Wisconsin’s Collective Bargaining Law on Hold.

by Harry on March 18, 2011

It was to be published today, and take effect tomorrow. The Secretary of State held off publishing the law till the last minute, and somebody sued him in time (unlike the Governor, and the various legislators, he does not have immunity). An odd case, really, someone doing everything they possibly can to get sued. LaFollette seems to have been SofS forever: today is the finest moment in his career. Thanks, Doug. Story here.



JM 03.18.11 at 8:21 pm

Assistant Attorney General Steven Means … added that the bill is significant to the state, and the ruling raises significant constitutional issues about when “a court can interfere in the legislative process.”

What the Marbury is that supposed to mean?


JD Rhoades 03.18.11 at 9:22 pm

I’m waiting for all the monkeys who were dancing and hooting and gleefully throwing poo when a Florida judge ruled against “Obamacare’ to start their usual shrieking over “activist judges” now.


Harry 03.18.11 at 10:06 pm

That Tommy Thompson, appointing judges like this. tsk.

Nothing activist about this, though, the judge is holding it so that what looks like a straightforward violation of procedure can be evaluated. Not ruling against it.

But yes, I oppose activist judges too, and if this were a matter of the substance of the law I would be pleased in one way, but in principle opposed (and I’d say so here). We’re going to win this through politics, which is the only way to win it legitimately.


Rafael Santana 03.18.11 at 10:18 pm

As a law nerd with a view of the Wisconsin capitol building from his office, and a mind to procrastinate this fine Friday afternoon, I want to make some comments on this post.

First, the bill was scheduled to be published on 3/25, after the maximum 10 business days after its signature by the governor, and then go into effect the next day on 3/26. However, today was the last day Judge Sumi was in session before she went on vacation for a week. So in that sense, the temporary restraining order was a last minute decision.

Second, the “immunity” issue is kind of a red herring. The lawsuit here claims that passage of the collective bargaining bill violated the open meetings law, and seeks two forms of relief. First, it requests that the legislators who violated the open meetings law pay the forfeiture penalties called for under the law. Second, the lawsuit seeks an order prohibiting the collective bargaining law from going into effect, by barring the Secretary of State from publishing it. The legislators are arguably immune from the forfeiture claim while the legislature is in session. No one is accusing the Secretary of State of doing anything wrong, and no one is looking for money from him, so “immunity” is not applicable. Also, it is my understanding that it is actually the norm to wait the 10 business days, and that it is unusual to rush publication of a passed bill.

Also, as to JM’s comment, I think the AAG does have a point that it is unusual for the court to insert itself in the legislative process. Judicial review (including Marbury) happens after a law has been passed and enacted, and either someone who has been sued under the law, or has a fairly sound basis for worrying that they would be sued under the law, challenges the validity of the law. If the courts agree that the law is invalid, they simply refuse to enforce it. The law isn’t removed from the books. I can’t think of an instance where a court has actually prevented a law from being passed. and here, that’s essentially what the plaintiffs are trying to do. They are seeking to not just prevent enforcement of the law, but to essentially stop its enactment.

But the neat thing about Wisconsin’s open meetings law is that it seems to allow such an “interference” when it comes to open meeting violations. The law specifically provides that legislative actions taken in violation of the law are “voidable,” and that the courts can issue “such other [i.e., in addition to the financial penalties] legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment, as may be appropriate under the circumstances.” Wis. Stat. s. 19.97. So it looks like the courts are empowered to reaching into the legislative process when it comes to open meeting law violations.

Of course, all this would probably be moot if they just re-pass the bill.


mpowell 03.18.11 at 11:05 pm

Well, let’s not overlook the legal hurdles too quickly. If the legislature has built in super-majority like requirements part of politics is forcing those majorities to be assembled. Or to put it another way, if you don’t need a majority to get what you want, don’t wait for a majority to get it. But I don’t really understand the details in Wisconsin, so that may not be the case here.


Christian Long 03.19.11 at 5:30 am

I have a friend who has been waging a Quixotic battle against corruption at UW Stevens Point, so I’ve been getting an earful about open meetings laws for years. Now it seems that getting exercised about such matters has gone mainstream. Let’s hope it lasts!


Margaret 03.19.11 at 3:53 pm

Rafael Santana’s explanation is extremely helpful but now everything seems to be coming down to Rule 93 (if I am remembering the number correctly) about special sessions of the legislature and whether this rule overrides the open meeting law. Can someone explain all of this now? (Things were a whole lot easier when all you had to do was mill around and chant.)


rhino 03.20.11 at 12:18 am

Margaret, I think you have encapsulated the true difficulty of activism.

Who said the reason socialism would never catch on was ‘it took up too many evenings’?


Tom 03.22.11 at 5:04 pm

“I’m waiting for all the monkeys who were dancing and hooting and gleefully throwing poo when a Florida judge ruled against “Obamacare’ to start their usual shrieking over “activist judges” now.”

Actually applying the Constitution is now activist? Do you really know what the word means?

Comments on this entry are closed.