Judge Sumi Does Her Job

Judge Maryann Sumi issued the long anticipated opinion in Ozanne v. Fitzgerald yesterday, holding: 1) that the circuit courts have jurisdiction to hear cases alleging that a particular piece of legislation was not constitutionally enacted; 2) that the court’s jurisdiction includes challenges alleging noncompliance with Wisconsin’s Open Meetings Law; and that 3) the failure of the March 9, 2011 Joint Committee of Conference Meeting to comply with the Open Meetings Law rendered the legislative action taken at that meeting — 2011 Wisconsin Act 10 — void.

Judge Sumi’s opinion is straight forward.  The logic of her reasoning is spelled out in the topic headings contained in the opinion’s table of contents.  I paraphrase:

It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements.  The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements.  Legislative proceedings are not exempted from the requirements of the Open Meetings Law.  Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities.  The evidence at trial demonstrated that the March 9, 2011 meeting did not comply with the Open Meetings Law.  The Open Meetings Law authorizes the court to void actions undertaken in violation of the law’s terms, where the court finds that the public interest does not counsel in favor of sustaining the action.  There is no public interest in favor of sustaining the act taken here, especially since the provisions of 2011 Wisconsin Act 10 can easily be re-enacted by the legislature if it so wishes (provided that any legislative re-enactment complies with the requirements of the Open Meetings Law).

Reading through this summary, one might wonder what all the fuss is about.  Each step in Judge Sumi’s reasoning is supported by citations to statutory language, precedent, and/or evidence adduced at trial. None of the legal principles underlying Judge Sumi’s opinion are novel or controversial.  In fact, for evidence that her opinion is nothing more than mainstream legal analysis, one need look no further than to the multiple citations to Marbury v. Madison, that most “bedrock” of all bedrock cases. 

A great deal of sloppy lawyering has been put forth over the past several weeks in an attempt to create the impression that Judge Sumi is an out of control jurist.  Some of the bill’s advocates are guilty of cherry picking statutory provisions that they deem helpful, while conveniently ignoring contrary provisions.  Others have purported to rely upon sixty year old Wisconsin Supreme Court precedent, without first considering whether later statutory changes and constitutional amendments have rendered that precedent obsolete.  Dicta from the more recent Milwaukee Journal-Sentinel case was relied upon by others in order to support the idea that the Legislative Reference Bureau had the authority to “publish” laws, however these same partisans ignored the holding of that same case when it proved inconvenient on the question of the jurisdiction of the court.  Some advocates appeared willing to sacrifice basic principles of Administrative Law, if so doing would advance their argument that the law had been “published.”

In today’s newspaper we read that the State Attorney General’s Office has even gone so far as to allege that Judge Sumi has exhibited a “bias” in this matter on the grounds that she submitted a brief to the Wisconsin Supreme Court in defense of her exercise of jurisdiction in this case.  It is exceedingly odd to argue that a judge’s defense of her decision to excercise jurisdiction is somehow a reflection of bias towards the merits of a case.  I was a corporate litigator in a previous life, and I certainly understand the hard-nosed litigator’s attitude of “Just Win, Baby.”  However, the Attorney General’s Office is not a private litigator who is entitled to employ whatever aggressive tactics might advance the interests of his client.  To the contrary, the duty of the Attorney General’s Office is to “do justice,” not to do whatever it takes.

For doing her job, Judge Maryann Sumi has been subjected to specious attacks on her character and competence.  Every sitting judge in Wisconsin must be watching this case with great interest.  Every judge in the state has to be wondering, “Will I be subjected to the same attacks, simply if I get assigned a case that requires the two political branches to comply with the rule of law ?”

As a member of the State Bar of Wisconsin, I am an officer of the court.  I commend Judge Sumi for doing her job, for staying focused on the issues before her, and for ignoring the personal attacks and distractions that have been directed her way.  She has done her job, and done it well.  Now the focus turns to the Wisconsin Supreme Court.  I hope that they stay focused on their job as well.

This Post Has 4 Comments

  1. Martha Baker

    I would love to hear opinion from Marquette Law regarding the next phase of this case. Will this go to the State Supreme Court?

    I would also like to hear opinion on Fitzgerald’s claim that a court has no jurisdiction to enjion a legislative act from becoming law.

  2. Bruce Thompson

    I appreciate this analysis, particularly because it concentrates on the legal basis of Judge Sumi’s decision, rather than its political implications. As a non-lawyer, I too found the decision unusually clear and well-written.

    There is a somewhat disturbing policy issue to the argument made in defense of the legislature’s process in this case — the implication that the rules the legislature makes for everyone else should not apply to the legislature itself. If, in this case, the open meeting law is too burdensome for the legislature to follow, it is unclear why other units of government should be expected to follow them. I recall some years ago the outrage that followed when it was discovered that the US Congress had exempted itself from many of the laws it passed governing employment.

  3. Tom Kamenick

    I find it ironic that you criticize the bill’s supporters for relying on “sixty year old Wisconsin Supreme Court precedent” after having just praised Sumi’s opinion for its “multiple citations” to two-hundred year old precedent.

  4. Edward A. Fallone

    I thought it “sloppy” to place so much emphasis on a 1943 precedent as a guide to interpreting the justiciability of a 1991 statute. It was a simple matter for the Madison DA to point to the actual language of the statute as evidence of the legislature’s intent that a different rule apply.

    I am not aware of a similar argument that so easily evades the precedent of Marbury v. Madison.

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