• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • Justice Wins Out in Wisconsin on New Labor Law

    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.

    Posted in Ongoing Priorities [slideshow_deploy]

    15 Responses to Justice Wins Out in Wisconsin on New Labor Law

    1. George Colgrove, VA says:

      We need more of these wins!

    2. Sandra says:

      I am a Wisconsinite. God bless Governor Walker and our senators and assemblymen for moving this state in the right direction. And special thanks to the Wisconsin Supreme Court for striking down an unlawful ruling of Dane County Judge, Mary Ann Sumi, who clearly overstepped her authority. After years of overspending, robbing Peter to pay Paul, and being in the red, the state will be in the black…with a surplus. Wisconsin is open for business!

    3. Lynn Chicago says:

      Congratulations to Scott Walker and the rest of the Wisconsin republicans for being very courageous and hanging on through overwhelming odds, including a corrupt judge! You stood up for the people, something that we are in short supply of. Proud to be your neighbor in Illinois. Chalk one up for the good guys!

    4. Lynn Chicago says:

      Thrilled with this eventual outcome! So worth the fight!

    5. Kent Hamele, Brookly says:

      More of these wins? "We" must exclude anyone who works in a public service job. The destruction of unions, public and private, is an important first step in the establishment of fascism. It goes hand-in-hand with suppression or control of the media, which the U.S. Supreme Court has given us through the Citizens United decision.

      Three of the concurring justices on the Wisconsin Supreme Court (Ziegler, Gableman and Prosser) are bought-and-paid-for judicial activists working on behalf of Wisconsin Manufacturers and Commerce (WMC) and the Koch-funded Americans for Prosperity, among others. There is language in the bill in question that will allow Scott Walker to sell public property (generating plants, etc.) to private sector enterprises to which he is beholden via no-bid contracts, so calling this a "labor law" is a complete misnomer. It is an attack on working people and the democratic process in Wisconsin, and an illegitimate power and money grab.

      It is important to remember that state employees had already agreed to significant benefit cuts before this law was ever brought before the legislature.

      It is also important to note that the damage this ruling does to Wisconsin's open meetings law is permanent and assures that there will be no need to litigate in future, because there will be no required public access to the process and no accountability.

      Ayn Rand: "The question isn't who is going to let me; it's who is going to stop me." Indeed. We'll see who is going to stop this assault; a lot of us here in Wisconsin are determined to try.

      • Guest says:

        Kent, go complain to your union rep. He is the only one in this state that will care, other than your coworkers. I pay $5000 a year in insurance premiums and I have a $10,000 deductible, why, I am paying for your health care. You make way more than you are worth and your benefits are basically criminal.

    6. Pingback: Collective bargaining law takes effect June 29 – Milwaukee Journal Sentinel | Law Advice

    7. truthseeker says:

      Not ago, you had titled the US Supreme Court an activist court. You didn't like fair decisions. Well you can not apply that Supreme Court's title to Wisconsin…ACTIVIST! They chose to ignore the actual violation of the open meetings law and instead created a law of their own to give a bad decision to Walker. And you boy will be gone before the net election, as he will be recalled!

    8. Mad-Max says:

      I don't agree with the outcome our the process. Conservatives have done nothing but hurt themselves. When you attack and undermind the rights of the people, you attack the rights of all people. Big mistake.


      Read “Common Sense 3.1” at ( http://www.revolution2.osixs.org )

      “Spread the News”

    9. Jeff, Chicago says:

      What a travesty!

      Let's see, we have "Bill" ramming . .

      We have State Supreme Court election / voting irregularities . .

      We have Koch brother allegiance . .

      We have Union worker criminalization . .

      We have voting law disenfranchising . .

      We have Recall Ballot disparity / fraud . . ( mischaracterizing recall ballots as re-election calls and using other tactics )

      We have fake recall Primary candidate running . . ( as a confusion / delay tactic )

      Hopefully, justice will ultimately prevail inspite of the GOP's attempt to drive it's corporatist agenda . .

    10. Jon New Mexico says:

      Chalk one up for America!!

    11. Kurt, Maryland says:

      Sumi should be removed from the bench. She clearly isn't an impartial judge. It also appears that she lacks the fundamental knowledge needed in order to judge cases. If she didn't have the knowledge beforehand, she shouldn't have ruled as she did.

    12. Pingback: Morning Bell: Victory in Wisconsin, but the Fight Goes On | The Foundry

    13. Jeff, Illinois says:

      The losers in the battle so far are those who thought they lived in a democracy rather than a plutocracy. The Koch brothers control Wisconsin politics and every maneuver of the GOP is for their interest first and foremost. And what's really amazing is how many of the middle class are willing to vote against their own interest because they've signed up for the religion of GOP propaganda.

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.