair bill
Issues concerning the the budget repair bill, the Open Meetings Law,
and the separation of powers doctrine lie in wait as Wisconsin Supreme
Court takes first step.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
June 3, 2011
– The Wisconsin Supreme Court will hear oral argument June 6
on issues stemming from Gov. Scott Walker’s controversial Budget
Repair Bill (2011 Wisconsin Act 10), which was originally halted in
March when Dane County Circuit Court Judge Maryann Sumi issued a
temporary restraining order enjoining its publication.
In a May 26 decision and final
order in State v. Fitzgerald, No. 11CV1244, Sumi
permanently voided Wis. Act 10, declaring Republican legislators
violated Wisconsin’s Open Meetings Laws in passing it back on
March 9 during a meeting of the Joint Committee of Conference.
In that final order, Judge Sumi concluded – among other
conclusions – that Wis. Stat. section 19.97(3) explicitly
authorizes a circuit court to “nullify action taken in violation
of the Open Meetings Law.”
Section 19.97(3) states, in part, that “[a]ny action taken at a
meeting of a governmental body held in violation of this subchapter
[Open Meetings of Governmental Bodies] is voidable, upon action brought
by the attorney general or the district attorney of the county wherein
the violation occurred.”
Now the Wisconsin Supreme Court will hear oral argument on various
issues, including whether it can exercise appellate power to review
Sumi’s final order absent the filing of an appeal, and the impact
of Sumi’s final order on the pending appeal challenging the
temporary restraining order (TRO).
The District IV Wisconsin Court of Appeals in March certified an appeal
of the TRO (a non-final order) to the supreme court. But certification
is still pending, meaning the supreme court has not yet made a
decision on whether to hear the merits of the case.
The court will also hear oral argument on a petition
for supervisory writ, which was filed by Michael Huebsch, secretary
of the Wisconsin Department of Administration. Under Wis. Stat. section
809.71, a person may request the supreme court to exercise its
supervisory jurisdiction.
The petition, which presents many of the issues presented in State
v. Fitzgerald, seeks to expedite a supreme court decision on those
issues by invoking the court’s supervisory jurisdiction. Granting
the petition would allow the petitioners to bypass lower courts.
Huebsch argues that the Dane County Circuit Court did not have
authority to invalidate an act of the Legislature “on the basis of
an alleged failure to follow a rule of legislative procedure” and
may not “enjoin the legislative process to prevent a legislative
act from becoming law.”
“When a court takes such actions it violates fundamental
principles of separation of powers and does serious and irreparable harm
to our constitutional system of government,” Huebsch’s
attorney’s argued in the petition. “Such actions by the
Circuit Court … must be squarely rejected.”
Huebsch said a swift decision is important to allow state and local
branches of government to “conduct their business without improper
interference from the judicial branch.” The petition drew response
briefs from six parties, including Sen. Mark Miller (D), Rep. Peter
Barca (D), and Judge Sumi, who reiterates some of the arguments set
forth in her final order in State v. Fitzgerald and argues the
petition should be dismissed because Huebsch is not a party to the
underlying action.
Related articles
Secretary
asks supreme court to withdraw or dismiss petition relating to budget
repair bill – WisBar, April 7
Appeals
court asks Wisconsin Supreme Court to decide budget repair bill
issues – WisBar, March 24
Wisconsin
Department of Justice files petition in case halting publication of
budget repair bill – WisBar, March
21
