Wisconsin DoJ files brief with state Supreme Court to vacate Sumi ruling
posted at 7:10 pm on May 27, 2011 by Ed Morrissey
Color the Wisconsin Department of Justice less than impressed with Maryann Sumi. According to a brief filed today with the state Supreme Court, Judge Sumi made so many errors in her ruling that threw out the PEU reform passed by the state legislature that it amounts to “a fundamental denial of due process”:
The state Department of Justice asked the state Supreme Court on Friday to immediately vacate a judge’s decision that voided a plan by Gov. Scott Walker to greatly limit collective bargaining for public workers.
In its filing, the department said Dane County Judge Maryann Sumi made so many errors in a ruling Thursday and that the Supreme Court should throw out her decision even before it hears oral arguments in the case June 6.
“These errors amount to a fundamental denial of due process and reveal the extent to which the circuit court was willing to exceed its jurisdiction in order to invalidate a politically controversial act of the Legislature,” wrote Deputy Attorney General Kevin St. John.
The WDoJ had already filed an appeal with the Supreme Court based on earlier actions by Sumi, but this is the first request to throw out the ruling published yesterday. Among the grounds for reversal listed: Sumi never held a hearing on whether a violation of the open-meetings law was sufficient to overturn law passed by the full legislature, as well as a violation of legislative immunity during the session. The court has already scheduled a hearing for June 6th on the previous requests, and the new filing will almost certainly be added to the same hearing.
Expect David Prosser to participate. Earlier in the week, the elections board certified Prosser the winner over JoAnn Kloppenburg with a 7,004-vote margin. Kloppenburg has to decide by Tuesday whether to file a court appeal of the board’s certification of Prosser as the winner. Prosser has no restrictions on hearing cases as a member of the court, however, and has no reason to recuse himself from this case — which is probably bad news for Judge Sumi.
Judge Sumi, appointed by former Republican Governor Tommy Thompson, badly botched the decision according to some legal experts. Christian Schneider atNational Review Online and others point to a glaring error made by Sumi, who wrote in her decision that the there was “no conflicting senate” rule that would contradict the open meeting law’s time requirements (24 hours notice for a legislative conference committee, from which a bill can then be brought to the floor).
But as law professor William Jacobson points out on his blog, there is indeed such a rule and that it specifically exempts committee meetings held during special sessions.
That’s not the only curious thinking in Judge Sumi’s opinion. Jacobson points to a critical precedent that says “courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman.” Sumi dismissed the impact of the precedent by claiming that it was decided before the open meeting law was passed. But Jacobson pointed out the obvious: “[T]he principle is the same; courts rule on legislation, courts do not stop legislation from being made.”