It should come as no surprise that Professor Fallone and I disagree on Judge Sumi’s decision in Ozanne v. Fitzgerald. I particularly take issue with his suggestion that criticism of the decision is the product of “sloppy lawyering.” In my view, that characterization is unfair and inaccurate. Nor is the legal – as opposed to political – criticism of Judge Sumi based on something other than the merits of this particular case. I have commented extensively on this case in the national and local media and have refused to question Judge Sumi’s character or competence. Of course she did her job. But there are multiple reasons for “fuss” about the merits of the decision. Let’s try one.
Criticism of the notion that a court may invalidate an act of the legislature (as opposed to acts of local units of government subordinate to the legislature) is not based on “sixty year old” precedents. The Zimmerman and Goodland cases go to whether a court can enjoin publication of an enacted bill. That’s a different issue.
The idea that a court may not invalidate an act of the legislature for failure to comply with a statutory (as opposed to constitutional) restriction on legislative procedure is based on a long and unbroken string of cases beginning with McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891) and most recently restated in the very case that Judge Sumi now relies on, Milwaukee Journal Sentinel v. Department of Administration, 2009 WI 79. The rationale for the rule was stated in State ex rel. La Follette v. Stitt, 114 Wis.2d 358, 338 N.W.2d 684 (1983):
Courts are reluctant to inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute. This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute, Baker v. Carr, 369 U.S. 186, 215, 82 S.Ct. 691, 709, 7 L.Ed.2d 663 (1962). Although since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) courts have had the authority to review acts of the legislature for any conflict with the constitution, courts generally consider that the legislature’s adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution. 73 Am.Jur.2d Statutes, sec. 49, p. 296. If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid. The rationale is that the failure to follow such procedural rules amounts to an implied ad hoc repeal of such rules.
Id. at 364-365.
Thus, even if – as everyone agrees – the Open Meetings law applies to the legislature – failure to comply with it may not result in invalidation of a legislative action (as opposed to, say, sanctions against individual legislatures). Indeed, the very case relied on by Judge Sumi for the proposition that the Open Meetings Law applies to the legislature –State ex rel. Lynch v. Conta, 71 Wis.2d 662, 239 N.W.2d 313 (1976) – recognizes that very distinction. It could issue declaratory relief as to the actions of individual legislatures and impose forfeitures upon them because it was not interfering with “the functions or separate power of the legislative branch,” id. at 698, and expressly stated that “[t]he case is accepted, as not contrary to separation of powers, in that it concerns application of the forfeiture penalty to members of a body, not to the branch of government.” Id. at 700.
Ed – and Judge Sumi – want to suggest that this line of cases was somehow broken by Milwaukee Journal Sentinel. As I explained on my personal blog, Judge Sumi flatly misstates what happened in Milwaukee Journal Sentinel. Ed agrees, but argues that what he calls a “regrettable error” has no impact on the validity of the analysis. I respectfully disagree. Here’s why.
Judge Sumi wants to use Milwaukee Journal Sentinel for the proposition that a court can invalidate a law for violation of what she calls a “constitutionally-based procedural statute.” That is, she says, precisely what happened in Milwaukee Journal Sentinel.
That is, in fact, precisely what did not happen. Nor does the Court suggest that an act of the legislature could be invalidated for failure to comply with a statutory requirement.The Court invalidated nothing.
It rejected an argument that an act adopting a collective bargaining agreement amended – sub silentio – the Public Records Law. The majority (over the dissent of the Chief Justice) held that it did not because, were it construed to have done so, the strictures of the state constitution – in particular, Art. IV, sec. 17 – would be violated. It went on to discuss sec. 111.92(1)(a) (which required a bill expressly setting forth whatever statutory amendments are required to conform with the provisions of a collective bargaining agreement), but that discussion is given over to noting that the statute is consistent with the constitution and did not – indeed could not – support an enactment that did not follow constitutional requirements. It expressly disavowed any suggestion that it was acting on the basis of an extra-constitutional statutory rule of procedure, noting the very cases that critics of this aspect of Judge Sumi’s decision rely upon.
Milwaukee Journal Sentinel would be on point if we could conclude that the specific requirements of the Open Meetings law alleged to have been violated here were – like those in Milwaukee Journal Sentinel– constitutionally mandated. But Judge Sumi made no such finding nor could she. The complaint filed by District Attorney Ozanne made no constitutional claims. Moreover, it seems unlikely that he (seeJudge Sumi’s own ruling in the Falk case) would have standing to raise constitutional claims.
Even were this not the case, it would take some heavy lifting to find particular notice requirements in Article IV, sec. 10’s requirement that both houses of the legislature be “open.” But most fundamentally, Judge Sumi made no such finding, stating that the legislature has “chosen” to be governed by the open meetings law. (Decision, p. 10) (Indeed, the Open Meetings Law itself says that either house of the legislature can exempt itself from its strictures by the simple expedient of an internal rule.)
Once we acknowledge, that the Open Meeting Law is a rule of process chosen by the legislature, we are in that line of cases represented by Stitt. A legislative action in violation of a self imposed procedural rule cannot result in invalidation of an otherwise legislative enactment because the legislature is free to abandon that self imposed limitation anytime it wants. To hold otherwise would violate the principle of separation of powers and the particular command of Art. IV, sec. 8 of the state constitution. One does have to look “further” than Marbury v. Madison to address this issue.
I get the argument that is being feinted at but never fully developed. It’s that a statute can have some sort of quasi-constitutional status such that the normal rules don’t apply. For those “super statutes,” I guess, the argument would be that only express repeal can relieve the legislature of their binding nature. Milwaukee Journal Sentinelmight have stood for that if the Court hadn’t made clear that it thought the requirement of a separate or a companion bill was constitutionally required. Writing separately in Milwaukee Journal Sentinel, Justice Ann Walsh Bradley suggests that a statute can be something more than a rule of procedure but less than codification of a constitutional command and that this might matter, but that she was the only justice who advanced the idea weakens rather than strengthens its currency here
Perhaps Judge Sumi is making new law – creating a new kind of statutory animal. I don’t thing that works. All sorts of legislative rules of procedure can be said to have a constitutional “connection.” But once we agree that a particular statutory requirement is a matter of choice, two overriding principles end the conversation. One is that a legislature cannot bind future legislatures. The other is that courts cannot interfere with the legislature’s determinations as to how it will proceed other than to enforce a constitutional requirement.
There are other problems with the decision. The court (based on that “old” precedent – one that was cited with approval in 1977 and never called into question) lacked the authority to enjoin publication. That question (and the matter of whether the bill was published) is not moot given the adoption of collective bargaining agreements subsequent to the date that the law was ostensibly published. The court has yet to explain why a violation that affected only the actions of the Joint Committee on Conference justifies invalidation of the acts of the Assembly and the Senate which no one claims tp have been taken in violation of the Open Meetings law. The court has yet to expressly address the state’s claims that there were legislative rules that, by the statute’s own terms, supercede the notice provisions of the Open Meetings law – merely asserting that there are “no such rules.” The justification for invalidating the rule is also extraordinarily weak, failing to address why the principles of the Open Meetings Law are served by invalidating a law that was perhaps the most publicly debated piece of legislation in state history and that was passed before thousands of screaming people.
One final word is in order –one that allows us to end in at least partial agreement. Ed castigates the Department of Justice for suggesting that it may seek Judge Sumi’s recusal. DOJ’s point was that, in filing a brief in the Supreme Court defending her actions below, Judge Sumi took a position on a matter that was still at issue in the matter before her and with respect to which (at the time) further proceedings were contemplated. (Indeed, Judge Sumi’s issuance of a final order was rather unusual in that no dispositive motion was before her.)
I would not have written the letter. I can’t see what purpose it served and it is not clear to me that any “bias” exhibited by Judge Sumi stemmed from extrajudicial sources. I have had the pleasure – and discomfort – of being before judges who either loved or hated my case from the get go. But as long as such views are based on the law and the record, they do not reflect impermissible bias. But just as I will not question Judge Sumi’s competence or character behind a decision that I think is quite clearly wrong, I will not join Ed in suggesting that the letter constituted overly aggressive litigation tactics that are somehow at odds with the constitutional responsibility of the Attorney General.