Attorney General JB Van Hollen is seeking to appeal last Friday's order halting implementation of Governor Walker's union-busting bill. While the trial court found that the bill's rushed passage likely violated state Open Meetings laws, the Court of Appeals is being asked to consider whether that decision conflicted with separation of powers principles.

As CMD has reported [3], on March 18 Dane County Judge Maryann Sumi found that legislators had likely violated Open Meetings laws by providing inadequate notice for the March 9 Joint Conference Committee meeting and subsequent Senate vote that amended and passed Gov. Walker's controversial bill. In making her decision, Judge Sumi noted that the law states "any actions taken at a meeting of a governmental body held in violation [of Open Meetings law] are voidable," provided that the District Attorney brings the suit and the public interest in voiding the bill outweighs any public interest in upholding it. Sumi emphasized the Constitutionally-recognized public interest in ensuring open government, stating [4] "we are entitled by law to free and open access to governmental meetings, and especially governmental meetings that lead to the resolution of very highly conflicted and controversial matters."

The Attorney General's motion to appeal [5] asks the Court of Appeals to consider several questions, the most significant being whether Judge Sumi had jurisdiction to prevent a bill from becoming law, as opposed to voiding a law once it is enacted. This is an issue of separation of powers, or whether courts can interfere with the legislative process (as well as raising questions about when a controversy is ripe for suit). In an order [6] issued March 21, the three-person Court of Appeals asked the District Attorney to prepare a brief responding to these issues by 4pm March 22. The Attorney General's motion also asserts that Secretary of State Doug LaFollette is immune from lawsuit under sovereign immunity, and that he cannot be restrained from performing a ministerial, statutory duty; that the legislators named as defendants are entitled to legislative immunity; that courts may not void legislative acts for failing to follow non-constitutional rules of process; that legislative rules, which may not have had a time requirement for notice, trump Open Meetings laws; and that a temporary restraining order may not have been the appropriate form of relief. The District Attorney has until the afternoon of Wednesday, March 23 to respond to these claims, and the Court will subsequently decide whether to grant the Attorney General's appeal.

While both chambers of the State Legislature passed the contested bill and Governor Walker has signed it, the bill does not become law until it is published by Secretary of State LaFollette. Judge Sumi's decision bars LaFollette from publication until a full hearing takes place on Tuesday, March 29; if the Court of Appeals grants the Attorney General's motion, it is expected to make a decision on whether to lift Sumi's order before that date.

Secretary of State LaFollette was the named defendant in the District Attorney's suit seeking the injunction, and is the named petitioner in the Attorney General's motion for appeal. However, LaFollette tells the Capitol Times [7] that he was not consulted before the motion was filed. LaFollette, one of the few Democratic elected officials in the Wisconsin government and the state's longest-serving constitutional officer, has stated he will abide by Judge Sumi's order. CMD will have more on this story as it develops.