Wisconsin Department of Justice files petition in case halting publication of budget repair bill 

By Joe Forward, Legal Writer, State Bar of Wisconsin

March 21, 2011 – Wisconsin Secretary of State Doug La Follette, through the Wisconsin Department of Justice (DOJ), today filed a petition with the District IV Wisconsin Court of Appeals seeking leave to appeal a March 18 order that delays implementation of Gov. Scott Walker’s budget repair bill.

Last week, Dane County Circuit Court Judge Maryann Sumi issued a temporary restraining order (TRO) enjoining La Follette from publishing 2011 Wisconsin Act 10 to determine whether lawmakers violated Wis. Stat. section 19.84(3) in passing the bill. The circuit court scheduled a preliminary injunction hearing on the matter for March 29 and April 1.

The DOJ's petition asked the appeals court to stay the TRO so La Follette can publish the law on March 25. In addition, the petition seeks review of Judge Sumi’s TRO by the District IV appeals court, or certification to the Wisconsin Supreme Court.

The appeals court has responded, giving Dane County District Attorney Ismael Ozanne until 4 p.m. on March 22 to submit a memorandum addressing the DOJ's argument that the judicial branch does not have jurisdiction to enjoin the secretary of state from publishing the act. The appeals court order also gives Ozanne until March 23 to respond to the DOJ's petition.

In its petition, the DOJ asserts that an exception to section 19.84(3) exists under section 19.87(2) for legislative rules that conflict with the Open Meetings Law, and legislative rules were in play, thus preventing a violation.

Section 19.84(3) states: “Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.”

The DOJ also argues that Judge Sumi erroneously exercised her discretion in granting the TRO, and the circuit court lacked personal jurisdiction because the legislator defendants enjoy temporary immunity until after the regular session ends.

The petition poses the question, among others, of whether a court may “enjoin the publication of a law based on an alleged violation of the Open Meetings Law where the court lacks authority to declare the law void … even if an Open Meetings Law violation occurred.”

In her March 18 decision , Judge Sumi ruled that a TRO was warranted in the case, in part because the State showed a probability of success on the merits and the pleadings demonstrated irreparable harm could occur without it. Judge Sumi noted that protecting the Open Meetings Law is an important detail in preserving a transparent government.