There's been a great deal of debate since Judge MaryAnn Sumi issued her final ruling that the passage of Act 10 (which strips public employees of almost all collective bargaining rights) was unconstitutional because it violated the state's Open Meetings Law.
Those opposed to the content of the law itself naturally rejoiced at the decision, and many of those in favor of the bill's provisions were, of course, dismayed.
But, unlike those understandable emotional responses, the legal challenges now being filed by the Department of Justice on behalf of the Walker Administration are simply baffling:
State attorneys asked the Wisconsin Supreme Court on Friday to immediately vacate a Madison judge's decision striking down Republican Gov. Scott Walker's contentious collective bargaining law.
The state Justice Department is representing the Republicans. The agency's attorneys asked the state Supreme Court to take the case and the court set oral arguments on whether it should make a move for June 6. Deputy Attorney General Kevin St. John said in a letter to the justices late Friday they need to act now.
First and foremost, "The state Justice Department is representing the Republicans" tells you everything you need to know about the current hyper-partisan bent of our DOJ under Attorney General JB Van Hollen. I'd always thought the DOJ was supposed to represent the state-i.e. the people of Wisconsin-and not just whatever party happens to be in power at the moment.
Instead, and especially since Gov. Walker took office, Van Hollen and friends have leaned hard to the right, refusing to defend the state's domestic partner registry, chasing the imaginary bogeyman of voter fraud, etc. and now this, too.
What reason is the DOJ giving for asking that Sumi's decision be invalidated?
[St. John] argued Sumi issued the decision on her own, even though no one involved in the case had asked for such a ruling. She didn't give any of the parties a chance to be heard on the final disposition.
He also reiterated the Justice Department's argument that the Republicans can't be sued because they enjoy legislative immunity and Sumi can't invalidate the law due to an open meetings violation.
Sumi's ruling explains with great clarity why her court had the authority to make it, though:
It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements. The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements. Legislative proceedings are not exempted from the requirements of the Open Meetings Law. Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities. The evidence at trial demonstrated that the March 9, 2011 meeting did not comply with the Open Meetings Law. The Open Meetings Law authorizes the court to void actions undertaken in violation of the law's terms, where the court finds that the public interest does not counsel in favor of sustaining the action. There is no public interest in favor of sustaining the act taken here, especially since the provisions of 2011 Wisconsin Act 10 can easily be re-enacted by the legislature if it so wishes (provided that any legislative re-enactment complies with the requirements of the Open Meetings Law).
Basically, Sumi wasn't ruling on the merit or constitutionality of the content of the law passed, but rather on the manner in which it was passed. It's a crucial distinction, and the one that, I believe, gave DA Ozanne standing to file the suit in the first place and the court's jurisdiction to rule on it.
The Open Meetings Law was pretty specifically designed to prevent things like what happened on March 9 in the interest of preserving open government for the benefit of the people it represents. Had the Democrats pulled a similar stunt I would expect a similar ruling.
As for the claim of legislative immunity it doesn't make a lick of sense that the very body charged with creating laws should be immune from them itself. And if the Legislature isn't bound to obey the law then why should we expect it of any other governmental body? That seems like a very slippery slope, indeed.
So what's really going on here? Friend of the blog Tom Foley (aka Illusory Tenant) puts it bluntly:
I don't know why those Republicans and their supporters in this grave matter don't just come out and say what their objective is: It is having the Wisconsin Supreme Court declare the Open Meetings Law - which guarantees reasonable public access to government - unconstitutional.
That's the takeaway, as they say. That's the real story.
Indeed, it would fit into the larger, longer term strategy already being enacted by the current Republican Party leadership in the state to close off government to everyone but themselves and their friends. Look no further than the recently passed Voter ID law for another example of this, and keep an eye on the redistricting process for it, too.
And be prepared to be patient, be organized, and be disciplined in the response because sorting this mess isn't going to happen overnight. These folks are in it for the long haul, and any opposition has to be, too.
Kapanke is counting on us counting sheep come Election Day
Recall target Sen. Dan Kapanke was caught on tape speaking to La Crosse County Republicans last week saying what I'm sure a lot of GOP politicians and supporters are thinking right now:
"We've got tons of government workers in my district - tons. From La Crosse to Prairie du Chien and to Viroqua and to Ontario and to Hillsboro, you can go on and on and on. We have to overcome that. We gotta hope that they, kind of, are sleeping on July 12th - or whenever the (election) date is."
Seems like wishful thinking, of course, given just how riled up those state workers have gotten since Walker's full frontal assault on them began. And not just public employees, either Kapanke and the other Republican senators should be worried about all of their fellow unionists in the private sector, as well as non-union supporters. They turned out in the hundreds of thousands at the state capitol over the course of February and March, after all.
Something tells me that wake-up call won't have worn off by July 12.
The return to Walkerville
There are plans to set up a new "Walkerville" encampment around the Capitol starting this Saturday evening. The original sprung up as a spontaneous response to the initial lockdown of the building back in March. Then, people slept on the steps, in freezing temperatures, in nothing but sleeping bags to protest what was going on inside. This time the camp seems to be in response to the likelihood that the collective bargaining provisions will be inserted into the budget to be debated and passed in the coming weeks. They're also hoping to set up a booth to disseminate information about Walker's tactics to passersby.
I'm glad to see that the organizers have applied for an official city permit to do this, giving everyone a chance to work out the best possible scenario to balance free speech with free access to the areas around the Capitol since this time they're planning to camp on the terraces around the building and there are some legitimate concerns about impeding the flow of traffic to surrounding businesses.
I'm a fan of non-violent direct action. Sustained, non-violent movements that directly challenge an unjust status quo are historically what see the most real progress made over time. These sorts of mass actions can be part of that kind of larger movement but I feel compelled to make the plea that those involved stick tight to the non-violent (and non-dickish) ethos.
Those on the other side of the issue are constantly looking for ways to delegitimize the movement in the eyes of middle-of-the-road voters. Obstructing businesses that have nothing to do with the protest would play right into their hands, as would physical or serious verbal harassment of people with whom you disagree.
It's crucial to plan for several eventualities: that people less interested in the cause than they are in themselves are likely to show up and latch on to big public protests like this and there should be methods in place for identifying and redirecting them, and that you have to be ready should not all of your initial goals be met. For instance, focus on the recall elections as a way to flip the Senate is important, but there should also be plans in place to keep up momentum in the case that that doesn't happen.
This is a crucial moment in what is still a fledgling movement it's time to focus everyone on the long haul. Democracy is, after all, a long-term commitment.