Bloomberg News

Wisconsin’s Walker Asks Court to Toss Union Law Challenge

June 06, 2011

(Updates with comment by minority leader’s attorney in penultimate paragraph.)

June 6 (Bloomberg) -- Wisconsin Governor Scott Walker’s administration asked the state’s highest court to take over and then dismiss a legal challenge to legislation limiting public employees’ ability to engage in collective bargaining.

The Wisconsin Supreme Court today heard arguments from lawyers for the administration, the state prosecutor who challenged the legality of the law and the trial court judge who on May 26 ruled that the measure was invalid because legislators violated the state’s open-meetings law.

Assistant Attorney General Kevin St. John argued today that the case is one of a separation of powers and the circuit court overstepped its authority.

“This court should act now to restore the balance of power,” St. John said. “The legislature has the exclusive right to determine its process.”

Walker, a first-term Republican, signed the challenged legislation on March 11. It requires annual recertification votes for public employees’ union representation and makes their payment of membership dues voluntary. Firefighters and police officers are exempt.

Under the new law, state workers would contribute 5.8 percent of their salaries toward pensions and pay 12.6 percent of their health-insurance costs.

Worker Rights

Democrats and organized labor opposed the legislation as an attack on worker rights. Opponents protested inside and outside the state capital for almost four weeks.

Dane County District Attorney Ismael Ozanne sued March 16 in state court in Madison, Wisconsin’s capital. He alleged the bill was drafted by a conference committee of six legislators which afforded less than two hours public notice of the meeting rather than the required 24.

Four of those legislators were Republicans, including state Senate Majority Leader Scott Fitzgerald and his brother, Assemblyman Jeff Fitzgerald. Only one of the two Democratic legislators, Assembly Minority Leader Peter Barca, participated in the March 9 meeting and did so under protest.

Judge Maryann Sumi issued a temporary order blocking publication of the measure on March 18, the last step required to give it force and effect.

When state Attorney General J.B. Van Hollen appealed that ruling to an intermediate appellate court, that panel referred it to the Supreme Court, asking whether a trial court judge could void a law created in violation of the open-meetings rule.

Law Posted

While Democratic Secretary of State Doug La Follette said he would comply with Sumi’s March 18 ruling, a state agency posted the law on the Internet, leading administration officials to claim it was effective, prompting Sumi to issue a supplemental order in which she said the measure remained stayed.

Then, on April 7, Van Hollen petitioned the state Supreme Court to invoke its original jurisdiction, wrest control of the Ozanne-filed case from Sumi and dismiss it, arguing that Internet publication by the state’s Legislative Reference Bureau mooted the legal challenge.

Ozanne today told the high court it should reject the attorney general’s request it take control of the dispute.

“The clear violation from my standpoint is that they did not give 24 hours notice,” the prosecutor said. “I don’t think that is in dispute.”

While legislators can give just two hours notice if there is good cause, he said, the defendants here didn’t give that minimum notice either.

‘Heart and Soul’

Sumi last month ruled the law was illegitimately created.

“This case is an exemplar of values protected by the open- meetings law: transparency in government, the right of citizens to participate in their government and respect for rule of law,” Sumi wrote in her ruling.

Marie Stanton, a lawyer for Sumi, today told the Supreme Court justices that the state’s open-meetings law is “tied, heart and soul” to its constitution.

Justice Shirley Abrahamson asked Stanton what made the legislature’s action a constitutional issue, not a procedural one.

“What does the constitution say?” Sumi’s lawyer responded. “That the doors are open. That is the nexus to the open-meetings law.” About 150 members of the public who sought access to the contested March 9 committee meeting that produced the bill were denied entry, Stanton said.

‘Radical Proposition’

Van Hollen’s deputy, St. John, in his rebuttal called Sumi’s ruling “a radical proposition” that, if allowed to stand, would result in “continuous marches done to the courthouse.”

“There would be no finality to any law,” the assistant attorney general said.

Earlier in the hearing, St. John told Abrahamson that the state’s constitution determines how a bill becomes law and that the legislators had proceeded accordingly.

“It was followed in this case,” St. John said.

“You are not contesting that the doors were locked for approximately 40 minutes. How can locked doors be consistent with the constitutional provision that the doors be open?” Justice Ann Walsh Bradley asked St. John.

“Because the meeting was not in secret,” St. John replied.

Robert Jambois, a lawyer for the assembly minority leader, Democrat Peter Barca said 100,000 people in Madison were interested in what was transpiring in the closed session.

“They didn’t like the messy aspects of Democracy,” Jambois said of the legislature’s Republican majority.

The cases are State, ex-rel Ozanne v. Fitzgerald, 2011AP613; and State v. Circuit Court for Dane County, 2011AP765, Wisconsin Supreme Court (Madison).

--Editors: Mary Romano, Michael Hytha

To contact the reporter on this story: Andrew Harris in Chicago at; Marie Rohde in Madison, Wisconsin at

To contact the editor responsible for this story: Michael Hytha at

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