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COMMENTARY: Majority opinion language sounds like a smackdown for Sumi ruling

By   /   June 15, 2011  /   No Comments

Supreme Court vindicates Walker and Wisconsin Republicans

By Kevin J. Binversie

This ruling is the judicial equivalent of a smackdown: Obviously nobody violated state open meetings law in passing the collective bargaining bill, and even if they did, the judge had no power to delay it.

After a three-month legal delay, victory at last for Gov. Scott Walker. With a 4-3 ruling, the state Supreme Court overturned Dane County Circuit Judge Maryann Sumi’s decision.

Sumi, to the delight of public employee unions and Democrats, had placed the collective bargaining bill in limbo saying legislative Republicans violated opening meetings law. The majority’s ruling concluded Sumi had overstepped her bounds, ignored legal precedence, ignored the very rules the legislature writes for itself and violated the separation of powers by invalidating the law.

Possibly even more telling, all seven justices appear to agree Judge Sumi ignored the 1943 case Goodland v. Zimmerman stating a circuit court has no power to delay publication of a law. Not once in the minority dissent do they argue Sumi had the power to do what she did in March.

Most legal scholars sought for comment so far see the court’s 4-3 ruling as more of a statement on which justices wanted to rule immediately and which ones did not and were demanding more time to rule.

The majority’s ruling is not kind to Sumi on open records. Here’s an example, from the opinion written by Justice David Prosser:

¶58 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.

¶59 The circuit court found that 20 seats were set aside for the public in the Senate Parlor, but it did not report that the entire proceedings were broadcast on WisconsinEye and events were observed online by Wisconsin state senators in Illinois.

¶60 The circuit court determined that the Senate Parlor did not provide adequate public access under Wis. Stat. § 19.87(3), but it overlooked the fact that conference committees on state budgets routinely met in the Senate and Assembly Parlors until the State Capitol was renovated in the 1990s.

¶61 The circuit court voided 2011 Wisconsin Act 10 on the basis of a committee meeting that lasted less than five minutes——in a room packed with reporters and television cameras. This reality was captured on television and in photographs, one of which appeared on the front page of the Wisconsin State Journal on March 10, 2011 (see attached).


Not only was Sumi smacked down, but Prosser does it by mentioning such new technological breakthroughs like WisconsinEye, the C-SPAN-like service which doesn’t just air their feed on local television stations, but streams it online. It makes one wonder what sort of legal definition will come forth to describe a “public open meeting.” We do after all, live in a world where a citizen can just click an Internet link and watch the local school board from the comfort of their own home.

This won’t be the end of legal challenges to the collective bargaining law in Wisconsin. It only ends challenges to the state’s opening meeting law and the procedures used to pass the law. Other lawsuits are in the works, filed by the public employee unions, to have to law declared unconstitutional.

We may have ended one legal fight, but others are right around the corner. Wisconsinites craving a return to fiscal sanity will have to remain as vigilant as ever in the weeks and months ahead.

Kevin J. Binversie is a Wisconsin native who has been blogging on the state’s political culture for more than eight years. He has served in the George W. Bush administration from 2007-2009, worked at the Heritage Foundation and has worked on numerous Wisconsin Republican campaigns in various capacities, most recently as research director for Ron Johnson for Senate. Contact him at [email protected]