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All in a Day's Work® - Insights on Labor & Employment Law

No notice – no law: Wisconsin state workers’ collective bargaining restored, for now

In a much-anticipated decision issued this morning, Dane County Circuit Court Judge Maryann Sumi ruled that a legislative conference committee violated the Wisconsin Open Meetings Law when it acted to amend the so-called Budget Repair Bill without proper notice on March 9, 2011.  (Judge Sumi’s decision can be read here and the findings of fact, conclusions of law and judgment can be read here.)  The Budget Repair Bill, later known as 2011 Wisconsin Act 10, strips away most public employee rights to collectively bargain.

The ruling is not much of a surprise.  Judge Sumi had previously issued a restraining order in the case to give her time to consider the arguments of the parties.

The case was brought by Dane County District Attorney Ismael Ozanne, claiming that Republican legislative leaders had not given proper notice to the public in convening a conference committee of lawmakers from both houses to remove fiscal elements from the Budget Repair Bill.  The law requires 24-hours notice, or two-hours notice if “good cause” is established. 

In her decision, Judge Sumi ruled that neither standard was met.  Consequently, Judge Sumi ruled that the legislative committee violated Wisconsin’s Open Meetings Law.  In a carefully worded opinion, Sumi stated:

"It is not the court’s business to determine whether 2011 Wisconsin Act 10 is good public policy or bad public policy. . . . It is this court’s responsibility, however, to apply the rule of law to the facts before it."

Sumi’s decision addresses the process by which the legislature passed the law.  Sumi added:

"Our form of government depends on citizens’ trust and confidence in the process by which our elected officials make laws, at all levels of government."

What’s next?  It is almost certain that Judge Sumi’s decision will be appealed.  The Wisconsin Supreme Court is set to hear oral arguments on June 6, 2011, on the question of whether it will take the case or not.  It has also been suggested that the collective bargaining provisions of the newly invalidated Act 10 will be inserted into the biennial budget bill.  That bill is likely to be considered in June before any recall elections are held.  Whether the votes are there to pass that bill remains to be seen. Judge Sumi’s decision invalidating a legislative action also raises significant separation-of-powers issues.  Stay tuned for more information as further developments occur.

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