During oral argument this past Monday in Ozanne v. Fitzgerald, the Wisconsin Supreme Court was asked to rule that the Open Meetings Law violates the Wisconsin Constitution to the extent that the law grants authority to the Wisconsin circuit courts to void legislative enactments passed in violation of its provisions.
This is not a novel argument. Over the years, opponents of state “sunshine laws” have filed legal challenges to public records and open meetings laws around the country. Sometimes, these challenges have been based on First Amendment claims. At other times, they have attempted to argue that the judicial enforcement of sunshine laws violates the doctrine of separation of powers.
In 1992, the Supreme Court of Florida considered and rejected this exact argument. In the case of Locke v. Hawkes, 595 So. 2d 32 (1992), the Florida Supreme Court considered whether the Florida Public Records Law could be applied to the state legislature. The Court summarized the argument before it, which was that the Court lacked the authority to apply the terms of the law to the legislature:
The House of Representatives, representing the legislators involved, asserts that: (1) the judiciary is without jurisdiction over legislative internal operating procedures under the separation of powers doctrine and (2) [the Public Records Law], by its terms, does not apply to the Florida Legislature. In its separation of powers argument, the House notes that article III, section 4(a), of the Florida Constitution, provides that “each house shall determine its rules of procedure,” and that we, in this instance, must apply article II, section 3, of The Florida Constitution which directs that “no person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” It notes that we stated in McPherson v. Flynn, 397 So. 2d 665, 667 (Fla. 1981), that “the doctrine of separation of powers requires that the judiciary refrain from deciding a matter that is committed to a coordinate branch of government by the demonstrable text of the constitution.” The House argues that our decision in Moffitt v. Willis, 459 So. 2d 1018 (Fla. 1984), controls because in that decision we expressly recognized that legislative meetings and records are subject to the exclusive control and direction of the legislature and not to the interpretative or coercive power of the judicial branch. The House further contends that under this decision we are without jurisdiction to invade the legislature’s internal procedures with respect to open meetings.
After summarizing the objection to its power of judicial review, the Florida Supreme Court rejected the separation of powers argument and affirmed its power of judicial review:
The application of [the Public Records Law] and its possible interference with the separation of powers provision is not a new issue. In The Florida Bar, 398 So. 2d 446 (Fla. 1981), we were asked to determine whether the unauthorized practice of law investigative files maintained by the Bar were public records subject to inspection by members of the press under the authority of chapter 119, Florida Statutes (1979). We held that neither the legislature nor the governor could control what is purely a judicial function. In Moffitt, this Court found that the judicial branch could not constitutionally interfere with the internal activities of the legislature with regard to public meetings. We stated: “It is a legislative. prerogative to make, interpret and enforce its own procedural rules and the judiciary cannot compel the legislature to exercise a purely legislative prerogative.” 459 So. 2d at 1022.
The drafters of our constitution emphasized the importance of the separation of powers doctrine by expressly stating that principle in our constitution. Article II, section 3, of the Florida Constitution provides: “The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” This separation of powers provision was placed in our constitution to emphasize the balance of power between the three branches of state government. We have been very sensitive to separation of powers principles, as illustrated by our decisions in McPherson and Moffitt. Those cases expressed the philosophy that the control or influence by one branch of another branch’s internal operating procedures could interfere with the independence of the second branch and possibly place the enforcing branch in a superior position. Article II, section 3, identifies the branches of our state government, and we hold that this provision was intended to apply to each branch’s constitutional powers as enumerated in article III, the legislature, article IV, the executive, and article V, the judiciary. We hold that our separation of powers provision was not intended to apply to local governmental entities and officials, such as those identified in articles VIII and IX and controlled in part by legislative acts. As the supreme court of the judicial branch, one of our primary judicial functions is to interpret statutes and constitutional provisions. In carrying out this function, we find that we do not violate the separation of powers doctrine when we construe a statute in a manner that adversely affects either the executive or the legislative branch. Clearly, we have the power to determine whether chapter 119 is applicable to the legislature.” (emphasis added)
The Florida Supreme Court recognized the interplay between the legislative and the judicial power. The power of judicial review falls within the core powers of the judicial branch. However, there is a danger that while exercising this power the judiciary may go too far and thus invade the core powers of the legislature. How can the two fundamental principles of judicial review and separation of powers be reconciled? The approach taken by the Florida courts has been summarized as follows:
It is the duty of the courts to enforce the legislature’s policy choice when it is properly before them in a judicial proceeding. The role of ultimate interpreter of the law may not be used by the courts to interfere with the legitimate exercise of power reserved by the Florida Constitution for other branches of the government. The most thoughtful comment on this problem was offered by Justice Kogan in his concurring opinion in Garden v. Frier, 602 So. 2d 1273 (Fla. 1992). He noted that when a statute is so ambiguous and vague that the courts have no clear guidance to its meaning, the courts violate the doctrine of separation of powers if they use the interpretative process to provide the necessary specificity to save the statute from being held unconstitutional. If the courts do so, they usurp the legislature’s power and obligation to declare clearly what the public policies are in the statutes. With very few exceptions, the task of developing public policy is reserved to the legislature. The courts are ill-equipped to assume it and should avoid using the interpretative process to accomplish such results.
Some executive and legislative decisions are beyond the powers of the courts to review because they concern the core functions of those branches. In McPherson v. Flynn, 397 So. 2d 665,667 (Fla. 1981), the court noted that it would refrain from deciding any matter in a judicial forum that was “committed to a coordinate branch of government by the demonstrable text of the constitution.” Such decisions become subject to judicial review only when the legislature specifically has authorized it by statute.
Johnny C. Burris, The Administrative Process and Constitutional Principles: Separation of Powers, 75 FLORIDA BAR J. 28 (2001) (emphasis added).
The precise line at which the exercise of judicial review of legislative acts implicates the separation of powers presents a delicate legal question. Precedent in Florida clearly holds that the courts may exercise judicial review over the actions of the legislature when that power is granted to them by statute. Should the Wisconsin Supreme Court adopt a similar rule?
In many respects, the arguments in favor of the judicial power to hold the Wisconsin legislature to the terms of its own Open Meetings Law are even stronger than the situation before the Florida Supreme Court in the Locke case. The Wisconsin Open Meetings Law expressly states that its terms apply to the Wisconsin legislature (the Florida law did not contain similar language). The exercise of judicial review to enforce compliance with the Open Meetings Law is expressly granted to the circuit courts by the terms of the Open Meetings Law itself, so it is difficult to argue that by following this legislatively granted jurisdiction the courts are undermining legislative independence. Finally, the text of the Wisconsin Open Meetings Law states that it must be interpreted against the backdrop of the express command in the Wisconsin State Constitution that the public is guaranteed access to the legislature when it is in session.
Nonetheless, in arguments that were not fully briefed by all parties, in the course of abbreviated appellate proceedings, and on the basis of an incomplete and confusing record, the Deputy Attorney General has argued that the Wisconsin Supreme Court should adopt the same separation of powers and “procedural rule” doctrines rejected by the Florida Supreme Court and proceed to rule that the circuit courts lack the constitutional authority to require the legislature to comply with the law.
Interestingly, at least two early cases of the Wisconsin Supreme Court declared legislative acts void for failure to comply with procedural requirements in their passage: State v. Wendler, 94 Wis. 369 (1896) and Meracle v. Down, 64 Wis. 323 (1885). These cases were later criticized by University of Wisconsin law student Charles Luce in a 1941 article in the Wisconsin Law Review entitled “Judicial Regulation of Legislative Procedure in Wisconsin.” However, Luce’s argument against the judicial review of legislative procedure was premised upon evidentiary problems inherent in determining whether the legislature had, in fact, followed the appropriate procedures. Nowhere did Luce argue that the judicial review of legislative procedure raised separation of powers concerns. In addition, he argued that the judicial review of legislative procedure, if the Court continued in this practice, should be limited to instances where the procedural defect was plain from the face of the legislative journal. Significantly, Luce suggested that the legislature might pass a statute that permitted the direct judicial challenge of legislative procedure. This further supports the conclusion that Luce’s critique was based on evidentiary issues and not on constitutional objections to the practice. [Luce went on to have a distinguished legal career, clerking for Justice Hugo Black on the United States Supreme Court, working for the Johnson Administration, and serving as the Chairman of Consolidated Edison.]
In addition, in 1976, Wisconsin Attorney General Bronson La Follette filed an opinion discussing the (then) new Open Meetings Law. In his opinion, he states as follows:
District attorneys and the Attorney General are empowered to exercise reasonable discretion in enforcing the law, including discretion as to the type of legal action to be brought, if any. Court proceedings should not be instituted on mere suspicion of a violation. Appropriate action should be commenced if there is apparent material and wanton violation and if there are credible witnesses and evidence available to prove the necessary elements of the violation.
Op. of Atty Gen. 77-76. Attorney General La Follette expressed no constitutional concerns over the provisions granting the judiciary the power to enforce the law, and focused his concern over the outer limits of judicial review on cases where the evidence of a violation was weak or lacking.
At the end of the day, I come to three conclusions regarding Ozanne v. Fitzgerald. First, the standard for the grant of a supervisory writ has not been met. There is no Wisconsin precedent directly on point on the justiciability of Open Meeting Law violations alleged against the legislature. Moreover, six hours of oral argument before the Wisconsin Supreme Court has failed to identify any factual or legal finding of the circuit court that was plainly wrong. Given the foregoing, it is difficult to conclude that the circuit court ruling plainly violated anyone’s legal rights.
Second, this is not the appropriate procedural posture for the Wisconsin Supreme Court to decide whether or not the legislature exceeded its constitutional authority in enacting the Open Meetings Law. This issue is too important to be decided in the absence of a full record or without a trial court or appellate opinion on this question. While the Court may have the power to exercise original jurisdiction and take up this issue, it would be wise to adhere to the normal appellate process.
Finally, if the Wisconsin Supreme Court does address the issue, the Court must clearly articulate the reasons behind its ruling on the question of justiciability. It is not sufficient to cite to prior precedent and simply declare that precedent dictates the result. This approach is insufficient because the Wisconsin Supreme Court is not bound to follow precedent in any given case. Above all, the doctrine of separation of powers is not an end to be pursued for its own sake. It is a practical doctrine that must be take account of and be adapted to the particular facts before the Court.
Therefore, if the Wisconsin Supreme Court chooses to reach the issue of the constitutionality of the Open Meetings Law, the Court should take the time to explain why the result it arrives at is a sound result in light of the text of the Constitution and of the role of the Court in our tripartite system of state government. After all, given the highly politicized nature of Ozanne v. Fitzgerald, the ultimate decision of the Court will only be recognized as legitimate if it is received by the public as an expression of general principles of law and not as a rationalization intended to support a preordained result.