{"id":13522,"date":"2011-05-27T15:19:06","date_gmt":"2011-05-27T20:19:06","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13522"},"modified":"2011-05-27T15:27:09","modified_gmt":"2011-05-27T20:27:09","slug":"judge-sumi-does-her-job","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/05\/judge-sumi-does-her-job\/","title":{"rendered":"Judge Sumi Does Her Job"},"content":{"rendered":"

\"\"<\/a>Judge Maryann Sumi issued the long anticipated opinion in Ozanne v. Fitzgerald <\/a><\/em>yesterday, holding:\u00a01) 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\u00a0jurisdiction includes challenges alleging noncompliance with\u00a0Wisconsin’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\u00a0rendered the legislative action taken at\u00a0that meeting — 2011 Wisconsin Act 10 —\u00a0void.<\/p>\n

Judge Sumi’s opinion is straight forward.\u00a0 The logic of her reasoning is spelled out in the topic headings contained in the opinion’s\u00a0table of contents.\u00a0 I paraphrase:<\/p>\n

It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements.\u00a0 The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements.\u00a0 Legislative proceedings are not exempted from the requirements of the Open Meetings Law.\u00a0 Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities.\u00a0 The evidence at trial demonstrated that the March 9, 2011 meeting did not\u00a0comply with the Open Meetings Law.\u00a0 The Open Meetings Law authorizes the court to void actions undertaken in violation of the law’s terms, where the court finds that\u00a0the public interest does not counsel in favor of sustaining the action.\u00a0 There is\u00a0no\u00a0public 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\u00a0complies with the requirements of the Open Meetings Law).<\/p><\/blockquote>\n

Reading through this summary, one might wonder what all the fuss is about.\u00a0 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\u00a0opinion are novel or controversial.\u00a0 In fact, for\u00a0evidence that her opinion is nothing more than mainstream legal analysis, one need look no further than to the multiple citations to Marbury v. Madison<\/em>, that most “bedrock” of all bedrock cases.\u00a0<\/p>\n

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\u00a0out of control jurist.\u00a0 Some\u00a0of the bill’s advocates are guilty of cherry picking\u00a0statutory provisions that they\u00a0deem helpful, while conveniently ignoring contrary provisions.\u00a0 Others have purported to\u00a0rely upon sixty year old Wisconsin Supreme Court precedent,\u00a0without first considering whether\u00a0later statutory changes and\u00a0constitutional amendments have\u00a0rendered that precedent obsolete.\u00a0 Dicta from the more recent Milwaukee Journal-Sentinel <\/em>case was relied upon\u00a0by others in order to support the idea that the Legislative Reference Bureau had the authority to “publish” laws, however these same partisans ignored the\u00a0holding of that same case\u00a0when it proved inconvenient on the question of the jurisdiction of the court.\u00a0 Some advocates appeared willing to sacrifice basic\u00a0principles of Administrative Law, if so doing would advance their\u00a0argument that the law had\u00a0been “published.”<\/p>\n

In today’s newspaper we read that the State Attorney General’s Office has even gone so far <\/a>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.\u00a0 It is exceedingly odd to argue that a judge’s defense of her\u00a0decision to excercise\u00a0jurisdiction is somehow a reflection of bias towards the merits of a case.\u00a0 I was a corporate litigator in a previous life, and I certainly understand the hard-nosed litigator’s attitude of “Just Win, Baby.”\u00a0 However, the Attorney General’s Office is not a private litigator who is entitled to employ whatever aggressive tactics\u00a0might advance the interests of his client.\u00a0 To the contrary, the duty of the Attorney General’s Office is to “do justice,” not to do whatever it takes.<\/p>\n

For doing her job, Judge Maryann Sumi has been subjected to specious attacks on her character and competence.\u00a0 Every sitting judge in Wisconsin must be watching this case with great interest.\u00a0 Every judge in the state has to be wondering,\u00a0“Will I be subjected\u00a0to the same attacks, simply if I\u00a0get assigned a case that requires the two\u00a0political branches to comply with the rule of law\u00a0?”<\/p>\n

As a member of the State Bar of\u00a0Wisconsin, I am\u00a0an officer of the court.\u00a0 I\u00a0commend 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.\u00a0 She has done her job, and done it well.\u00a0 Now the focus turns to the Wisconsin Supreme Court.\u00a0\u00a0I hope\u00a0that they stay focused on their job as well.<\/p>\n","protected":false},"excerpt":{"rendered":"

Judge Maryann Sumi issued the long anticipated opinion in Ozanne v. Fitzgerald yesterday, holding:\u00a01) 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\u00a0jurisdiction includes challenges alleging noncompliance with\u00a0Wisconsin’s Open Meetings Law; and that 3) the failure of the March 9, 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