(CN) – A Wisconsin appeals court ruled Thursday that the fight over the state’s new collective bargaining law should go straight to the state Supreme Court. To add to the state’s political chaos, the ruling comes less than 2 weeks before Justice David Prosser faces a re-election challenge from Assistant Attorney General JoAnne Kloppenburg.
Four of the state’s seven justices must agree to hear the case. Prosser, up for re-election for a 10-year term, served with now-Gov. Walker in the Assembly. He said he would not recuse himself from the case.
The three-judge panel wrote: “We certify the following questions: (1) whether striking down a legislative act – also known as voiding – is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so, (2) whether a court has the authority to enjoin the secretary of state’s publication of an act before it becomes law.”
Dane County Judge Maryann Sumi last week issued a temporary restraining order prohibiting the secretary of state from publishing the law – a final step necessary for it to take effect.
Sumi found it likely that Dane County District Attorney Ismael Ozanne would prevail in his argument that Republican lawmakers violated the state’s Open Meetings Law by rushing the bill through with inadequate notice in a procedural trick.
Democrats had fled the state to deny Republicans a quorum. After a 3-week standoff, Republicans called a meeting of a conference committee and revised Special Session Assembly Bill 11 – the so-called Budget Repair Bill – so that it no longer required a quorum, then pushed the bill through both houses. It prohibits public employees from engaging in collecting bargaining for anything except wages, and imposes other rules, such as requiring workers to vote every year to recertify the union that represents them.
Gov. Scott Walker, a Republican, signed the bill into law March 11.
Ozanne, a Democrat, sued for a restraining order on March 16, which Judge Sumi granted on March 18.
Republican Attorney General J.B. Van Hollen appealed to the state’s District IV Court of Appeals on Monday, asking that the restraining order be lifted. It will not be.
Secretary of State Doug La Follette, wanted to publish the bill today (Friday), which would allow it to take effect Saturday.
Sumi has scheduled hearings for Tuesday, March 29, and April 1.
The appeals panel, of Judges Paul Lundsten, Paul Higginbotham and Brian Blanchard, voted 3-0 to certify the questions to the state Supreme Court.
“This case presents several significant issues involving justiciability and the remedies that are available under Wisconsin’s Open Meetings Law, WIS. STAT. § 19.81 et seq. As we will explain below, we believe that resolution of these questions will require clarification of the interaction between the Open Meetings Law and a line of cases dealing with the separation of powers doctrine. Many more cases bear on the issues, but we will limit our discussion to the four that our review so far suggests are most significant. … Plainly, this case has broad statewide implications for the general public and those most directly affected by the challenged Act, in addition to those interested in the manner of its passage,” the judges wrote.
After weighing arguments from the four cases, the panel concluded its 8-page ruling: “It is appropriate to certify to the Supreme Court appeals raising issues which that court might otherwise ultimately consider on a petition for review, in order to reduce the burden and expense of the appellate process on both the parties and the judicial system. See Wisconsin Public Serv. Corp. v. Public Service Comm’n of Wis., 176 Wis. 2d 955, 958 n.1, 501 N.W.2d 36, 37 n.1 (1993) (Abrahamson, J., concurring). Because this appeal presents significant issues, we believe that the Supreme Court is the proper forum for it.”
A separate, previous lawsuit challenges the bill’s constitutionality. In that complaint, Dane County and its top executive cite the obvious irony of the difficulty of explaining the procedural trick by which the Republican caucus claimed that a Budget Repair Bill will have no “fiscal impacts on the state.”