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.

 

UPDATE

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.

 

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