{"id":13559,"date":"2011-05-31T08:53:59","date_gmt":"2011-05-31T13:53:59","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13559"},"modified":"2011-05-31T08:53:59","modified_gmt":"2011-05-31T13:53:59","slug":"another-view-on-the-merits-of-judge-sumis-decision","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/05\/another-view-on-the-merits-of-judge-sumis-decision\/","title":{"rendered":"Another View on the Merits of Judge Sumi’s Decision"},"content":{"rendered":"

It should come as no surprise that Professor Fallone and I disagree on Judge Sumi\u2019s decision in Ozanne v. Fitzgerald<\/em>. I particularly take issue with his suggestion that criticism of the decision is the product of \u201csloppy lawyering.\u201d In my view, that characterization is unfair and inaccurate. Nor is the legal \u2013 as opposed to political \u2013 criticism of Judge Sumi based on something other than the merits of this particular case. I have commented extensively on this case in the national and local media and have refused \u00a0to question Judge Sumi\u2019s character or competence. Of course she did her job. But there are multiple reasons for \u201cfuss\u201d about the merits of the decision.\u00a0Let\u2019s try one.<\/p>\n

Criticism of the notion that a court may invalidate an act of the legislature (as opposed to acts of local units of government subordinate to the legislature) is not based on \u201csixty year old\u201d precedents. The Zimmerman<\/em> and Goodland<\/em> cases go to whether a court can enjoin publication of an enacted bill. That\u2019s a different issue.<\/p>\n

The idea that a court may not invalidate <\/em>an act of the legislature\u00a0for failure to comply with a statutory (as opposed to constitutional) restriction on legislative procedure is based on a long and unbroken string of cases beginning with McDonald v. State<\/em>, 80 Wis. 407, 411-12, 50 N.W. 185 (1891) and most recently restated in the very case that Judge Sumi now relies on, Milwaukee Journal Sentinel v. Department of Administration,<\/em> 2009 WI 79. The rationale for the rule was stated in State ex rel. La Follette v. Stitt<\/em>, 114 Wis.2d 358, 338 N.W.2d 684 (1983):<\/p>\n

Courts are reluctant to inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute.\u00a0 This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute, Baker v. Carr<\/em>, 369 U.S. 186, 215, 82 S.Ct. 691, 709, 7 L.Ed.2d 663 (1962).\u00a0 Although since Marbury v. Madison<\/em>, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) courts have had the authority to review acts of the legislature for any conflict with the constitution, courts generally consider that the legislature’s adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by\u00a0 the constitution.\u00a0 73 Am.Jur.2d Statutes, sec. 49, p. 296.\u00a0 If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid.\u00a0 The rationale is that the failure to follow such procedural rules amounts to an implied ad hoc<\/em> repeal of such rules.<\/p><\/blockquote>\n

Id<\/em>. at 364-365.<\/p>\n

Thus, even if \u2013 as everyone agrees \u2013 the Open Meetings law applies to the legislature \u2013 failure to comply with it may not result in invalidation of a legislative action (as opposed to, say, sanctions against individual legislatures). Indeed, the very case relied on by Judge Sumi for the proposition that the Open Meetings Law applies to the legislature –State ex rel. Lynch v. Conta<\/em>, 71 Wis.2d 662, 239 N.W.2d 313 (1976) – recognizes that very distinction. It could issue declaratory relief as to the actions of individual legislatures and impose forfeitures upon them because it was not interfering with \u201cthe functions or separate power of the legislative branch,\u201d id.<\/em> at 698, and expressly stated that “[t]he case is accepted, as not contrary to separation of powers, in that it concerns application of the forfeiture penalty to members of a body, not to the branch of government.”\u00a0 Id<\/em>. at 700.<\/p>\n

Ed \u2013 and Judge Sumi \u2013 want to suggest that this line of cases was somehow broken by Milwaukee Journal Sentinel<\/em>. As I explained on my personal blog, Judge Sumi flatly misstates what happened in Milwaukee Journal Sentinel.<\/em> Ed agrees, but argues that what he calls a \u201cregrettable error\u201d has no impact on the validity of the analysis. I respectfully disagree. Here\u2019s why.<\/p>\n

Judge Sumi wants to use Milwaukee Journal Sentinel<\/em> for the proposition that a court can invalidate a law for violation of what she calls a \u201cconstitutionally-based procedural statute.\u201d That is, she says, precisely what happened in Milwaukee Journal Sentinel<\/em>.<\/p>\n

That is, in fact, precisely what did not<\/em> happen. Nor does the Court suggest that an act of the legislature could be invalidated for failure to comply with a statutory requirement.The Court invalidated nothing.<\/p>\n

It rejected an argument that an act adopting a collective bargaining agreement amended \u2013 sub silentio<\/em> \u2013 the Public Records Law. The majority (over the dissent of the Chief Justice) held that it did not because, were it construed to have done so, the strictures of the state constitution<\/em> \u2013 in particular, Art. IV, sec. 17 – would be violated. It went on to discuss sec. 111.92(1)(a) (which required a bill expressly setting forth whatever statutory amendments are required to conform with the provisions of a collective bargaining agreement), but that discussion is given over to noting that the statute is consistent with the constitution and did not \u2013 indeed could not \u2013 support an enactment that did not follow constitutional requirements. It expressly disavowed any suggestion that it was acting on the basis of an extra-constitutional statutory rule of procedure, noting the very cases that critics of this aspect of Judge Sumi\u2019s decision rely upon.<\/p>\n

Milwaukee Journal Sentinel<\/em> would be on point if we could conclude that the specific requirements of the Open Meetings law alleged to have been violated here were \u2013 like those in Milwaukee Journal Sentinel<\/em>\u2013 constitutionally mandated. But Judge Sumi made no such finding nor could she. The complaint filed by District Attorney Ozanne made no constitutional claims. Moreover, it seems unlikely that he (see<\/em>Judge Sumi\u2019s own ruling in the Falk case) would have standing to raise constitutional claims.<\/p>\n

Even were this not the case, it would take some heavy lifting to find particular notice requirements in Article IV, sec. 10\u2019s requirement that both houses of the legislature be \u201copen.\u201d But most fundamentally, Judge Sumi made no such finding, stating that the legislature has \u201cchosen\u201d to be governed by the open meetings law. (Decision, p. 10) (Indeed, the Open Meetings Law itself says that either house of the legislature can exempt itself from its strictures by the simple expedient of an internal rule.)<\/p>\n

Once we acknowledge, that the Open Meeting Law is a rule of process chosen by the legislature, we are in that line of cases represented by Stitt<\/em>. A legislative action in violation of a self imposed procedural rule cannot result in invalidation of an otherwise legislative enactment because the legislature is free to abandon that self imposed limitation anytime it wants. \u00a0To hold otherwise would violate the principle of separation of powers and the particular command of Art. IV, sec. 8 of the state constitution. One does have to look \u201cfurther\u201d than Marbury v. Madison<\/em> to address this issue. <\/em><\/p>\n

I get the argument that is being feinted at but never fully developed. It\u2019s that a statute can have some sort of quasi-constitutional status such that the normal rules don\u2019t apply. For those \u201csuper statutes,\u201d I guess, the argument would be that only express repeal can relieve the legislature of their binding nature. Milwaukee Journal Sentinel<\/em>might have stood for that if the Court hadn\u2019t made clear that it thought the requirement of a separate or a companion bill was constitutionally required. Writing separately in Milwaukee Journal Sentinel, Justice Ann Walsh Bradley suggests that a statute can be something more than a rule of procedure but less than codification of a constitutional command and that this might matter, but that she was the only justice who advanced the idea weakens rather than strengthens its currency here<\/p>\n

Perhaps Judge Sumi is making new law \u2013 creating a new kind of statutory animal. I don\u2019t thing that works. All sorts of legislative rules of procedure can be said to have a constitutional \u201cconnection.\u201d But once we agree that a particular statutory requirement is a matter of choice, two overriding principles end the conversation. One is that a legislature cannot bind future legislatures. The other is that courts cannot interfere with the legislature\u2019s determinations as to how it will proceed other than to enforce a constitutional requirement.<\/p>\n

There are other problems with the decision. The court (based on that \u201cold\u201d precedent – one that was cited with approval in 1977 and never called into question) lacked the authority to enjoin publication. That question (and the matter of whether the bill was published) is not moot given the adoption of collective bargaining agreements subsequent to the date that the law was ostensibly published. The court has yet to explain why a violation that affected only the actions of the Joint Committee on Conference justifies invalidation of the acts of the Assembly and the Senate which no one claims tp have been taken in violation of the Open Meetings law. The court has yet to expressly address the state\u2019s claims that there were legislative rules that, by the statute\u2019s own terms, supercede the notice provisions of the Open Meetings law \u2013 merely asserting that there are \u201cno such rules.\u201d The justification for invalidating the rule is also extraordinarily weak, failing to address why the principles of the Open Meetings Law are served by invalidating a law that was perhaps the most publicly debated piece of legislation in state history and that was passed before thousands of screaming people.<\/p>\n

One final word is in order \u2013one that allows us to end in at least partial agreement. Ed castigates the Department of Justice for suggesting that it may seek Judge Sumi\u2019s recusal. DOJ\u2019s point was that, in filing a brief in the Supreme Court defending her actions below, Judge Sumi took a position on a matter that was still at issue in the matter before her and with respect to which (at the time) further proceedings were contemplated. (Indeed, Judge Sumi\u2019s issuance of a final order was rather unusual in that no dispositive motion was before her.)<\/p>\n

I would not have written the letter. I can\u2019t see what purpose it served and it is not clear to me that any \u201cbias\u201d exhibited by Judge Sumi stemmed from extrajudicial sources. I have had the pleasure \u2013 and discomfort \u2013 of being before judges who either loved or hated my case from the get go. But as long as such views are based on the law and the record, they do not reflect impermissible bias. But just as I will not question Judge Sumi\u2019s competence or character behind a decision that I think is quite clearly wrong, I will not join Ed in suggesting that the letter constituted overly aggressive litigation tactics that are somehow at odds with the constitutional responsibility of the Attorney General.<\/p>\n","protected":false},"excerpt":{"rendered":"

It should come as no surprise that Professor Fallone and I disagree on Judge Sumi\u2019s decision in Ozanne v. Fitzgerald. I particularly take issue with his suggestion that criticism of the decision is the product of \u201csloppy lawyering.\u201d In my view, that characterization is unfair and inaccurate. Nor is the legal \u2013 as opposed to […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[80,68,3,75],"tags":[],"class_list":["post-13559","post","type-post","status-publish","format-standard","hentry","category-constitutional-interpretation","category-judges-judicial-process","category-wisconsin","category-wisconsin-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13559","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=13559"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13559\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=13559"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=13559"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=13559"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}