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Monday, June 17, 2024 | Back issues
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Wisconsin Legal Pileup Continues:|A.G. Sues Judge, Senate & Assembly

MADISON, Wisc. (CN) - In yet another blow in Wisconsin's fight against public employee unions, the state attorney general sued the judge who barred the state from publishing the controversial law, and the district attorney who filed the case. Attorney General J.B. Van Hollen asked the state Supreme Court to take jurisdiction and dismiss the case, claiming, "The Wisconsin Constitution clearly does not allow such actions by the judicial branch."

Van Hollen also sued the state Senate and Assembly and Secretary of State Doug La Follette, in a Petition for Supervisory Writ and Immediate Temporary Relief, filed directly with the state Supreme Court.

Van Hollen's move came a day after La Follette sued him, also at the Supreme Court. In that case, La Follette, a Democrat, said he did not want to be represented by Van Hollen, a Republican, in an appeal of the injunction issued by Dane County Judge Maryann Sumi, a defendant in the case Van Hollen filed Thursday.

The legal pileup derives from one of several challenges to the anti-union law, the so-called Budget Repair Bill, which Gov. Scott Walker and his Republican majority rammed through the Legislature without a quorum.

Van Hollen's complaint derives from a procedural complaint from Dane County District Attorney Ismael Ozanne, who said the Legislature violated the state's open meetings law to pass the bill. (Dane County is home to Madison, the state capital.)

After Democratic legislators fled the state to deny Republicans a quorum, Republicans met in committee and declared that the Budget Repair Bill was not a fiscal bill, and so did not require a quorum. Then they pushed it through without a quorum.

Ozanne said the speed with which that happened violated open meetings law, and Judge Sumi agreed. She barred the Secretary of State from publishing the law - the final step necessary for it to become law.

Gov. Walker then pulled another end run and had the law published by the Legislative Reference Bureau, and began enforcing the law over the weekend.

Judge Sumi brought that to a stop on Monday by reissuing her injunction, telling the governor that the law could not be published, period, until the smoke had cleared from the legal battlefield.

On Wednesday, La Follette sued Van Hollen, saying he - La Follette - did not want to challenge Judge Sumi's injunction, and that Van Hollen had not consulted with him before he did so.

Van Hollen fired back on Thursday, trying to remove the case from Sumi's hands.

None of these challenges involve the constitutionality of the law, Act 10 of a special session of the Legislature. It prohibits unions representing public employees from collectively bargaining for anything other than salary, and contains other onerous provisions to make union representation more difficult, such as barring the state from deducting union dues from paychecks, imposing penalties and possible jail time if any part of union dues is used for political purposes, and requiring public workers to vote to recertify their union every year.

To make things more confusing, although the Republican majority pushed Act 10 through by declaring that it was not a fiscal bill, Van Hollen told the Supreme Court, in his 37-page petition, that implementation of the law is imperative because it will save the state $30 million this fiscal year.

Suing on behalf of the state and its Department of Administration, Van Hollen said Judge Sumi's court cannot "void an act of Legislature" based on allegations of open meetings violations.

"The Open Meetings Law ... cannot create constitutionally protected rights," Van Hollen wrote.

He wants the Supreme Court to vacate Sumi's injunction: "If a court can issue an injunction preventing an act from becoming effective, there is no logical distinction between the Circuit Court's TROs purportedly enjoining the Secretary of State from publishing Act 10 and an injunction directed at the governor enjoining him from signing the underlying bill in the first instance."

Van Hollen says the injunction against Secretary of State La Follette is improper because of sovereign immunity, and that the TROs "have improperly interfered with the legislative process" and "do serious damage to the constitutional framework that undergirds our system of government."

The complaint adds: "A Petition for Supervisory Writ is not a direct appeal from a circuit court order. Instead, it invokes a unique procedure for commencing a new, direct action with the Supreme Court pursuant to Wis. Stat. 809.70, when it is claimed that a judge has exceeded his or her lawful authority. An original action may be brought by any person affected by the judge's action."

Van Hollen says the issues are "of great public concern that go to the very heart of our constitutional system of government."

For the record, La Follette, who was one of the organizers of the first Earth Day, in 1970, is a grandnephew of Robert "Fighting Bob" La Follette, a Republican congressman, senator and governor of Wisconsin, who ran for president on the Progressive Party ticket in 1924. He carried Wisconsin and took 17 percent of the national vote, but lost to Calvin Coolidge.

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