I watched about 40 minutes of Monday's state Supreme Court hearing, in which the state was appealing the circuit court ruling that the legislature had violated the open meetings law when it passed the collective bargaining bill by conference committee in March.
What struck me most about the hearing was how elementary the dialogue was between the judges and the attorneys. Were the judges actually seeking answers to these questions, and were those answers really what law students go $100,000 in debt to understand?
It seemed almost (gasp) political. I guess that's what we should expect from elected judges.
Justice Ann Walsh Bradley engaged Assistant Attorney General Kevin St. John in a protracted debate about the meaning of the provision of the constitution that states "the doors of each house [of the legislature] shall be kept open."
If the doors were locked, she asked, how could the meeting of the conference committee not be a constitutional violation? St. John gave a reasonable response: There are only so many people who can fit into a meeting room, and "open doors" could be interpreted to mean "not in secret," rather than literally unlocked doors.
Michael Gableman implied that if the court were able to halt laws from being published, it could halt them from being introduced. "Where does it stop?" he asked.
That looks like a slippery slope fallacy to me, Mike. There is a fundamental difference between a court ruling that the legislature acted illegally and a court acting to prevent the legislature from acting illegally or unconstitutionally.
As for the notion that the court should not be able to rule on the open meetings law -- why not? It is statute, isn't it? The argument, as Prof. Richard Esenberg sees it, is that the high court has traditionally been reluctant to challenge laws based on the process by which they are passed. For the court to strike down a law because the legislature failed to comply with "legislatively prescribed formalities" threatens the separation of powers.
That may be precedent, but it's a pretty lame excuse for illegal government action. The open meetings law is not merely a formality or an in-house rule. It is state statute that is supposed to govern all meetings of all governmental entities, except for in specific circumstances.
Another excuse Republicans are making is based on this rumor that has been circulating on the web and which I previously fell prey to that Senate rules exempt conference committees from public notice requirements. In fact, what Senate Rule 93 really states is that in the case of an extended, special or extraordinary session, "no notice of hearing before a committee shall be required other than posting on the legislative bulletin board."
Regardless Why should Senate rules govern conference committee hearings? What about Assembly rules? It wouldn't be that strange for the upper house to make the rules regarding joint committees, but as far as I know, the Senate does not currently have that power.
And even if the committee hearing does not require public notice, what about the Senate session that immediately followed it? Does it not require any public notice either?
Ultimately, I think the court needs to decide whether internal legislative rules have the power of statute, and whether the constitutional prerogative the legislature has to set its own rules implies that it will abide by them.
If the court finds that violations of the open meetings law can not invalidate a piece of legislation, then it is sending the signal that the legislature never needs to abide by the law in the first place. If that is the case, then the constitution must be amended to make sure the legislature is held to the same open meetings standards as all other public bodies.