In approving Wisconsin’s new collective bargaining law yesterday, the Wisconsin Supreme Court dropped an anvil on Dane County Judge MaryAnn Sumi’s political rulings. The state Supreme Court vacated all of Sumi’s orders against Wisconsin’s new labor law, declaring them void ab initio or invalid from the inception. This avoids the need for Wisconsin legislators to hold another vote on the bill. It is a victory not only for the soundness of the underlying legislative process but also for the rule of law against activist judges who ignore the separation of powers between the legislative and judicial branches and make up their own law from the bench.
Sumi had issued restraining orders that prevented the law from being published and going into effect, claiming that the legislature’s passage had violated the state’s open meeting law. The Wisconsin Department of Justice, headed by Attorney General J.B. Van Hollen, had not only appealed Sumi’s orders, but had also filed an original petition with the Supreme Court arguing that Sumi was acting beyond her authority and interfering with the legislature’s duties as the lawmakers of the state of Wisconsin.
The Wisconsin Supreme Court agreed, stating that Sumi had “usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.” In fact, the Supreme Court pointed out that one of its prior decisions from 1943 that specifically outlined the division of governmental powers between the legislative, executive, and judicial branches of government was directly on point to the present controversy. In that 1943 case, the Court concluded that the “judicial department has no jurisdiction or right to interfere with the legislative process. That is something committed by the constitution entirely to the legislature itself.” Further, the Court specifically wrote in 1943 that a court could not intervene and prohibit the publication of a new law passed by the legislature because that would mean that it would be the court determining “what shall be law and not the legislature.” Yet Judge Sumi summarily dismissed this prior precedent.
The Court also dismissed two other false claims that had been made by unions and Democrats protesting the new collective bargaining law, claims that had been accepted without question by Sumi. The Court held that the legislature had not violated a section of the Wisconsin Constitution that requires the “doors of each house” to be kept open “except when the public welfare shall require secrecy.” According to the Court, “the doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act,” as was the senate parlor where the joint committee on conference met. WisconsinEye, the state’s local version of CSPAN, had even broadcast all of the proceedings live. These were inconvenient facts that Judge Sumi had ignored. The Court concluded that there is no constitutional requirement that access be provided “to as many members of the public as wish to attend meetings.”
Finally, the Court held that the legislature had not violated the state’s open meeting law when the joint committee on conference met. Sumi had claimed that the law required 24-hours notice of the meeting. But it was undisputed that the legislature had posted notices of the meeting one hour and 50 minutes before its start in compliance with its own, internal procedural rules. The Court declined to “review the validity of the procedure used to give notice” since that would require the Court to “intermeddle” in “purely legislative concerns.” Relying on another precedent from 1983, the Court made it clear that it would “not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments” unless there was a “constitutional directive to the contrary.” That holding is grounded in basic “separation of powers” principles. Once again, Sumi ignored prior Wisconsin Supreme Court precedent directly on point and seemingly has no understanding of basic separation of powers principles that prevent the judicial branch from interfering with the internal operating procedures of the legislature. That or she does not accept such principles as a limitation on the powers of the judiciary.
Attorney General Van Hollen deserves a great deal of credit for, as Professor William A. Jacobson of Cornell Law School has said, “not backing down to the unjust, unwise, uncalled-for, unlawful rulings of Judge Sumi, who engaged in clearly unsound legal reasoning which – whether intended or not – took on the appearance of political posturing.” In fact, Sumi should have recused herself from the case to avoid the appearance of bias. Her son is a former lead field manager with the AFL-CIO and data manager for the SEIU State Council, two unions that not only represent public employees in Wisconsin but were instrumental in organizing protests against the passage of the collective bargaining law.
One of the final paragraphs of the Wisconsin Supreme Court’s order aptlys describes the role of judges, and posits a rule that too many activist, imperial judges do not follow when they set themselves up as superlegislators:
The court’s decision on the matter now presented is grounded in separation of powers principles. It is not affected by the wisdom or lack thereof evidenced in the Act. Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts. The court’s task…is limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act. We conclude that the legislature did not violate the Wisconsin Constitution by the process it used.