Court of Appeals Certifies Budget Repair Bill (ACT 10) Injunction Questions to the Wisconsin Supreme Court and Legislature Reference Bureau Publishes the BRB
A. The Court Of Appeals Certification
On March 24, 2011, the District IV Court of Appeals declined the Attorney General’s request to stay Dane County Circuit Court Judge Sumi’s Temporary Restraining Order (TRO) which blocked the Secretary of State from publishing the Budget Repair Bill (BRB) on March 25, 2011 and prevented the BRB from becoming law. The Attorney General had filed a petition for leave to appeal Judge Sumi’s decision to issue the TRO which requested an order staying the TRO pending disposition of his petition for leave to appeal so that he could proceed to publish the Act on March 25, 2011.
Rather than resolving the issues raised in the Attorney General’s petition, the Court of Appeals requested the Supreme Court to weigh in on the issues relating to alleged violations of the Open Meetings Law by the legislature and the ability of the judicial branch to void legislation based on such violations. The Court of Appeals made the request pursuant to a procedure which allows the court to certify matters to the Supreme Court in “appeals raising issues which [the Supreme Court] might otherwise ultimately consider on a petition for review, in order to reduce the burden and expense of the appellate process on both the parties and the judicial system.” Certification at p. 8.
The Court of Appeals determined that the Supreme Court should decide the following issues, which, according to the Court, would resolve the questions surrounding Judge Sumi’s authority to block publication of the BRB :
1. whether striking down a legislative act—also known as voiding—is an available remedy for an alleged violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so,
2. whether a court has the authority to enjoin the Secretary of State’s publication
of an act before it becomes law.
The Court of Appeals noted that the Supreme Court could also address and decide the case based on various other issues raised in the Attorney General’s appeal, including the Attorney General’s arguments that Judge Sumi’s actions should be overturned because:
1. the secretary of state is immune from suit;
2. there was no violation of the Open Meetings Law because conflicting legislative rules for notice took precedence over the requirements of the Open Meetings Law;
3. even if there was a violation of the Open Meetings Law, the remedy would be limited to voiding the actions of the legislative committee and senate who committed the alleged violations, and could not reach subsequent actions by the assembly, governor or secretary of state; and
4. the circuit court failed to properly consider the irreparable harm to the State which will be caused if the BRB does not become law.
The Supreme Court must now decide whether to accept the Court of Appeals’ certification. It will take an affirmative vote of four (4) or members of the Supreme Court to accept certification. If it accepts certification, the Supreme Court may order additional briefing or oral argument. The Supreme Court may also issue a decision without further briefing or argument. There is no specific deadline for the Supreme Court to act on the certification. If the Supreme Court accepts the case, it will take jurisdiction of all of these issues, not merely the issues that the Court of Appeals certified. See Milwaukee Journal Sentinel v. Wisconsin Dept. of Admin., 319 Wis. 2d 439 (2009).
The Court of Appeals’ certification has the practical effect of continuing Judge Sumi’s temporary restraining order prohibiting publication of Act 10. Interestingly, the Court of Appeals did not stay the March 29, 2011 hearing scheduled before Judge Sumi to hear evidence on the Dane County District Attorney’s request for a preliminary injunction to further block publication of the Act until such time as the case is finally decided on the merits. The preliminary injunction hearing remains on Judge Sumi’s calendar, although it is unclear whether she will proceed with the hearing in anticipation of a decision from the Court of Appeals and/or Wisconsin Supreme Court.
B. Publication of the BRB By The Legislative Reference Bureau
Notwithstanding Judge Sumi’s order blocking the Secretary of State from publishing the BRB, the Legislative Reference Bureau (“LRB”) published the BRB on March 25, 2011. The Wisconsin Department of Administration (DOA) indicated that LRB’s actions constitute a lawful publication of the BRB and, as a result, has begun the process of implementing the law. DOA Secretary Mike Huebsch said in a written statement: “Upon the advice of my legal counsel, the Department of Administration will begin the process of implementing (the BRB) as we are required to do the day after a bill is lawfully published. We are mindful that this Act is continuing to be litigated and we will continue to be responsive to the courts as the law begins to be applied.” The Secretary of State disagrees with the DOA and has argued that the BRB cannot become law until it is published by his office.
It is anticipated that the impact of the LRB’s publication of the BRB will quickly become the subject of additional litigation. It is expected that one or more actions will be filed in the coming week to enjoin the DOA from implementing the law.