Mar 28, 2011

Sen. Scott Fitzgerald Should Get Contempt Citation by Judge Sumi

Update II: Publish or Perish: The Budget Bill is Not Law, by Edward A. Fallone

Update: I think Republicans are feeling a tad desperate. Their arguments are now coming down to ignoring the TRO Decision text and the first sentence of the Order text, reading, "For the reasons stated on the record at the March 18, 2011, hearing conducted by the Court, ... ." What is the GOP thinking? Since when can a named defendant ignore a TRO?

" ... Nothing in this government happens in secret. ... I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10."
- Dane County Judge Maryann Sumi, in decision granting Temporary Restraining Order of 2011 Wisconsin Act 10.

Senate Majority Leader Scott Fitzgerald's bizarre machinations last Friday resulting in the Legislative Reference Bureau (LRB) publishing the anti-collective bargaining bill [2011 Wisconsin Act 10] is Fitzgerald's self-admitted attempt to implement as law precisely what he is enjoined from doing as a named defendant in State of Wisconsin ex rel., Ismael R. Ozanne v. Fitzgerald et al [Case No: 11 CV 1244].

This ought to earn Fitzgerald a contempt citation Tuesday morning.

It is a plain fact that Scott Fitzgerald (R-Juneau) is a named defendant in the March 18 order by Judge Maryann Sumi [Case No: 11 CV 1244] granting a motion by Dane County District Attorney Ismael Ozanne on behalf of the state of Wisconsin for a Temporary Restraining Order (TRO) on the implementation of 2011 Wisconsin Act 10, the anti-collective bargaining bill.

The named defendants are Scott Fitzgerald, Senate President Michael Ellis, Assembly Speaker Jeff Fitzgerald, GOP Assembly Majority Leader Scott Suder, and Secretary of State Doug La Follette.

"It's published," Fitzgerald said. "It's law. That's what I contend." (Marley and Stein, MJS, March 26)  Fitzgerald refers to the LRB's publishing the language of 2011 Wisconsin Act 10.

Judge Sumi found that the rushed, secretive process violated Wisconsin's Open Meeting Law that forbids exactly what occured in the Republican attempt to jam legislation through before the people knew what was happening.

Sumi cites Wisconsin Constitution Article IV, Section 10 as the policy rationale in the Open Meeting Law (19.81(3)) of the Wisconsin Statutes.

Reads Judge Sumi's order in part:

I begin with Wisconsin Constitution Article IV, Section 10, a straightforward statement of the public's expectation for the legislature: 'the doors of each house shall be kept open except when the public welfare shall require secrecy.'
Sumi found a probability of success of D.A. Ozanne's case on the merits.

Sumi also found that Republican leaders illegally held a "closed session of a body that took decisive action propelling 2011 Wisconsin Act 10 forward," noting in her decision that resulting action taken at an illegal meeting is voidable.

"I am now issuing a restraining order preventing further implementation of this act," writes Sumi.

Sumi repeated: "I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10."

But defendant Senate Majority Leader Scott Fitzgerald acted last week to implement 2011 Wisconsin Act 10 in plain violation of the restraining order.

Dane County DA Ozanne said last Friday, "I was surprised to learn shortly before 5 p.m. this afternoon that, despite Judge Maryann Sumi’s temporary restraining order, an effort was undertaken to try and make 2011 Wisconsin Act 10 (Governor Walker’s Budget Repair Bill) effective. I was even more surprised to learn that the impetus for an attempt at publication, contrary to Judge Sumi’s order, came from a named defendant in the lawsuit." (WisPolitics)

That would be Scott Fitzgerald who said publicly he consulted with others to see that the LRB acted to implement 2011 Wisconsin Act 10.

"Every attorney I have consulted said this will now be law," Fitzgerald said. "It wasn't a secret. I think they left the door open for this." (Clay Barbour and Ed Treleven, Wisconsin State Journal)

It appears that contra Fitzgerald and the Walker administration, 2011 Wisconsin Act 10 will not take effect.

But Republican lawlessness must end. Fitzgerald should be held in contempt.


  1. You have obviously not read the TRO as I have. It only enjoined the SOS, not any of the other defendants. It is not the problem of one party if the other party misunderstands the black letter law and enjoins the wrong party.

  2. Of course I read the TRO. Quoting from it is the give-away.

    Your interpretation is that only the SoS is enjoined, ignoring the language three grafs up reading, "I am now issuing a restraining order preventing further implementation of this act," before the extended cite from Hodge v. Town of Turtle Lake.

    Your position is that defendants are not directed by this language?

  3. Judge Sumi has no personal jurisdiction over the legislator defendants, and thus no power to order them to do anything, under the Wisconsin constitution.
    Art. IV Sec. 15 provides
    Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session.

    Without "civil process" the legislator "defendants" are not before the court and not subject to its power. While we think of courts issuing orders that affect everyone, the law is that a court's rulings only actually bind the parties properly before them. FYI, this is such black letter law, that the District Attorney has amended his complaint to exclude them from the case.

    So the Fitzgeralds' are contemptuous of the court and its rulings, but not in contempt of the order.

  4. The members are named defendants.

    You claim they are not lawfully before Court.

    But this is a Open Meeting Law violation case, so of course we have leg members as defendants.

    "I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10."

    Your position that "the Fitzgeralds' are contemptuous of the court and its rulings, but not in contempt of the order" is an arugment I am sure they will make.

    But does the leg immunity apply to actions outside [not is session] the internal leg process as they are enjoined by a judge?

    So, the immunity grants them the power to ignore TROs, injunctions, anything a judge tells him? Perhaps we need to look more closely at the contours of leg immunity; it's not monolithic, I'm just guessing.