Ever since Judge Sumi’s Temporary Restraining Order preventing the “Budget Repair Bill” from being enacted into law (until the hearings can determine the legality of the mechanism used to pass the law), there have been consistent and boisterous calls from Scott Fitzgerald and the GOP that the Judge has no constitutional authority to intervene, citing “separation of powers” clauses in the Constitution. In the context of this argument, the State et al. are denying any violation of law in the passage of this bill; therefore the Judge has no right to intervene in the passage of a “constitutional” piece of legislation. Their continued action in implementing this law is not only in contempt of this TRO, it is putting us on the brink of Constitutional crisis.
In his 2007 Open Meetings Law Compliance Guide, JB Van Hollen gives a very clear opinion from the Attorney General on governmental conduct to comply with this law. It would seem he has forgotten his own opinion. On pg. 10 of the opinion (page 15 of the document), he explains that proper meeting notice must be given to the public and media in regard to “time, date, place, and subject” of the meeting. In Section 2, page 12-13 (pg. 17 of the document), the time of notice clause is explained – important as this is at the heart of the controversy. Here is the verbatim excerpt:
3. Time of notice
The provision in Wis. Stat. § 19.84(3) requires that every public notice of a meeting be given at least twenty-four hours in advance of the meeting, unless “for good cause” such notice is “impossible or impractical.”
If “good cause” exists, the notice should be given as soon as possible and must be given at least two hours in advance of the meeting. Wis. Stat. § 19.84(3).
No Wisconsin court decisions or Attorney General opinions discuss what constitutes “good cause” to provide less than twenty-four-hour notice of a meeting. This provision, like all other provisions of the open meetings law, must be construed in favor of providing the public with the fullest and most complete information about governmental affairs as is compatible with the conduct of governmental business. Wis. Stat. § 19.81(1) and (4). If there is any doubt whether “good cause” exists, the governmental body should provide the full twenty-four-hour notice.
The significance of this opinion demonstrates that by the AGs own opinion, the Open Meetings Law was violated – further, there is reason to believe that Walker and Fitzgerald are aware of this opinion. As blogged earlier, there is certainly cause for contempt here, but more disturbing is the continuation of law implementation by the Executive Branch. The Separation of powers, as outlined by the link above to the Legislative Reference Bureau’s own guide to the subject, is what we all know it to be – a check and balance against one branch of power exercising too much power over another, or THE PEOPLE. Under the section regarding the Judiciary, the LRB Guide paraphrases the Constitutional Duty of the Judicial Branch:
“The judiciary can moderate the powers of the other branches. It can declare that acts of the legislature (statutes) violate the constitution, and it can rule that the executive branch has broken the law.”
This section also explains :
“Courts have inherent authority to incarcerate any person who disobeys a lawful court order.”
We do not have separation of powers to allow one branch of Government to have free reign over the people (or the other two constitutional branches) as Scott Fitzgerald would have us believe. We have separation of powers to assure the prevention of illegal and unconstitutional actions by one of the other branches; also to prevent one branch from consolidating too much power. The Executive and Legislative Branches in this case are clearly violating the law in two separate actions – violation of Open Meetings Law in passage of the bill, and now acting in Contempt to further execution of the “law.” Judge Sumi is well within her authority to slow down this process until the legality of the law is confirmed or denied. The Legislature would be well within their authority to reconvene and pass the bill with proper notice. The issue is the denial and contempt of the Governor and Legislative Leadership towards a co-equal branch of Government. They are putting us in the situation of Consititutional crisis by their actions. If the Judicial is ignored in deciding the legality or Constitutionality of Legislation, there is nothing preventing a complete authoritarian take over of the state. Judge Sumi may very well find the Defendants in Contempt – but what is the relief of this decision if they choose to continue implementing this law? As this is decided in Court, people’s paychecks are being altered, and there are huge financial and social repercussions to this action. It could take years to remedy these actions – pending the outcome of lawsuits and elections. Meanwhile, Scott Walker and Scott Fitzgerald have taken us to the depths of a crisis – completely invalidiating one branch of our constitutional government as a means to their own arrogant end. Who will stand to enforce the Constitutional Authority of the Court? Are there any Republican Legislators left with a moral compass? I envision Sheriff Dave Mahoney going to Scott Fitzgerald’s house or the Capitol to compel him to appear, to face contempt charges in Sumi’s Court. I envision the illegality of his actions leading to his impeachment and Scott Walker’s recall. I envision the Supreme Court striking this law down as being conceived and passed unconstitutionally – with the Republicans no longer having the votes to pass it again. That is my eternal optimism and belief in justice prevailing. In the middle of this crisis, we can only continue to make our voices heard, rally, vote, and never give up. One more day.