On June 23, I participated in a discussion concerning the Wisconsin Supreme Court’s decision in Ozanne v. Fitzgerald, 2011 WI 43, on the Wisconsin Eye public affairs show “Legally Speaking.” Rick Esenberg and I continued our ongoing difference of opinion regarding this litigation, which seems to generate an endless supply of novel and contentious legal questions. You can view the program at this link.
My criticisms of the unusual procedural posture of the case, and of the lack of wisdom exhibited by the four member majority’s rush to resolution, are fully stated in the video.
For the remainder of this post, I would like to expand on my criticism of the majority’s legal conclusion that the legislature lacks the power under the State Constitution to submit itself to the jurisdiction of the courts under the Open Meetings Law.
A basic premise of constitutional interpretation is that constitutions are not statutes. Instead, a constitution should espouse general principles and guidelines. This foundational interpretive approach applies to the procedural rules that the legislature is expected to follow when passing a law or when otherwise fulfilling its constitutional duties as the lawmaking branch of the state government. The text of a constitution is not the place to locate detailed procedural requirements, especially if the particular procedures might be subject to later change or revision which would necessitate the burdensome process of a constitutional amendment.
The delegates at Wisconsin’s state constitutional convention understood this principle. Consider this explanation by Jack Stark, in his 1997 book THE WISCONSIN STATE CONSTITUTION: A REFERENCE GUIDE (pp. 7-8):
The other salient quality of the ratified constitution is its generality. On this point, the delegates did speak fairly often, stating that constitutions should enunciate general principles and leave details to legislation. . . . This generality has reduced the need to undergo the cumbersome process of amending the constitution when one of its provisions becomes dated or obviously bad public policy. . . . This generality also makes the legislature accountable to the electorate; whereas a very specific constitution would have allowed legislators to argue credibly that the constitution had tied their hands. In short, on this matter the delegates chose wisely.
Accordingly, while the Wisconsin Constitution has a specific command that the doors of the legislature are to remain open while it is in session, it follows that the precise policy decisions of exactly how that command should be accomplished have been left to the legislature to decide through legislation. This is exactly what the legislature did when it enacted the Open Meetings Law. The legislature also made the choice to include in that statute an express grant of jurisdiction to the circuit courts to hear cases seeking to enforce the procedures of the Open Meetings Law and the express grant of enforcement powers to the courts (including the power to enjoin legislative acts that failed to comply with the law). It also retained the flexibility to amend or repeal these procedures in the future.
Note that by following the exact provisions of the Open Meetings Law, Judge Sumi was faithful to the policy choices of the legislature, while the decision of the majority in Ozanne replaces the legislative choices reflected in the Open Meetings Law with the majority’s own conception of how best to comply with the State Constitution’s command of “open doors.”
The majority argues that the legislature cannot choose to give jurisdiction and enforcement powers to the circuit courts because of precedent holding that the legislature has the sole power under the Constitution to determine its own procedures, relying principally upon the case of Goodland v. Zimmerman, 243 Wis. 459 (1943). However, the Goodland case did not deal with the situation where the court was acting under a statutory grant of power to enforce particular procedural rules. In addition, the Goodland case, which was decided decades before the passage of the Open Meetings Law, never considered the situation where the statute granting enforcement power to the courts was the particular subset of statute that reflects the legislature’s choice of how best to implement a specific constitutional requirement.
In other words, the Goodland case may have decided that the courts lack the power to interfere with the legislative process in the absence of a statute granting the courts such authority, but it never considered or discussed how that analysis might change in the presence of a statute. To be clear, I am not arguing that it is settled law to disregard the Goodland rule in such circumstances. However, I do contend that this was clearly an open question under the precedent, and that there are in fact strong arguments that counsel in favor of a different result from Goodland under such circumstances.
The New Hampshire Supreme Court recognized that the separation of powers argument reflected in the Goodland decision and in other cases might not be applicable where the statute in question is tied to the implementation of a constitutional command. In the case of Hughes v. Speaker, New Hampshire House of Representatives, 152 NH 276 (2005), the New Hampshire Supreme Court distinguished such a situation from the case before it, noting that the text of the New Hampshire “Right to Know” law does not express any intention to tie the statute to a provision of the New Hampshire Constitution and also that the language of the New Hampshire Constitution relating to open government was more aspirational than specific, in contrast to those state constitutions that specifically command public access to legislative sessions. It takes but a moment’s reflection to realize that the Wisconsin Open Meetings Law and the Wisconsin Constitution present the exact situation that the New Hampshire Supreme Court recognized as presenting an open legal question.
In its unseemly rush to decide the case, the majority in Ozanne considers none of this. Instead, the most notable and (at the same time) pernicious aspect of the legal holding of the majority is the manner in which it applies a strict conception of the separation of powers doctrine in order to hamstring the exercise of judicial review. The separation of powers doctrine is not an absolute command, and, indeed, any doctrine that can countenance both the Independent Counsel Law and the qui tam provisions of the False Claim Act can only be described as a flexible doctrine. After all, an absolutist view of separation of powers would never have allowed the United States Supreme Court to decide whether an executive branch official was properly appointed by the President (Marbury v. Madison) or whether the President’s claim of Executive Privilege was correct (United States v. Nixon).
If the majority were concerned about the risks of excessive judicial encroachment into the legislative process, it might have considered whether those risks could be obviated by limiting the exercise of circuit court jurisdiction over legislative procedures to those few instances where a statute declares itself to be implementing a constitutional command. After all, the one point of unanimity among all seven members of the Court in the Ozanne decision was that a bill could not become a law unless the statutory provisions requiring the Secretary of State to designate a date of publication have been met. This is exactly the legal argument that I have made all along, and I fail to see how holding the Legislative Reference Bureau and the Senate Majority Leader to the terms of the statutes concerning publication is less of an encroachment upon the legislative branch than holding legislative officials to the terms of the Open Meetings Law.
In addition, as I have suggested previously, there are additional ways that the Court could have limited the risk of an undue encroachment on the legislative branch while still providing for judicial enforcement of the Open Meetings Law. Merely by adopting an evidentiary rule that the official journal of legislative proceedings will provide the conclusive evidence as to what procedures were or were not followed, the majority could have avoided any risk that future courts would engage in contentious fact-finding efforts when questions of compliance with the statute arose.
What are the implications of the majority’s holding in Ozanne for future cases? For one thing, we have seen that litigants in other states have raised the same absolutist separation of powers arguments adopted by the majority to challenge the power of the judiciary to enforce public records laws against the legislature. It is likely that these same arguments also would support a challenge to the judicial enforcement of state ethics laws. I can find no limiting principles in the majority decision that would prevent its use as precedent in these circumstances.