By Brendan Fischer on June 15, 2011

In the Wisconsin Supreme Court's decision reinstating Governor Scott Walker's controversial collective bargaining plan, the Court's conservative majority not only neutered the Open Meetings Law, but in its rush to make a decision before legislative Republicans acted on threats, the Court overreached and potentially eviscerated the meaning of Article IV, Section 10 of the Wisconsin Constitution.

Even if conservatives cheer the outcome, persons of all political stripes should be concerned about the implications of this decision. The big issue here is not "separation of powers" vs. "checks and balances," but judicial activists making rushed Constitutional interpretations under political pressure.

Lack of Facts, Lack of Reason

The case came to the Wisconsin Supreme Court not as an appeal of Judge Sumi's May 26 decision striking down the collective bargaining bill, but as a review of Judge Sumi's March 18 temporary order, where she halted the law's implementation before both sides had finished presenting their cases, and before the relevant factual record had been developed. Under these conditions, the Court had limited evidence upon which it could base its decision.

Specifically, the case arrived to the Wisconsin Supreme Court through certification of the March 18 temporary order and through a supervisory writ (a rarely-used statutory procedure). Unlike an Original Action, where the Court could independently collect evidence and facts, and unlike a direct appeal from the lower court's order, where it would rely upon the information, evidence, and arguments developed at the lower court level, the Court here had very little to go on.

"Many people would likely find it puzzling," Justice Crooks writes in dissent, that "we, the highest court in the state, cannot simply order up whatever information is needed." But because of the unusual procedural posture, "those boxes of documents, transcripts and evidence that we ordinarily review were not made available to us."

Justice Abrahamson, also dissenting, wrote that "faced with no record, [the four justices in the majority] conjure their own facts -- something this court should never do, regardless of whether it is exercising appellate or original jurisdiction."  

"The ready availability of a direct appeal by aggrieved parties makes this all the more puzzling," Justice Crooks wrote. "I am convinced that these significant issues should be addressed through a direct appeal, which would allow this court to more fully resolve, with the benefit of a complete record, the complex legal and factual issues at stake."

The lack of factual background tainted the Court's decision and constitutional interpretation. Nothing prevented the Court from waiting to accept a direct appeal, and to make a careful decision based on a complete evidentiary record. But with Senate Majority Leader Scott Fitzgerald threatening to insert collective bargaining into the budget if the Court did not act before the end of Tuesday, the court rushed an order with minimal factual background.

According to Justice Crooks, "those who would rush to judgment on these matters are essentially taking the position that getting this opinion out is more important than doing it right and getting it right." Indeed, that is what happened. In its rush to issue an opinion, the conservative majority overreached, issuing a problematic constitutional interpretation and violating its own judicial principles in the process.

The Court's Decision

The Court's decision had two primary holdings. First, the conservative majority held that Judge Sumi did not have jurisdiction to prevent a bill from becoming law (as opposed to voiding a law once it is enacted). Second, the conservative majority held that the legislature did not violate Article IV, Section 10 of the Wisconsin Constitution, which requires that "the doors of each house shall be kept open except when the public welfare shall require secrecy." While the dissenting justices criticize the majority for both verdicts, the implications of the second holding are particularly troublesome.

District Attorney Ozanne had argued that the Open Meetings Law was a codification of the Wisconsin constitution, and therefore, violating the law amounted to a violation of the state constitution. While the law's preamble states it is "in conformance with article IV, section 10, of the constitution" and "it is declared to be the intent of the legislature to comply to the fullest extent with this subchapter," the court's majority sidestepped the issue of whether this codifies the constitution, and held that it does not qualify as a constitutional amendment. Therefore, the majority held, violating the Open Meetings Law does not violate the state constitution.

Questionable Constitutional Interpretation

Having held that violating the Open Meetings Law is not a proxy for violating the state constitution, the Court considered whether the legislature directly violated Article IV, Section 10 in passing the collective bargaining bill. The conservative majority interpreted the constitutional provision directly, writing:

...we have concluded that in enacting the Act, the legislature did not employ a process that violated Article IV, Section 10 of the Wisconsin Constitution, which provides in relevant part: "The doors of each house shall be kept open except when the public welfare shall require secrecy." The doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act. The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live. Access was not denied. There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees."

There are two problems here.

First, the majority looks to the "purpose" of the constitutional provision –- a move anathema to judicial conservatives –- and suggests it is relevant that members of the press were inside the senate parlor, and relevant that the proceedings were being broadcast live. (Prosser also makes a big deal about the live broadcast). Article IV, Section 10 says nothing about the press, and says nothing about alternate means of observing legislative meetings. By making these references, the majority is suggesting that the only purpose of Article IV, Section 10 is to allow the public a means to observe legislative meetings, and that the text of the constitution is less relevant than satisfying its perceived "purpose." A true judicial conservative would read "the doors of each house shall be kept open," and base their interpretation on whether those doors were kept open.

Second, under the majority opinion, "the doors of each house shall be kept open" apparently does not refer to the Capitol's external doors, but only those doors inside the building that lead into the House and Senate chambers. While those interior doors remained open during the Conference Committee meeting and Senate vote, the external doors leading into the Capitol were, for all intents and purposes, blocked.

I say this from personal experience. On March 9, the evening the Conference Committee met and the Senate passed the collective bargaining bill, I went to the Capitol upon receiving word of the emergency meeting.* Only one of the Capitol's four entrances was unlocked, and those entering had to pass through a single metal detector: as one might expect for an event that had been attracting international attention, I was not alone in wanting to observe the proceedings, and passing one-by-one into the building was extremely slow-going. Despite arriving before the rush, I had to wait at least 45 minutes to get inside, and once I entered, the vote had already happened and the legislative meetings concluded. Also upon entering, I was struck by how empty the building really was –- not for lack of interest, but simply because people could not get in. (see also the CMD liveblog from March 9).

On April 1, I testified as to these facts in the Ozanne v. Fitzgerald case, and this testimony is in the complete factual record. But from what I gather, the Wisconsin Supreme Court based its decision on the evidentiary record available on March 18, which does not include the later testimony of myself and many others.

If there is any meaning to the phrase "the doors of each house shall be kept open," it must apply to external doors. Even if the conservative majority did not intentionally interpret Article IV, Section 10 of the Wisconsin Constitution to only apply to interior doors, in its rush to issue a decision, that is precisely what happened. The Court based its decision on an incomplete factual record. Depending on how this precedent is interpreted it could have significant consequences.

Prosser's Folly

The problems arising from a limiting factual record do not stop there.

Justice Prosser writes in concurrence:

The circuit court concluded that the legislature should have provided public notice of the special session conference committee 24 hours in advance. The court did not acknowledge that thousands of demonstrators stormed and occupied the State Capitol within a few hours of the notice that a conference committee meeting would be held.

What Prosser does not acknowledge, or perhaps does not know, is that demonstrators only "stormed and occupied the State Capitol" after the legislative proceedings had finished, and after the heavy security restrictions in place during those proceedings had been lifted (other demonstrators also entered by circumventing the security measures). The limited, one-door access into the Capitol was maintained for around two hours after the legislative meetings concluded, until suddenly, the doors opened and people flooded inside.

Here again, the court's alleged "conservatives" are being anything but. Like a true judicial activist, Justice Prosser is adding words to the Constitution. Article IV, Section 10 says "the doors of each house shall be kept open" not "the doors of each house can be locked, as long as they are opened eventually."

Impact on Judicial Integrity

The Court here has vindicated the idea that judges cannot be trusted and are rarely impartial. For those on the right, the four-judge majority confirmed the suspicions they had held all along -- that Judge MaryAnn Sumi was a foie gras-eating liberal whose partiality should be questioned because her son has worked for labor unions. For those on the left, the Wisconsin Supreme Court's decision, rushed in response to prodding from Senate Majority Leader Scott Fitzgerald, confirmed their suspicion that the members of the Court's four-person conservative majority are tools of corporate interests and the Republican party.

As Justice Abrahamson wrote in her dissent:

A reasoned, accurate explanation is not an inconsequential nicety that this court may disregard for the sake of convenience or haste. It is the cornerstone of the legitimacy of judicial decision-making.

A court's failure to follow rules and a court's failure to provide a sufficient, forthright, and reasoned analysis undermine both the court's processes and the decision itself. Only with a reasoned, accurate analysis can a court assure the litigants and the public that a decision is made on the basis of the facts and law, free from a judge's personal ideology and free from external pressure by the executive or legislative branches, by partisan political parties, by public opinion, or by special interest groups.

*I did not go to the Capitol unaccompanied -- Hi Joleen!

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.