Wisconsin legal observers were “surprised last week when Madison-based judge Maryann Sumi issued a temporary restraining order blocking implementation of Gov. Scott Walker’s bill to limit public-sector collective bargaining.” A law professor was “astonished” by the legally-baseless ruling, which didn’t even bother to “address the relevant laws and rules that demonstrate that what the legislature did was proper.”
The judge’s decision made no legal or logical sense, but did make political sense: the judge has to run for reelection in a liberal area, and her own son was a union organizer. Her son is a liberal political operative who also happens to be a former lead field manager with the AFL-CIO and data manager for the SEIU State Council. Moreover, the judge’s husband is a campaign donor to three of the Democratic lawmakers who fled the state to block the passage of the collective bargaining law, as well as a donor to Gov. Walker’s opponent.
Judges in Wisconsin have to run for reelection, and this judge is elected in liberal Dane County, where the new collective bargaining law was resoundingly unpopular, and the new governor lost by a wide margin even while winning easily statewide.
There was little legal basis for the judge’s ruling. The Senate Chief Clerk and non-partisan legislative attorneys signed off on the legislation being consistent with the open-meetings law.
They did not have to give more notice than they did, because the Legislature was in special session, and the Open Meetings Law permits exceptions to be carved out by legislative rules. As the Milwaukee Journal-Sentinel noted
“Senate Chief Clerk Rob Marchant said last week that lawmakers gave two hours’ notice of the meeting but did not have to because Senate rules do not require public notice for meetings when the Legislature is in special session, and those rules trump the open meetings law because the Legislature was in special session.”
Even if it wasn’t consistent with the Open Meetings Law, that wouldn’t matter, because the collective bargaining law was passed after the Open Meetings Law and thus trumped it. Legislatures have the power to repeal laws either expressly or by implication, and later-passed laws trump earlier-passed ones. State laws like the Open Meetings Law trump contrary municipal ordinances that are passed later, because municipal governments are subordinate to state governments; but they cannot trump state laws passed later. For them to do so would effectively render future legislatures powerless to legislate or change the law.
Moreover, judicial intervention in this case invades legislative prerogatives under the constitutional separation of powers by having the courts interpret legislative rules at variance with the legislature’s own interpretation (something the federal courts are forbidden to do under doctrines like the enrolled bill rule, which I discuss below).
If Wisconsin courts did what federal courts do when confronting similar challenges, they would throw out the lawsuit as being an encroachment on separation of powers for meddling in how the legislature interprets its own rules, since the leaders of both houses of the Wisconsin legislature have signed off on the challenged bill.
For example, the D.C. Circuit Court of Appeals turned away Public Citizen’s challenge to the validity of the Deficit Reduction Act of 2005 (DRA) in Public Citizen v. United States District Court for the District of Columbia. According to Public Citizen, the DRA was invalid because the House and Senate did not both approve the same version of the DRA. Rather, due to an alleged clerical error (that nonetheless altered substantive provisions of the bill), the two versions were different. This means the DRA never became a law, according to Public Citizen, because the bill signed by the President did not first pass both the House and Senate in accordance with Article I, section 7 of the Constitution.
The D.C. Circuit ruled that the claim was foreclosed by Marshall Field & Co. v. Clark, an 1892 case in which the Supreme court held that “the judiciary must treat the attestations of ‘the two houses, through their presiding officers’ as ‘conclusive evidence that a bill was passed by Congress.'”
Once a bill is signed by the leaders of the House and Senate, it is an attested “enrolled bill” that “should be deemed complete and unimpeachable” for purposes of the Constitution’s bicameralism requirement. To allow a challenge to laws passed in such circumstances would impermissibly “disregard” the legislature’s coequal status as a branch of government, and lead to uncertainty in the law, opening the door to “every act” being “at any and all times be liable to be put in issue and impeached,” creating an “intolerable” state of legal “uncertainty.”
In a similar vein, state judiciaries, like Virginia’s, have held that separation of powers limits the reach of state open-records laws as applied to governors’ offices and certain legislative communications.