Obtuse Observer

March 22, 2011

The Fun in Wisconsin Over Collective Bargaining Continues

Wisconsin Judge Maryann Sumi (there’s some irony) issued a temporary restraining order against Act 10 preventing Secretary of State Doug La Follette from publishing the act (allowing it to take effect) until she’s ruled on a request for an injunction.  Hearings are scheduled for the end of March and beginning of April.  From Judge Sumi:

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“The public policy behind effective enforcement of the open meetings law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (collective bargaining law),” “We in Wisconsin own our government. . . . We own it in that we are entitled by law to free and open access to governmental meetings, and especially governmental meetings that lead to the resolution of very highly conflicted and controversial matters.”

Comes now Attorney General J.B. Van Hollen who is appealing her TRO:

“The Legislature and the governor, not a single Dane County Circuit Court judge, are responsible for the enactment of laws,” Van Hollen said in a statement. “Decisions of the Supreme Court have made it clear that judges may not enjoin the secretary of state from publishing an act. . . . Decisions of the Supreme Court are equally clear that acts may not be enjoined where the claim is that a rule of legislative procedure, even one as important as the open meetings law, has been violated.”

From a personal perspective it drives me up the wall how we have turned our judicial system into a supra-legislature.  No law is legal until the courts have said it is?  From a legal perspective Van Hollen’s argument is quite persuasive.  In order to grant a temporary restraining order the moving party must show:  he or she will suffer immediate irreparable harm unless the order is issued.  (That was the Cornell Law School understandable version.  For the Wisconsin Rules of Civil Procedure click here.)  A TRO functions only for a brief period as a matter of law and I believe it may not be appealed.  At upcoming hearings regarding the injunction the moving party will need to show that the law (which is not in effect) will cause immediate irreparable harm if the injunction is not ordered.  A law not in effect has no effect.  Even laws in effect but without substantial likelihood of enforcement would fail to meet the necessary burden.  Further, the harm must

Also, I found this interesting bit:

813.025 Ex parte restraining orders. (1) No circuit or supplemental court commissioner may issue any injunction or order suspending or restraining the enforcement or execution of any statute of the state or of any order of an administrative officer, board, department, commission or other state agency purporting to be made pursuant to the statutes of the state. If so issued, the injunction or order shall be void.

I have no idea if that rule will void the restraining order or not but it looks a lot like a rule designed to prevent judges from doing what Sumi did.

It’ll be good spectator sport watching how this plays out.



Just a couple additional comments.  First; the GOP can quite probably make the hearings moot by reintroducing the legislation, complying with the open meetings law and passing the act a second time.  Secondly, I found a clearer explanation of some of the procedural and substantive aspects of obtaining an injunction following a TRO:

A court order early in a lawsuit that prohibits the parties from taking a disputed action until the court can decide the merits of the case. For example, if a lawsuit is filed challenging the validity of a new government regulation, the court might issue a preliminary injunction preventing the government from enforcing the regulation until the court can decide whether the regulation is valid. Generally, the party seeking a preliminary injunction must show a substantial likelihood of success on the merits of the lawsuit and a substantial threat of irreparable harm if the injunction is not granted.


March 1, 2011

Boehner: House May Defend DOMA

And the story continuesAttorney General Eric Holder announced recently that the administration will no longer defend DOMA.  An option, in my opinion, well within their prerogative.  Holder suggested that the House take up the defense of DOMA in a recent letterRick Santorum suggested that Speaker John Boehner appoint counsel to defend the law.  And Boehner has said he hopes to reach a decision soon.  OK.  This is certainly an issue that matters to many people but the current situation certainly looks like political theater from all perspectives.

And so, I leave that behind and offer my thoughts on DOMA.  I am not sure if I have assembled them all in one place on the blog.  Now I will.  Aren’t you lucky? 

DOMA is intended to allow each state to decide for itself what their definition of marriage will be and allow them the right to deny marriages not meeting that definition.  This is accomplished by carving out an exception to the Full Faith and Credit Clause

As a concept I support the idea.  I like the states getting to decide for themselves by using the democratic process.  However, imo, DOMA is not a good law.  Not good in the sense that I don’t think it would survive a constitutional challenge.  Why?  The notion that Congress can carve out such an exception may have precedent; or it may not.  My gut tells me Congress may not and my laziness permits me to avoid digging.  Much more important than my opinion of the law is my opinion of the Supreme Court.   I suspect that four Justices on the left will elect to strike the law and that Justice Kennedy will join them.  Because of the questionable constitutionality of the law, I do not support DOMA.  

However, I do support an amendment effecting the same result for the same reasons.  Why?  Because that would settle the issue, once and for all, through the democratic process rather than through the progeny of various judicial opinions that will result in a protracted societal conflict.  The benefit of the former course is that 50 incubators will produce various results; both good and bad.  We can imitate the good and discard the bad on the road to ever broader consensus through our own choices rather than have one imposed by the courts.  Such rulings have the tendency to create sore feelings and long memories.  They entrench the positions of the passionate and extend the war of ideas beyond its natural expiration date.  We should rely on the people more and on the judiciary less.

February 3, 2011

Judicial Activism or Judicial Restraint?

President Obama’s staff recently chided Florida Federal Judge Roger Vinson with engaging in judicial activism.  The term is important to pin down. 

When conservatives, originalists, constructionists et al aver the term they mean the court has, without legal authority, reshaped and expanded the law in order to give effect to an otherwise unconstitutional policy because the court believes that the otherwise unconstitutional law is sufficiently worthwhile; that is, they replace their subjective opinion of the value of the law with the objective opinion of its legality.  Justice Thurgood Marshall once responded to a question at a clerk lunch about his theory of the law with:

you do what you think is right and let the law catch up,”. 

However, a judge is to interpret the law not make it.  Assertions of activism arise from judicial intrusion upon legislative authority.  Belief in the propriety of a law is no basis for its legitimacy.  Authority must be found in the constitution.

Liberals mean, near as I can tell, that they disagree with the opinion.  Comments following Andrew Sack’s recent NYT article objecting to the Florida ruling revealed consistent themes.  The court; doesn’t care about the people, is engaging in cronyism and is denying the rights of the people.  Wisdom, wants and wishes may birth motive for a law but they are insufficient to endow it with legitimacy.

Judicial activism does not concern itself with well enough reasoned opinions one disagrees with.  The charge is appropriately leveled at when judges exceed their authority and enter the legislative sphere in order to legitimize an otherwise illegitimate law. 

December 17, 2010

What the @#*% Are You Thinking!

Filed under: Courts,What the @#*% Are You Thinking! — Obtuse Observer @ 3:18 am

On November 2 Iowan voters bounced three State Supreme Court Justices by ballot.  Now these justices have filed suit.  From the Des Moines Register:

The lawsuit filed this week contends that the ballots cast Nov. 2 were illegal because a 1962 amendment to the state constitution says judges “shall at such judicial election stand for retention in office on a separate ballot which shall submit the question of whether such judge shall be retained in office for the tenure prescribed for such office….” 

The Legislature later approved putting the names of all judges on one ballot, the lawsuit says. 

But the lawyers argue that “combining on a single ballot all elections, including judicial elections, issues, and measures is a facial violation of Iowa Constitution Article V Section 17.”

An appeal to sanity.  People, we live in a republic where the rule of law is to be treasured and the voice of the people heard.  Whether the constitution of Iowa was offended or not by this structure of the ballot the suit by the judges is. offensive.

The judges are not unclear about the will of the people.  They wish to set aside that will.  When judges start invalidating elections on bases like this we will be much further into the tyranny of the judiciary than any had previously guessed.  They should be disbarred for jackassery. 

Judicial review as delivered from Marbury v Madison is not a constitutional authority.  The Supreme Court gave itself that authority!  People, judges are no more correct than voters.    Quit rather relying on one to five people to make whole sale shifts is fundamentally at odds with our form of government. 

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