No surprise: Wisconsin judge expands TRO to block further implementation of collective bargaining law

posted at 7:25 pm on March 29, 2011 by Allahpundit

Remember how the state’s Legislative Reference Bureau published the law on Friday, arguing that because the judge had only mentioned the Secretary of State in her TRO and not the Bureau that it technically wasn’t barred from acting?

Well, everyone’s barred now.

“Further implementation of the act is enjoined,” said Dane County Judge Maryann Sumi.

Sumi noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi’s earlier temporary restraining order.

“Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear,” she said.

But minutes later, outside the court room, Assistant Attorney General Steven Means said the legislation “absolutely” is still in effect.

The judge conspicuously didn’t rule on whether the publication of the law on Friday by the LRB was valid or invalid under the original TRO. She’s going to take more testimony on that issue later this week. If she rules that it was invalid, today’s actions by the state to collect higher contributions from public employees’ paychecks towards pension and benefits will presumably have to be undone. If she rules that it was valid because she screwed up in the original TRO, then the law is in effect and the TRO enjoining publication will become moot. At that point, the court would proceed to the underlying question of whether Republicans violated the state’s Open Meetings Law by failing to give enough advance notice before it called the conference committee that led to the CB bill being passed. Got all that? If you can spare five minutes, I recommend following the link up top and reading the Journal-Sentinel story in full. The legal thicket that’s already sprouted around the new CB law is mind-numbing, and the partisan politics at play are so intense that the court’s appointed independent counsel for the Democratic secretary of state because he and the Republican attorney general are at odds. The grand point, in case you’re missing it, is that next week’s state supreme court election is very, very important, and given the amount of energy on the left right now, we should be very uneasy about our chances.

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In a later statement, Department of Justice spokesman Bill Cosh said: “We don’t believe that the court can enjoin non-parties. Whether the Department of Administration or other state officers choose to comply with any direction issued by Judge Sumi is up to them.”

Sumi has not yet ruled on whether lawmakers violated the open meetings law, but she noted the Legislature could resolve the litigation by passing the measure again. Republicans who control the Legislature showed no signs of considering that.

“It’s disappointing that a Dane County judge wants to keep interjecting herself into the legislative process with no regard to the state constitution,” said a statement from Assembly Speaker Jeff Fitzgerald (R-Horicon). “Her action today again flies in the face of the separation of powers between the three branches of government.”

Richard Esenberg said he was not surprised by the ruling but criticized the judge.

“There is applicable Supreme Court precedent that a court has no authority to enjoin the publication of a law,” he said. “The state has repeatedly cited that law to her and as far as I know she has not only failed to explain herself about why she feels she has the authority, she hasn’t even acknowledged there is an issue. That just leaves me speechless.”

Esenberg was referring to a 1943 state Supreme Court opinion that said courts could not interfere with legislation until it is published and becomes law.

WoosterOh on March 29, 2011 at 11:50 PM

If you’re in Wisconsin you better show up to vote for Prosser next week. Bring a couple friends, too.

The Republicans should quickly re-pass the law now that they have a quorum. That would render the TRO moot. Why didn’t they do that when the fleebaggers returned?

Physics Geek on March 29, 2011 at 11:02 PM

It should be an option, but if they do that they risk the average, uninformed voters of the state perceiving the original effort as illigitemate. It’ll make the union goons look correct.

It should be an option, but I don’t think the primary option.

The other issue is the 10 days prior to publication. Even if they re-pass it now, It wouldn’t do any good if Prosser loses and his replacement is seated right away. I don’t know off the top of my head how long after the election the new justice is formally sworn in.

BadgerHawk on March 30, 2011 at 1:27 AM

Here’s the problem with the “county judge”, does she have jurisdiction? Whatever her scope is limits her impact. A county judge can stop action in her county, not across the state. That is why there is appellate courts. Also, appellate courts usually have smarter judges on them, which is a counter balance to the local nutjobs we allow to don black robes.

If she has limited scope, wrote a bad injunction, it is she that screwed up. She can’t go back and fix it.

archer52 on March 30, 2011 at 7:41 AM

why do you Wisconsin morons have another election when you just had one 6 months ago. Seems that Wisconsin is full of dumbass money wasters…

NRA Lifer on March 30, 2011 at 8:24 AM

Why is it the Democrats always know how to contort the law to suit them, but the Republicans remain clueless? They always seem to be standing around with their thumbs up their butts wondering “what happened?”.

SKYFOX on March 30, 2011 at 8:50 AM

How can you ignore a judge….?

NeoKong on March 29, 2011 at 7:57 PM

The same way the judge ignored her obvious conflict of interest, and the law embedded within the Wisconsin Constitution (Article IV, Section 8: “Each house may determine the rules of its own proceedings…”)

dominigan on March 30, 2011 at 8:59 AM

How can you ignore a judge….?

NeoKong on March 29, 2011 at 7:57 PM

When a judge oversteps their authority.

Wade on March 30, 2011 at 9:32 AM

Why are the republicans going through this charade with a liberal judge who they know is going to find some reason to invalidate the law, when the judge herself said the republicans should just repass the legislation? The repubs should do so immediately and should include the law enforcement unions as well. They violated their public duty, and now should not receive a benefit for their outrageous acts and omissions during the democrat thuggery in Madison.

eaglewingz08 on March 30, 2011 at 11:21 AM

this is what happens when you let the liberals in charge appoint liberal judges.

mmnowakjr85 on March 30, 2011 at 12:31 PM