Using blunt language accusing Dane County circuit judge Maryann Sumi of commandeering the Legislature's powers, the state Supreme Court ordered the law ending most collective bargaining for public workers reinstated Tuesday afternoon.
Sumi had previously enjoined the law from being published, ruling that the Legislature violated the open meetings law in passing it. The high court's 4-3 decision came as lawmakers were preparing to debate the state budget bill; GOP leaders had vowed to reinsert the collective bargaining language in that measure if the court did not act.
But it did.
Among other things, the justices said Sumi's decision striking down the law before it was published - essentially before it became law - violated the state's separation of powers doctrine, refused to review charges that the law was invalid because the Legislature did not follow certain notice provisions of the open meetings law, found that the public had access to the Capitol at all times during passage of the law, and determined that only the Legislature could interpret its own rules of procedure.
The majority was formed by justices Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler. Chief justice Shirley Abrahamson and justices Ann Walsh Bradley and N. Patrick Crooks dissented, though they concurred in parts of the majority opinion.
The court decision represents a major triumph for Gov. Scott Walker and the GOP majority in the Legislature, and it was hailed by attorney general J.B. Van Hollen as well.
"I filed this Petition for Supervisory Writ to reinforce the separation of powers doctrine," Van Hollen said. "The court has vindicated our arguments that the Dane County circuit court overstepped its constitutional authority when it sought to invalidate the Budget Repair Bill on the basis of an alleged violation of the Open Meetings Law."
The Republican leaders of the Legislature, Sen. Scott Fitzgerald (R-Juneau) and Rep. Jeff Fitzgerald (R-Horicon), were equally gleeful.
"The headlines shouldn't be about the procedure, even with this vindication," they said in a joint statement. "Republicans are passing a budget this week that focuses on jobs, improves the economy, permanently freezes property taxes and turns a $3 billion deficit into a $300 million surplus."
The Fitzgeralds said the Supreme Court decision was not unexpected.
"We've been saying since day one that Republicans passed the budget repair bill correctly, so frankly this isn't much of a surprise," they said. "We followed the law when the bill was passed, simple as that."
Predictably, unions and Democrats criticized the decision.
"The public school teachers and support staff who are dedicated to Wisconsin's students and schools wholeheartedly disagree with the court's findings," said WEAC president Mary Bell. "The divisive nature of the process - and now this ruling - highlights the polarizing influence Gov. Walker has brought to our state. The extreme agenda and refusal to seek real solutions are the reasons why our members - by the tens of thousands - are active in recall elections."
Bell said the upcoming recalls were the first step in "taking back Wisconsin."
Senate Democratic leader Mark Miller, one of the senators who fled to Illinois during the standoff on the issue, said the Republicans' misplaced priorities had cost the the state dearly.
"Workers offered to make economic concessions on pensions and benefits that could have saved the state millions of dollars, only asking that they not lose 50 years of workplace rights," Miller said. "Gov. Walker and the legislative Republicans' insistence on union busting and taking away workers' rights resulted in months of legal wrangling, unprecedented political divisiveness and millions of dollars of lost budget savings."
The majority decision
In making its decision, the court very quickly pointed to the separation of powers doctrine and its determination that Sumi had violated it in her lower court ruling.
"This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature," the justices wrote.
The justices point to Goodland v. Zimmerman, in which the high court addressed whether a court has the power to enjoin publication of a bill duly enacted by the Legislature.
"The court ... explained that the 'judicial department has no jurisdiction or right to interfere with the legislative process,'" the justices wrote in quoting that decision. "'That is something committed by the constitution entirely to the legislature itself.'"
The justices said they were addressing whether a court could enjoin before publication because of the public importance of the issue and to reiterate that Goodland remains the settled law of the state.
"Accordingly," they wrote, "because the circuit court did not follow the court's directive in Goodland, it exceeded its jurisdiction, invaded the legislature's constitutional powers under Article IV, Section 1 and Section 17 of the Wisconsin Constitution, and erred in enjoining the publication and further implementation of the Act."
That said, the majority said there was nothing left to prevent secretary of state Doug La Follette from publishing the law, as required by the Legislature, which until now he has refused to do.
"The legislature has set the requirements for publication," they wrote. "However, the Secretary of State has not yet fulfilled his statutory duty to publish a notice of publication of the Act in the official state newspaper. ... Due to the vacation of the circuit court's orders, there remain no impediments to the Secretary of State fulfilling his obligations under (the law)."
The majority likewise found that the Legislature did not violate the constitution's requirement that the Capitol doors remain open and the public be given access to legislative proceedings.
"The doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act," they wrote. "The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live. Access was not denied. 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."
In addition, the majority declined to review charges that the law was invalid because the Legislature did not follow certain notice provisions of the open meetings law, in particular its requirement for a 24-hour meeting notice.
"It is undisputed that the legislature posted notices of the March 9, 2011 meeting of the joint committee on conference on three bulletin boards, approximately 1 hour and 50 minutes before the start of the meeting," the majority stated. "In the posting of notice that was done, the legislature relied on its interpretation of its own rules of proceeding. The court declines to review the validity of the procedure used to give notice of the joint committee on conference."
As in previous cases, they stated, the court cannot determine whether internal operating rules or procedural statutes have been complied with by the Legislature in the course of enactment, a position that was firmly rooted in the separation of powers doctrine, they wrote.
"The court's decision on the matter now presented is grounded in separation of powers principles," the justices wrote. "It is not affected by the wisdom or lack thereof evidenced in the Act. Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts. The court's task in the action for original jurisdiction that we have granted is limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act. We conclude that the legislature did not violate the Wisconsin Constitution by the process it used."
In a separate statement, Prosser noted the temptestuousness of the times.
"In turbulent times, courts are expected to act with fairness and objectivity," Prosser wrote. "They should serve as the impartial arbiters of legitimate legal issues. They should not insert themselves into controversies or exacerbate existing tensions. In the present dispute, different parties claim to speak for the State. It is the inescapable responsibility of this court to determine the law to facilitate a resolution of the dispute."
In her dissent, Abrahamson called the majority decision disingenuous and partisan.
The Legislature declared in the open meetings law that it would comply with the law to the fullest extent "in conformance with article IV, section 10" of the Wisconsin constitution, she observed.
"Statutes are interpreted to give effect to every word," she wrote. "A court assumes that the legislature says what it means, and means what it says. The words in a statute are not to be treated as rhetorical flair."
However, the Legislature also exempted its meetings from the open meetings law in that same statute, but the chief justice brushed that language aside.
"The legislature must play by the rules of the Wisconsin Constitution and the laws," she wrote. "Playing by the rules and playing fair are integral to public trust and confidence in our government officials - legislative, executive, and judicial. Public trust and confidence in the integrity of the judicial branch is engendered by a court's issuing a reasoned public decision based on public records after public arguments."
The bill precludes most public employees from collecting bargaining except for wages, and also requires state employees to pay more for their health care and pensions.
Richard Moore may be reached at email@example.com.