Friday Surprise…or Fitzgerald’s Waterloo?

Everyone was looking forward to a relatively relaxing weekend…with Judge Sumi’s court reconvening next week, the Court of Appeals declining to intervene, and the political firestorm the Supreme Court race is in, it seemed that nothing new would happen with Act 10 of the Legislature (the “Budget Repair Bill”) as of Friday morning. As the Walker-Fitzgerald triumvirate has proven time and again – never underestimate their ability to find ways to skirt the spirit, if not the letter, of the law.

Judge Sumi’s order is very clear. The order is to restrain the Secretary of State from publishing Act 10 of The Legislature until the case is heard before the court. No appeal has reversed that decision, so under the law, regardless of where you stand politically, the function of this order is to stop the law from taking effect under the Constitution since doing so would cause irreparable harm to those affected by said law. The Wisconsin State Constitution very clearly defines how a law takes effect once passed by both Legislative bodies and signed by the Governor (as outlined here in the Wisconsin Blue Book Legislative guide, pg. 268, under “Session Laws”)  . To paraphrase, the Secretary of State must publish the law within 10 days (the date set aside by the court) in the state newspaper of record, The Wisconsin State Journal. The law takes effect the next day.  The function of the Legislative Reference Bureau is as publication for State Legislative “Wisconsin Statutes” publication and to forward the authoritative copy to the Secretary of State.

Scott Fitzgerald’s continued insistence that they can proceed as the law is now “published” is borderline delusional. As early as Friday night, Constitutional scholars weighed in on these statements . In Professor Fallone’s own words, he cannot understand the legal thinking behind this maneuver. Here is the problem – there was a great deal of thought behind this maneuver. On Greta Van Susteren (Fox News Channel) Thursday night, even though he was grilled by the host for not “re-doing” the entire process since he presumably has the majority, Fitzgerald exuded confidence in the legal system. Granted, some Republicans have shown signs of wavering, but one might conclude by the timing that he was aware of the bomb he was about to drop on Friday.  That brings us to intent. The intent of Fitzgerald’s maneuver was to circumvent the order of the Court – to prevent further execution of the law, until the legality of the nature of its passage is settled. The Legislative leadership clearly attempted to violate that order in their actions. That is contempt. This brings us to a point where other Legislators need to examine the moral and legal aspects of their “leaders.” Even Republicans who will someday face the electorate must be seriously questioning the continuance of this course. The members of both legislative bodies need to denounce this action, as it is illegal and unconstitutional. During the Assembly debate on Act 10, Peter Barca called on a vote to remove Jeff Fitzgerald from his position as Leader of the Assembly. It was denounced as a stall tactic – delaying the inevitable. Now, it appears this may be the only rational course that can begin to repair the damage done to these once-honorable bodies, where open debate is guaranteed by the Constitution they are sworn to uphold.

The Wisconsin State Constitution (scroll to page 9, Article VII, “impeachment”) outlines the procedure for impeachment. The Assembly has the power to impeach for corruption in office, or all crimes and misdemeanors. This recent action violates the Constitution and is potentially grounds for contempt. Members of the Legislature should prepare to hold impeachment hearings, as motions to show cause for contempt will very likely be filed Monday morning. It is difficult to envision a reasonable interpretation of Judge Sumi’s ruling not finding contempt in Scott Fitzgerald’s actions. If he is found in contempt, he should be impeached under Article VII. Even if he is not found guilty of contempt, he should lose his Leadership position for his willful neglect of the Document he took an oath to protect and uphold. It is time for the rest of the Legislature to stand and defend the people and Constitution they are sworn to defend. Time to see who the real leaders are in the Republican delegation…if any. And time for Mr. Fitzgerald to receive a lesson in how the Constitution really works and who he really serves.


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