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State ex rel. Ozanne v. Fitzgerald, 2011AP613-LV, District 4, 3/24/11

certification request; case activity

Budget Repair Bill TRO

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. … 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, as indicated by a non-party brief jointly filed by WEAC, AFSCME District Counsel 40, AFSCME District Counsel 24, ATF-Wisconsin, AFSCME District Counsel 48, SEUI Healthcare Wisconsin, and the Wisconsin State AFL-CIO.  Accordingly, pursuant to Wis. Stat. Rule 809.61 and J.R.S. v. Fond du Lac Circuit Court, 111 Wis. 2d 261, 263, 330 N.W.2d 217 (1983), we certify the petition for leave to appeal and accompanying motion for temporary relief to the Wisconsin Supreme Court.

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.[3]

Couple of very minor points. As you well know, the Dane County Circuit Court enjoined the Secretary of State from publishing the Act, thus preventing it from taking effect. What’s the authority for this apparently unprecedented exercise of an authority? “Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable,” § 19.97(3). Broad as the language is (any action), “voidable” implies something different from “void.” The injunction treats the Act as void, and therefore can’t be put into effect, rather than voidable afterward. Or so it might be argued.

There’s also a (non)justiciability problem, recognized by such cases as State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983) (“we conclude this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments”), which the court alludes to but doesn’t develop in much detail. Thus, violation of a “procedural” requirement in the enactment of a statute thus isn’t reviewable, because it’s considered to be a nonjusticiable political question, Baines v. NH Senate President, 152 NH 124 (2005), citing Stitt among other authority. Is nonjusticiability affected by the Open Meetings Law? Not if you’re in New Hampshire, Hughes v. Sup. Ct., 876 A.2d 736 (N.H. 2005) (“Courts throughout the country have found that whether a legislature has violated the procedures of a state right-to-know law is not justiciable”). But as noted, our statutes say an OML violation causes a “voidable” outcome. Perhaps that language operates as a waiver of the nonjusticiability principle. Perhaps not, though: § 19.87(2) exempts from OML coverage various legislative events, indeed, exempts any “provision … which conflicts with a rule of the senate or assembly or joint rule of the legislature.” Perhaps that also-broad language reserves nonjusticiability. The trick is whether there can be judicial oversight over the construction of such a legislative “rule.” Not if nonjusticiability applies to this context. Otherwise, you’ve got judges wading very deeply into the legislature’s business. Tom Foley, for example, argues with lapidarian skill the meaning of the rule(s) in question. Whether you want legislation subjected to a jeweler’s eye is what nonjusticiability is really about.

Lots more to this case than that. The Wheeler Report has performed a real service in posting relevant documents, currently available on its front page.

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