Court of Appeals Declines to Rule on Union Law
The Wisconsin Court of Appeals, District 4, has declined to rule on the lawsuit brought against the state regarding the violation of open meetings law. They have decided the State Supreme Court should rule. Read their ruling below.
| Appeal No. | 2011AP613-LV | Cir. Ct. No. 2011CV1244 | |
| WISCONSIN COURT OF APPEALS | |||
| DISTRICT IV | |||
| State of Wisconsin ex rel. Ismael R. Ozanne,
Plaintiff-Respondent,
v.
Jeff Fitzgerald, Scott Fitzgerald, Michael Ellis and Scott Suder,
Defendants,
Douglas La Follette,
Defendant-Petitioner-Movant.
|
FILED
MAR 24, 2011
A. John Voelker Acting Clerk of Supreme Court
|
||
| CERTIFICATION BY WISCONSIN COURT OF APPEALS | |||
Before Lundsten, Higginbotham and Blanchard, JJ.
Wisconsin Secretary of State Douglas La Follette petitions for leave to appeal a temporary restraining order (TRO) issued on March 18, 2011, which enjoins La Follette from publishing 2011 Wisconsin Act 10, commonly known as the Budget Repair Bill, until the circuit court can rule on the underlying action. The circuit court issued the TRO after determining it was likely that the Dane County District Attorney would be able to establish that members of the Wisconsin Senate and of a joint legislative committee had violated Wisconsin’s Open Meetings Law during the legislative process. La Follette further requests temporary relief under Wis. Stat. Rule 809.52 (2009-10)[1][1] in the form of an order staying the TRO pending disposition of his petition, so that he may publish the Act on March 25, 2011.[2][2]
This case presents several significant issues involving justiciability and the remedies that are available under Wisconsin’s Open Meetings Law, Wis. Stat. § 19.81 et seq. As we will explain below, we believe that resolution of these questions will require clarification of the interaction between the Open Meetings Law and a line of cases dealing with the separation of powers doctrine. Many more cases bear on the issues, but we will limit our discussion to the four that our review so far suggests are most significant: Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943); State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 293 N.W.2d 313 (1976); State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983); and Milwaukee Journal Sentinel v. Wisconsin Dept. of Admin., 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700. Plainly, this case has broad statewide implications for the general public and those most directly affected by the challenged Act, in addition to those interested in the manner of its passage, as indicated by a non-party brief jointly filed by WEAC, AFSCME District Counsel 40, AFSCME District Counsel 24, ATF-Wisconsin, AFSCME District Counsel 48, SEUI Healthcare Wisconsin, and the Wisconsin State AFL-CIO. Accordingly, pursuant to Wis. Stat. Rule 809.61 and J.R.S. v. Fond du Lac Circuit Court, 111 Wis. 2d 261, 263, 330 N.W.2d 217 (1983), we certify the petition for leave to appeal and accompanying motion for temporary relief to the Wisconsin Supreme Court.
We certify the following questions: (1) whether striking down a legislative act—also known as voiding—is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so, (2) whether a court has the authority to enjoin the secretary of state’s publication of an act before it becomes law.[3][3]
The first case that we have identified as particularly relevant was decided in 1943. In Goodland v. Zimmerman, the court held that a circuit court lacked authority to enjoin the secretary of state from publishing an act on grounds that the act had not been constitutionally enacted and that it provided for an unconstitutional delegation of power. Goodland, 243 Wis. at 477. The court reasoned that the legislative process is not complete until an enactment is published and that the judiciary had “no jurisdiction or right to interfere with the legislative process.” Id. at 466-67. The Goodland court wrote: “If a court can intervene and prohibit the publication of an act … it invades the constitutional power of the legislature to declare what shall become law.” Id. at 468.
Goodland, viewed alone, might be read as precluding the immediate injunctive relief sought in this case. The District Attorney argues, however, that the legislature has since then itself authorized just such relief by enacting revisions to the Open Meetings Law in its 1975-76 legislative session. The Open Meetings Law begins with a declaration of policy that includes the following:
In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with [the open meetings provisions set forth in] this subchapter.
Wis. Stat. § 19.81(3) (emphasis added). The legislature went on to make the Open Meetings Law provisions expressly applicable to itself. The law applies to legislative meetings, except for specific exemptions set forth in the statute. Wis. Stat. § 19.87. The Open Meetings Law also provides that it can be enforced by a broad range of remedies, explicitly including injunctions. Wis. Stat. § 19.97(2).
The District Attorney’s position—that revisions to the Open Meetings Law provide a wider range of available relief to remedy violations of the Open Meetings Law than were available at the time of Goodland—gains some support from the next case we highlight.
In the 1976 case, Lynch v. Conta, a district attorney sought a declaratory judgment regarding what types of meetings were included within the scope of the pre-1975 version of the Open Meetings Law in order to determine whether his office could bring a forfeiture action against legislators upon a verified complaint. Lynch, 71 Wis. 2d 662. In the course of its discussion, the Lynch court again addressed separation of powers concerns. It noted the general rule that “mere violations of parliamentary procedure are no grounds for voiding legislation.” Id. at 695. The court contrasted that rule with the judiciary’s long established power to review the constitutionality of acts of the legislature, and concluded that there was “an area of uncertainty” regarding a court’s ability “to review the activity of a legislature for a violation of a statute duly enacted by it.” Id. (emphasis added). The court then reasoned that the legislature must have intended the Open Meetings Law to apply to legislators and legislative committees, because otherwise the specific statutory exceptions created for them would be superfluous. Id. at 698-99. Therefore, the court concluded, there was no separation of powers problem in actions seeking declaratory judgment and/or forfeitures against legislators for alleged violations of the Open Meetings Law. Id. Following Lynch, it might seem that questions about the enforceability of Open Meetings Law remedies against the legislature had been answered in favor of the District Attorney.
That brings us to State ex rel. La Follette v. Stitt, a case decided in 1983. In Stitt, the court considered its authority to review whether the legislature had failed to refer an act to the proper committee before passage. The Stitt court rejected any prior suggestion that it had the power to invalidate legislation based upon a violation of a “procedural” statutory provision in passing an act, unless the challenged procedure “constitutes a deprivation of constitutionally guaranteed rights.” Stitt, 114 Wis. 2d at 369. As in prior cases, the court cited the concepts of separation of powers and comity and reasoned that the legislature’s failure to follow procedural rules that were not constitutionally mandated amounted to an ad hoc repeal of its own rules. Id. at 365. The court further stated that its holding did not conflict with Lynch because that case did not address the voidability of legislative actions taken in violation of the Open Meetings Law. Id. at 368-69; see also Lynch, 71 Wis. 2d at 671.
The Stitt court’s treatment of Lynch, in the course of broadly asserting the general rule that courts will not invalidate legislation based upon violations of procedural statutes, suggests that voidability is not an available option for a violation of the Open Meetings Law. Thus, Stitt seemingly weighs in favor of the Secretary of State’s position in this case. Nonetheless, Stitt did not involve an alleged violation of the Open Meetings Law and the court did not consider the implications of strong language in that law indicating a legislative intent to subject itself to the law. Perhaps more significantly, the Stitt court did not consider whether the Open Meetings Law implicates a constitutional right of public access to legislative proceedings, something that appears to be key to the next decision we discuss.
In 2009, the court in Milwaukee Journal Sentinel v. Wisconsin Dept. of Admin., considered whether the legislature’s ratification of a collective bargaining agreement containing certain confidentiality provisions could be treated as having created an “as otherwise provided by law” exception to the Public Records Law. Milwaukee Journal Sentinel, 319 Wis. 2d 439, ¶15. Two newspapers sought access to information deemed confidential under a bargaining agreement ratified by the legislature. Pertinent here, a judicial assessment of the merits of the newspapers’ argument required inquiry into the legislature’s compliance with a statutory enactment requirement. Id., ¶16. The Wisconsin State Employees Union participated in the action and argued that the court lacked jurisdiction to determine whether the legislative committee had followed the correct statutory procedure. Significantly, the Milwaukee Journal Sentinel majority rejected the contention that it lacked jurisdiction to review the legislature’s compliance with the statutory provision because that statute, at least to some degree, furthered Wisconsin constitutional directives found in Art. IV, Section 17(2). Milwaukee Journal Sentinel, 319 Wis. 2d 439, ¶¶19-20. A concurrence, supporting the rationale of the majority, observed that the weighty public policies of notice and transparency in government tipped the scale in favor of the conclusion that the statute at issue was not merely procedural. Id., ¶75 (Bradley, J, concurring). Without going into detail, we think there is a rough parallel between the constitutional provision and statute in Milwaukee Journal Sentinel and the constitutional provision and statute at issue here.
The District Attorney in this case argues that courts should have the power to review the legislature’s compliance with the Open Meetings Law in the same manner as the court reviewed the legislature’s compliance with the statutory provision in Milwaukee Journal Sentinel. To support his position, the District Attorney points to Wis. Stat. § 19.81(3), which pronounces the legislature’s intent to comply with the Open Meetings Law to the fullest extent possible “[i]n conformance” with Article IV, section 10 of the Wisconsin Constitution. The constitutional provision to which the statute refers broadly states that the doors of each house shall remain open, except when the public welfare requires secrecy. Wis. Const. art. IV, § 10.
In sum, Goodland and Stitt appear to favor the Secretary of State’s position that courts lack authority to invalidate legislation enacted in violation of the Open Meetings Law or, at the least, to do so before publication. In contrast, Lynch and Milwaukee Journal Sentinel support the District Attorney’s view.
It appears to us that the central question presented by the petition and request for temporary relief is whether the Open Meetings Law’s express reliance on and reference to Wis. Const. Art. IV, § 10 means that the statute should be interpreted as protecting a constitutional interest, thus subjecting alleged violations by the legislature or subunits thereof to judicial review, as in Milwaukee Journal Sentinel. See Wis. Stat. § 19.81(3). If the Open Meetings Law is not viewed as protecting a constitutional right, then it would appear, under Stitt, that a court would have no authority to void an act based upon an alleged violation. If, however, the legislature’s compliance with the Open Meetings Law is subject to judicial review in order to protect the underlying constitutional interests involved, the additional question arises whether such review may occur while the legislative process is still pending (under the Lynch rationale that the legislature consented to being subject to injunction), or must wait until the process has been completed with publication of an act under the Goodland rationale.
It is appropriate to certify to the Supreme Court appeals raising issues which that court might otherwise ultimately consider on a petition for review, in order to reduce the burden and expense of the appellate process on both the parties and the judicial system. See Wisconsin Public Serv. Corp. v. Public Service Comm’n of Wis., 176 Wis. 2d 955, 958 n.1, 501 N.W.2d 36, 37 n.1 (1993) (Abrahamson, J., concurring). Because this appeal presents significant issues, we believe that the Supreme Court is the proper forum for it.
What’s your story?
I’ve been away for a while. Yeah, I’m guilty of that. But I did want to call your attention to the above photo, and if you frequent Starbucks, something I hope you noticed this year during the holiday season. ‘Stories are Gifts to Share’ was one of a couple monikers part of their seasonal campaign. The little cardboard wrap that keeps you from burning your hand bore this phrase. I’ve tacked it up at my desk as a reminder of what my focus should be: Not just facts and information, but stories.
As a journalist, the printed sentiment is something I feel is entirely true. There are so many incredible stories. Some that inspire. Some that teach. Some that help. Some that heal. Some that expose. Some that anger. Some that will truly change anyone who watches them.
I feel it’s especially true about television. And Edward R. Murrow said it best:
“This instrument can teach, it can illuminate; yes, and even it can inspire. But it can do so only to the extent that humans are determined to use it to those ends. Otherwise it’s nothing but wires and lights in a box.”
Impressed.
One of the great privileges of being a reporter is getting to meet so many people. Every one has a unique perspective and story. I meet an average of 10 new people a day. Obviously I can’t remember them all, but the Madison West High School students I met today will have a place in my memory.
They don’t want to see their school restructured under a proposal to create two curriculum tracks at all four of Madison’s high schools. District administrators believe that change is necessary to close the achievement gap, better challenge students in preparing them to compete on a global scale, and to even-out course offerings between the schools. You can read more about it here.
Here’s why I’m impressed: The students we interviewed spoke passionately and intelligently about the desire to have a stake in their own education. They were so mature and polite it was almost unsettling. Then there’s the fact the kids we did interview were all seniors. They could write the possible changes off because they would not impact them, but they didn’t because they believe strongly in what they’ve been given.
Usually when you show up to a high school with a TV camera kids start mugging for it like they’re in a music video. Not at West. Next, as I was going up the front steps a student seated in front of the door got up and said “excuse me” even though I could have just as easily gone around him.
There’s no question our schools need the attention of our leaders. There is no question we need to close the achievement gap. There is no question we must push our young people to challenge themselves. There’s also no question there is something special at Madison West High School.
Learn How to Bucky
I don’t get behind too many causes. That kind of thing can get a reporter in trouble. But here’s a cause I think I can advocate for. Watch this video. We did a story on the guys behind it tonight and had a great time meeting them. Their music video has turned into a smash-hit on campus, not to mention the attention it’s getting around the Big Ten.
Teach Me How to Bucky:
Making a Difference
I recently received an email that I just found in my inbox. In it, the writer said I had made a difference in her life — and had opened quite a few doors for her.
You can’t imagine what that means to someone who does this work. For the number of days it could drive you crazy there are those days you do make a difference. The reward is more amazing than anything you can imagine.
Yet in my reply to this young woman, I told her truly that it was more her than me who had opened such doors. While we may have been able to raise her voice so she could be heard by more people, it was she who first held the courage and strength to speak in the first place. She made the difference in her life mostly on her own, with a little help on the side from us.
I’ve never forgotten her story. And I’ll never forget her. Thank you to this young lady and all the others who speak up at times it may not be the easiest or most popular thing to do. You make the world a better place.
Tiger Woods, Mistress Meet in Wisconsin?
They say tigers don’t change their stripes, and though Tiger Woods has vowed to change his it can be tough to move on from the past. Especially when one of the many mistresses the golf star is alleged to have had intimate relationships with shows up in the same state as Woods, here to play the PGA Championship at Whistling Straits.
According to the club’s website, it looks like Joslyn James who slammed the golfer for not apologizing to his mistresses, will appear at Silk Exotic in Milwaukee from August 11-14th. The website even promotes the event by saying James was one of the many mistresses that led Woods to say he was taking a break from professional golf play. A fast-talking phone recording at Silk also touts her as a major adult film star.
Tonight after learning of James’s booking, I left a message for the General Manager at Silk Exotic to ask if the timing of the booking was coincidental or timed specifically because Tiger is in the Badger State. Hopefully he’ll call back. I’ll tell you what he says.
A Bird in the Hand
Today started with a little newsroom drama. I came into work only to hear a loud shriek coming from Maria Guerrero as she left the audio booth after voicing a story. Turns out a bird was loose in the newsroom and had just narrowly passed her head. Not sure when, how, or most especially why the bird found its way inside, but now there was the challenge of getting it out. Unfortunately, the little guy or gal was probably scared out of its mind and had been flying around inside since mid-morning.
The suggestion was made to turn off the lights and open the door, letting it fly towards the light. Worked before apparently, but not today. The bird ends up cornered in the conference room shortly after the start of the video below and plenty of hilarity ensues. Sure, there are some boring parts and the video is 11 minutes long, but there are several key moments that will likely make you laugh. Maybe it’s just funny if you know the people involved. The end though — where the bird is caught and then released — is the best. Make sure to catch that part.
Here Comes the Sun: A little fun
We’ve had a lot of serious, tough news lately. I don’t have to list headlines — you know. Contrary to what people think most journalists don’t like tragedy. So today, we got to have some fun with a serious story that fortunately at the moment doesn’t pose a super-serious threat. My favorite part comes towards the end.
And here’s a little more serious background from CBS News and The Early Show.
Rain, Rain, Go Away!
Getting soaked shooting a standup for the 9 & 10 p.m. news.
For me, there’s another reason: I actually like covering weather. Makes me feel a bit like The Weather Channel’s Jim Cantore, minus the meteorological chops. There’s another obvious bonus for television. It’s hard to get much more visual than weather and anyone you ask about it is sure to have an opinion.
It’s hard to tell exactly how hard it’s raining in the screen capture of a standup photographer Brian M. and I shot for the 9 and 10 p.m. news, but rest assured we were getting pounded. In the two minutes it took us to step out of the truck we got soaked completely to the bone. I won’t speak for Brian, but my underwear even got soaked. I’ve never covered a full-blown hurricane, but have covered the remnants of several tropical storms. For those I wore a full rain suit. Yesterday I wasn’t. Consequently, I was drenched.
We never saw the funnel clouds many people told us they did, and we’ve yet to see a photo of one either. Odd ’cause we usually get many. But here are some photos of clouds I photographed with my phone throughout the day.
Storm clouds over a farm outside of Waunakee.
Clouds begin to descend over DeForest.
Looking south of Stoughton.
Just east of Stoughton. That's our live truck on the left. Yes, it was that dark.
