June 19, 2011

June 19, 2011 | Commentary on Legal Issues, Rule of Law

High Court got it Right

In approving Wisconsin's new collective bargaining law last week, the Wisconsin Supreme Court dropped an anvil on Dane County Judge Maryann Sumi's political rulings.

The state high court vacated all of Sumi's orders against Wisconsin's new labor law, declaring them invalid from inception. This avoids the need for legislators to hold another vote on the bill.

It is a victory for the soundness of the underlying legislative process and for the rule of law against activist judges who ignore the separation of powers between the legislative and judicial branches.

Sumi issued restraining orders that prevented the law from being published and going into effect, claiming the Legislature's passage violated the state's open meetings law. The Wisconsin Department of Justice not only appealed Sumi's orders, but it filed an original petition with the Supreme Court arguing Sumi acted beyond her authority and interfered with the Legislature's duties.

The Wisconsin Supreme Court agreed, stating Sumi had "usurped the legislative power which the Wisconsin Constitution grants exclusively to the Legislature." In fact, the Supreme Court pointed to a 1943 decision that specifically outlined the division of governmental powers between the legislative, executive and judicial branches of government.

In that 1943 case, the state's high court concluded the "judicial department has no jurisdiction or right to interfere with the legislative process. That is something committed by the constitution entirely to the Legislature itself." Further, the court wrote in 1943 that a court could not intervene and prohibit the publication of a new law passed by the Legislature because that would mean the court would be determining "what shall be law and not the Legislature."

Yet Judge Sumi summarily dismissed this precedent.

The court dismissed two other false claims made by unions and Democrats protesting the new collective bargaining law. The court held the Legislature did not violate a section of the state Constitution that requires the "doors of each house" to be kept open "except when the public welfare shall require secrecy."

According to the court, "the doors of the Senate and Assembly were kept open to the press and members of the public during the enactment of the act," as was the Senate parlor where the joint committee on conference met. WisconsinEye, the state's version of C-SPAN, broadcast all of the proceedings live.

These were inconvenient facts Judge Sumi ignored. The court concluded there is no constitutional requirement that access be provided "to as many members of the public as wish to attend meetings."

Finally, the court held the Legislature did not violate the state's open meetings law when a joint conference committee met. Sumi claimed that law required 24 hours notice of the meeting. But it was undisputed that the Legislature had posted notice of the meeting one hour and 50 minutes before its start in compliance with its own, internal procedural rules.

The court declined to "review the validity of the procedure used to give notice" since that would require the court to "intermeddle" in "purely legislative concerns."

The court's order aptly describes that judges should not be superlegislators.

Hans von Spakovsky is a senior legal fellow for the conservative Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in The Wisconsin State Journal