Wisconsin High Court Sides With Walker on Anti-Union Law

By Ed Treleven, Wisconsin State Journal

15 June 11

Dane County judge overstepped her authority when she voided Gov. Scott Walker's measure limiting public sector collective bargaining, the state Supreme Court ruled Tuesday in a fractious 4-3 decision.

In a nine-page decision - followed by about 60 pages of concurring and dissenting opinions - the court's conservative majority said Dane County Circuit Judge Maryann Sumi "usurped the legislative power which the Wisconsin constitution grants exclusively to the Legislature" when she voided the law.

Sumi ruled that a legislative conference committee violated the state's open meetings law when it hastily met in March to amend the bill, allowing the Republican-controlled Senate to get around a boycott by Senate Democrats.

But in a stinging dissent, Chief Justice Shirley Abrahamson accused the authors of the court's order - Justices Patience Roggensack, Annette Ziegler and Michael Gableman, along with concurring Justice David Prosser - of naked partisanship in rushing out a decision that contained "unsupported conclusions."

State Department of Administration Secretary Mike Huebsch said DOA is reviewing the order "and will begin implementing (the law) when appropriate."

The court's order came just as the state Assembly was preparing to reinsert the collective bargaining language into the two-year budget Tuesday night to move beyond the legal impasse. Members of the Legislature's Republican majority greeted the order with delight.

"We've been saying since day one that Republicans passed the budget repair bill correctly, so frankly this isn't much of a surprise," state Senate Majority Leader Scott Fitzgerald said. "We followed the law when the bill was passed, simple as that."

State Sen. Alberta Darling, R-River Hills, said she was "thrilled."

"We knew we hadn't done anything wrong," she said. "Today was a day of justice. Today is a day of victory."

The court, however, declined to step into the dispute over whether the March 9 conference committee meeting violated the state's open meetings law, leaving it to the Legislature to set its own rules.

Assembly Minority Leader Peter Barca, D-Kenosha, said the court's decision validates secrecy by the Legislature.

"The majority of the Supreme Court is essentially saying that the Legislature is above the law. It's now clear that unless the constitution is amended, the Legislature is free to ignore any laws on the books," Barca said.

Alex Hanna, co-president of the Teaching Assistants' Association, questioned the timing of the ruling as "almost too perfect" and said it's an "incredibly awful precedent."

Majority: Doors Were Open

The court majority also said Sumi erred in barring publication of the law by Secretary of State Douglas La Follette, and it ruled that a constitutional requirement that the doors to both houses of the Legislature be open during business was met. When the conference committee met, the court said, the doors to the Senate and Assembly and the room where the conference committee was meeting were open to the press and to the public.

"There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees," the court wrote.

In his concurrence, Prosser wrote that he was "troubled" by Sumi's "apparent indifference" to established law allowing the Legislature to operate by its own rules.

"The circuit court second-guessed not only four legislative leaders but also the Senate chief clerk - an attorney - when it determined that no senate or assembly rule ... governed the notice requirement of the special session conference committee," Prosser wrote. "The circuit court, in effect, told the Senate chief clerk that he did not know what the Senate rule meant."

Prosser wrote that only a clear constitutional violation would justify voiding the collective bargaining law, and then only after the law was properly published.

'Partisan Slant'

In her dissent, Abrahamson said the high court erred in taking the case up directly instead of waiting for one party or the other to appeal a lower court's ruling. She singled out Prosser, whose concurrence, she wrote, "is long on rhetoric and long on story-telling that appears to have a partisan slant."

Abrahamson said she agreed with Justice Patrick Crooks' separate dissent, that the case should come to the Supreme Court as part of an "orderly appellate review of the circuit court's order with a full opinion."

"Only with a reasoned, accurate analysis can a court assure the litigants and the public that a decision is made on the basis of facts and law," Abrahamson wrote, "free from a judge's personal ideology and free from external pressure by the executive or legislative branches, by partisan political parties, by public opinion or by special interest groups."

Crooks wrote that the majority reached "a hasty decision" that doesn't address important questions about the Legislature's constitutional requirements to provide public access to its hearings and the courts' role in holding it to those requirements.

"Those who would rush to judgment on these matters are essentially taking the position that getting this opinion out is more important than doing it right and getting it right," he wrote. "It is rather astonishing that the court would choose to decide such an unusual and complex case without benefit of a complete record."

State Journal reporters Dan Simmons, Clay Barbour and Mary Spicuzza contributed to this report.