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.

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Whose Right Is It, Anyway?

Although the Supreme Court has yet to release an opinion in American Electric Power v. Connecticut (previously discussed here), many commentators approaching the case from divergent points of view believe that the Court will likely reject the common law public nuisance cause of action, which is based on the power companies’ creation and release of substantial amounts of greenhouse gases that have contributed to global warming.  Aside from the jurisdictional and substantive issues that the AEP case raises directly, the issue lurking under the surface in that case, and made explicit in at least two other international cases, is the extent to which claims alleging environmental damage should be adjudicated on the basis of rights entirely separate from those which humans may assert for the benefit of individual human interests.  Stated differently, the problem of redressing harms caused by our overconsumption of fossil fuels and various other environmental harms raises what I believe to be two extremely provocative questions, neither of which will be answered here, but which provide a starting point for more effectively and honestly addressing issues of environmental harms.  First, how does a society decide to whom/what rights will be granted, and second, can a system of human laws accurately and effectively provide rights to nonhuman natural systems?

As an initial matter, perhaps notions of “granting” or “providing” rights already obfuscate a fundamental question; that is, is it honest to say that any human can actually grant rights, or are humans solely in a position to deny fulfillment of rights that exist inherently for the benefit of all beings? 

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Tony Evers: Trying to Throw High Heat at Voucher Schools

Tony Evers, the state superintendent of public instruction, has been making waves by going on the offensive against proposals to expand the use of private school vouchers in Wisconsin. In addition to what has been said in news stories such as this one in the Milwaukee Journal Sentinel, I’d offer three thoughts that struck me as I read the lengthy memo Evers offered to members of the legislature’s Joint Committee on Finance this week.

One: Legally and politically, this is almost surely idle thinking, but what if the private schools that are in Milwaukee’s voucher program had to face the same kind of consequences for getting weak results that charter schools and, of late, conventional public schools face?

Charter schools, which are independently operated, publicly funded schools, are generally given five-year contracts by a government body. (In Milwaukee, charter contracts are granted by the School Board, city government, or the University of Wisconsin-Milwaukee.) It is not unusual for a charter school to be closed if it is not getting good results at the end of five years, or sometimes sooner.

In the conventional Milwaukee Public Schools system, school closings are becoming common. Tightening finances and declining enrollments are key reasons, but getting bad results is also a factor. And a list of schools, including several major high schools, are under orders, based on federal policies, to take steps such as overhauling their programs and staffs and getting new principals because of low student success.

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