As you probably know by now, the status of the publication/legality of the new collective bargaining law, aka Wisconsin Act 10, remains, like so many things since February 11th, in limbo. Now it’s true that I’m no scholar of constitutional law, much less the enforceable actualities inherent in that august screed called the website of the Legislative Reference Bureau, but here’s what’s at play, in a nutshell: More or less on behalf of Minority Leader of the State Assembly, Peter Barca, Dane County District Attorney Ismael Ozanne is suing Majority Leader of the State Assembly Jeff Fitzgerald et al. over violating the open meetings law. Related to this is Secretary of State, Doug La Follette, who is responsible for setting the date for all Wisconsin laws to be published in the state newspaper, The Wisconsin State Journal, who delayed this last step until March 25, 2011. Before that, however, Circuit Court Judge Maryann Sumi issued a temporary restraining order blocking the bill from being published until further testimony regarding the open meetings law could be heard. So far, so good? OK, here’s where the Shakespearean elements come in from the wings: citing immunity while the State Legislature is in session, none of the Republicans need appear at court. La Follette, being a state employee, was represented by the Department of Justice, as is standard operating procedure — in this case Maria Lazar, assistant Attorney General who (along with Steven Means) you might remember from such legalese classics as “Why Our Capitol Needs to Be Closed Off to the Public” and “What Do You Mean the DOA Favors Fox News?” only a few weeks ago. But hang on for just a second, you’re probably thinking, didn’t the DOJ, most notably Attorney General JB Van Hollen himself, say that Circuit Court Judge Maryann Sumi lacked the authority to weigh in on this legislative matter? (More on this elsewhere.) So how can the Sec. of State, who disagrees with the misbegotten bastard bill-law and is on record as not allowing it to be published while there remains in effect a temporary restraining order, be represented in court by the DOJ who (a) believes the matter is established law by fiat of having been published on the LRB’s website and (b) doesn’t really think the Judge has the jurisdiction to opine on this in the first place? Great questions all around! Hence the emphasized “was represented” (above) because after much frustration and apparent conflict of interest, Judge Sumi ordered that he be represented by his own attorney, not the DOJ.
In other words, it all boils down to this:
…if a duck makes a sound that sounds like a quack, like ducks do, then said sound will constitute a quack, unless said sound, however quack-like in nature its timbre, is so perceived and thereby rendered as perhaps a quock or a queck, but not a quick or a quake, then it shall forthwith carry the full effect of promulgated quackery, provided that the quack, as heretofore concomitant with all foul utterances, or such sounds as consistent with quacks notwithstanding quocks or quecks, was derived from a duck and only a duck and carried the resultant force as only could be produced from a quacking duck as established by and in full compliance with duck quack ordinance with or without respect and all due deference to quicks and quakes. That is to say, on an even day of an odd month, excepting all Wednesdays unless said Wednesday falls in a February of a leap year calendar, only on a sunny day, unless the hour is post-noon, and the court procedural number is evenly divisible by five, unless you’re feeling lucky and want to double or nothing, and the judge’s antepenultimate letter of his/her name is J. And the Packers won the Super Bowl. Else all bets are off and we’re back to the quack…
Seriously though, if “So You Think You Can Dance” just isn’t doing it for you, and you’re interested in watching any of the video(s) from Tuesday’s hearing, here’s the link: http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?evhdid=4007
What is important is that Judge Sumi re-issued her temporary restraining order, making it “crystal clear” that no further implementation of the bill could happen. To wit, “I do therefore restrain and enjoin* the further implementation of Wisconsin Act 10. Period.” (Cue to the 18:40 point on Part 5 for her decision on Tuesday.) She went on to say that “I must state that those who act in willful and open defiance of a court order place not only themselves at peril of sanctions, they also jeopardize the financial and the governmental stability of the state of Wisconsin.” (Bam!) “Those” being, say, Mike Huebsch, Sec. of the Department of Administration, or Steven Means of the DOJ, who continue to argue that because Sumi did not mention whether Act 10 is in effect, it remains in effect. But Act 10 was forced in violation of at least the original restraining order, if not the open meetings law which originally began this runaround. So this has the effect of saying “Well, because you didn’t just now tell me I couldn’t do what I did but wasn’t supposed to do when I did it because you told me I couldn’t do it yet even though I did it anyway, then it doesn’t matter that what I did was wrong and a second violation in the first place, because you’re not telling me now that what I did I wasn’t supposed to do, thus what I wrongly did is in effect.” Fucking lawyers! Circuit court, or circus?
* While we’re mincing words, maybe everyone knows this, but “enjoin” does not mean to join or to add. While not strictly a technical term, it’s nonetheless a tricky word not typically used in conversation that gets confused because it sounds like something it doesn’t actually mean. (For example, the word “noisome” has nothing to do with noise or sound; it means something that smells bad.) Anyway, to enjoin means either to forbid or prohibit by a judicial order.
This is really a question of alternate realities. The judge places a temporary restraining order on the Sec. of State from publishing a law. Walker or the Fitzgeralds or David Koch or the Wizard of Oz or Who-the-hell-ever then tells the Legislative Reference Bureau to “publish” Act 10 on its website — a wholly unprecedented act that not only flies in the face of a gazillion years of tradition (and not just because the internet wasn’t around then!) but grossly presumes the authority to do so. The judge re-orders the restraining order. Then the DOA/DOJ says that because she didn’t mention (a) the LRB in her original order or (b) whether Act 10 is in effect in her re-order, then it’s unclear whether the order has any effect on it; ergo, it must be law, because they say so. Whoopdy-do! Scott Fitzgerald’s wife — who is a teacher and recently received a pink slip due to her husband’s and brother-in-law’s bill — could write a blog and “publish” Act 10 or Act 10 Quadrillion, but it would have no legal clout.
The following morning, Judge Sumi stated this in no uncertain terms.
It’s worth noting that the Director of the Legislative Reference Bureau, Robert Lang, said that in his opinion the mere act of mentioning the bill on its website did not carry the force of law. But why ask him? Said Mr Means only minutes after Sumi’s decision, “it’s our position and we believe the position of those in control of state government that the law has been published and it is in effect.” Could you imagine being married to such a man? “But hunny, you never told me to not not pick up the dry cleaning…” There’s a great moment caught on video after Means says this to a pool of reporters where, standing behind him (though unbeknownst to him) is none other than Peter Barca who, just utterly incredulous, exclaims “Unbelievable!” and storms off disgusted. It’s at the 30:55 mark of the Part 5 video, but it’s worth listening to some of the reporters’ questions leading up to this.
Other highlights are Part 1 at the 54:00 mark for La Follette; Part 3 with Robert Lang in an unassuming Barney Fife impersonation; the 18:40 point on Part 5 with Judge Sumi’s decision on Tuesday.
Also, this postscript that brings us back full circle to the irony/karma of brown bag gimmicks:
In her decision Judge Sumi expressed dismay at how much money these proceedings were costing the taxpayers and all but prescribed “a good, clean fix” to those erstwhile immune legislators who only need(ed) to bring up the bill again, give proper notice, and just vote on the goddamn thing already. Which, of course, led Republican Senate Majority Leader Scott Fitzgerald to pule, “I do take offense to that. I mean, If Judge Sumi was in the middle of a trial and I stepped in and said, ‘Why don’t you just do it over because we don’t like the results,’ I think they would be taken aback by that.” Again, alternate reality, for that’s not at all what this is like. Though perhaps if your head’s so far up your ass, you can help but speak out of it.
Originally written: 3/31/2011