More Time for Transition?
The Impact Of The Dane County Circuit Court Decision Enjoining Implementation Of The Budget Repair Bill
Late this past week, the Dane County District Attorney filed a complaint against several legislators and the Secretary of State seeking to prohibit further implementation of the Budget Repair Bill (BRB) because of alleged violations of Wisconsin’s Open Meetings Law related to the BRB’s passage. On March 18, 2011, Dane County Circuit Court Judge Maryann Sumi issued an order temporarily enjoining further implementation of the BRB until further order of her court. The injunction prohibiting implementation stays in place until such time as the court may hear evidence and argument on the Dane County District Attorney’s request for a preliminary injunction further enjoining enforcement of the BRB. The injunction hearing is scheduled to commence on March 29, 2011. The Attorney General, who defended the claim on behalf of the legislators, has expressed his intent to appeal the decision. As of the date of this article, however, no appeal has been filed.
The initial impact of the decision cannot be questioned. At least for the short term, the implementation of the BRB has been placed on hold. The more difficult question is the long term impact of the court’s decision on the future of the BRB and, more particularly, the transition planning of local governments for life in the post-BRB world. The purpose of this article is to evaluate Judge Sumi’s decision and to provide guidance to local governments in addressing the impact of the decision on a going forward basis.
A. The Decision
It is as important to understand what Judge Sumi’s decision is not, as opposed to what it is. The decision is not an indictment of the BRB. Judge Sumi did not rule against the BRB on its merits or the authority of the legislature to enact the BRB. In her decision, the Judge specifically commented that “I want to make clear that I make no judgment, nor would my judgment on the merits of 2011 Wisconsin Act 10, be relevant. A Court does not determine whether the Legislature acted wisely or did not act wisely.”
Judge Sumi likewise did not preclude the legislature from enacting the BRB into law. Rather, the decision enjoins the enactment of the BRB under the present circumstances which, in Judge Sumi’s opinion, involve violations of the Open Meetings Law. The legislators have options available to address this finding. They can appeal the Judge’s decision, as the Attorney General has expressed his intent to do on their behalf. The legislature also has the option of curing the purported notice defect and passing the legislation with what the Circuit Court has deemed proper notice.
What will occur is difficult to predict, particularly considering the brevity and lack of detail in Judge Sumi’s decision. It is very obvious from her decision that Judge Sumi believes that the legislature violated the Open Meetings Law and that she believes such a violation may ultimately support a permanent injunction voiding the actions taken by the legislature in enacting the BRB and barring its implementation altogether. In this regard, Judge Sumi found that the Dane County District Attorney had demonstrated a probability of success on the merits that an Open Meetings violation occurred and that irreparable harm would result from allowing Act 10 to become law through publication. In so doing, Judge Sumi noted that “the public policy behind effective enforcement of the Open Meetings Law is so strong that it does outweigh the interest, at least at this time, that may exist in favor of sustaining the validity of the action taken” by the legislature in enacting the BRB. Judge Sumi further found that there was no adequate remedy at law and that there was a need to maintain the status quo by enjoining publication of the BRB, thereby precluding the BRB from becoming enforceable. It is doubtful, in light of the apparent of her findings in the decision, that Judge Sumi will reverse direction on these issues after further hearing.
However, in reaching her decision, Judge Sumi failed to specifically address or even evaluate the exceptions to notice requirements in the Open Meetings Law which were raised by the Attorney General. In fact, Judge Sumi did not address many of the defenses to the claim that the Attorney General raised. Whether the exceptions to the Open Meetings Law apply or whether the Attorney General’s defenses are valid will likely be addressed at the Court of Appeals or possibly Supreme Court.
At this point, it is unclear whether the Court of Appeals will entertain an appeal of Judge Sumi’s decision temporarily enjoining the enactment of the BRB. The Court of Appeals has discretion to decline review of Judge Sumi’s decision on the temporary restraining order until after she issues a final issue and judgment with respect to the Dane County District Attorney’s petition to enjoin enforcement of the BRB.
B. Where To Go From Here: Keep Planning For The Transition
No matter what occurs in the courts, it appears unlikely that there will be any substantial changes in the BRB and that the legislation will likely be passed in a form substantially similar to that contained in Act 10. Governor Walker continues to have the votes in the legislature to pass the BRB if further action needs to be taken in light of the Open Meetings Law notice objections which have been raised. There is nothing in Judge Sumi’s decision which undercuts the merits of the BRB or the legislature’s ability to enact it.
In light of the likely passage of the legislation, it is our recommendation that local governments continue to move forward with their preparations for the post-BRB world. Local governments should take the additional time that has been provided by virtue of Judge Sumi’s decision to appoint a Transition Committee and to begin to develop transitional work rules and policies which will govern general municipal employees. If anything, local governments should view Judge Sumi’s decision as an opportunity to more thoroughly plan for and implement the initial steps of the transition and to ensure that they are better situated to respond and implement the BRB once it is ultimately enacted into law.