The Budget Repair Bill Decision: How Did the Supreme Court Do on the Actual Substance of the Law?

This post isn’t directly related to schools but instead concerns the Wisconsin Supreme Court’s recent decision  overturning Judge Sumi’s ruling enjoining the enactment of the Budget Repair Bill.  Since the Budget Repair Bill has a big impact on collective bargaining rights for public workers, including our teachers, I think the topic is related enough to my normal fare to address it here.

The supreme court decision has come in for a lot of criticism  because of its timing.  The decision was issued just eight days after oral argument and just in time to spare Republican legislators from their contingency plan of re-passing the very controversial provisions of the bill for inclusion in the just-enacted budget bill.

The decision has also been criticized on procedural grounds .  The basis for supreme court review of Judge Sumi’s final order that the supreme court identified was not one that any of the parties before the court had specifically requested.  This anomaly was the focus of Justice Crook’s dissent. 

But what about the substance of the decision itself?  Does the court’s decision stomp right through the relevant case law in the same way as it steamrolls the applicable procedures for supreme court review?

It is not clear that the court ultimately reached the wrong conclusion.  However, there is a genuine issue that makes the case more complicated than the cut-and-dried matter the court’s order suggests that it is.  The court fails to address this issue in any meaningful way.  Instead, it simply denies its existence.  

The heart of the issue is whether the court has the authority to review whether the legislature failed to comply with the Open Meetings Law when in enacted the Budget Repair Bill.  This seems to turn on whether the Open Meetings Law should be considered merely a “rule of proceeding” for the legislature or whether the law should be considered as codifying or somehow implementing a command contained in the state’s constitution.  If it’s the former, the court has to stay out of it.  If it’s the latter, the court has the right and obligation to review the legislature’s action in light of the requirements of the law.

The foregoing summary may give the impression that the relevant principle is more clearly established than it is.  In fact, the law in this area seems to be kind of a mess. 

Everyone agrees that, as a general rule, the courts have no business policing whether the legislature complies with its internal rules when enacting legislation, even if those rules are embodied in statutes.  This hands-off principle is grounded in the concept of the separation of powers. 

Everyone also agrees that the court does have the right and obligation to ensure that the statutes enacted by the legislature comply with the state and federal constitution. 

The complication comes in when a claim is made that a statute was enacted in violation of a legislative rule that seems to embody a constitutional principle.  The circumstances under which a court can take up this issue seem to depend on the appropriate interpretation of two supreme court decisions, the most recent of which is particularly murky on the topic.    

The first of the decisions is State ex rel. LaFollette v. Stitt, which our supreme court decided in 1983.  Some legislators challenged passage of a bill authorizing the state’s issuance of $750 million in operating notes.  The legislators argued that the bill had not been referred to the legislature’s Joint Survey Committee on Debt Management, as section 13.49 of the state statutes required.

The supreme court rejected this claim.  It explained that the statutory direction of referral to the Joint Survey Committee amounted to an internal operating rule or procedural statute, and the court was barred from “intermeddling” in the purely legislative concern of whether its rules of proceedings had been followed.

 This is clear enough.  However, the court’s decision in Stitt contained the following language: 

There is no claim in the instant case that sec. 13.49, Stat., embodies any constitutional requirements.  That statute does not codify any constitutional provisions regarding legislative procedures.  It is simply a procedural rule, albeit in statute form and thereby imbued with all the dignity and importance of a legislative act passed by both houses of the legislature and signed by the governor. 

 This language suggests that if the statute had “codif[ied] . . . constitutional provisions regarding legislative procedures,” a different rule would apply, i.e., the court would be able to review whether the legislature had complied with the statute.

Fast forward to 2009 and the supreme court’s second key decision on the topic: Milwaukee Journal Sentinel v. Department of Administration.    The facts are kind of complicated.  In brief, the state entered into collective bargaining agreements (CBAs) with unions that purported to establish a higher level of confidentiality with respect to information about union members than the state’s Open Records Law provides.  The legislature passed legislation that approved the terms of the CBAs.  A couple of newspapers sought information about union members under the Open Records Law.  The unions argued that disclosure of the information was barred by the terms of the CBA.

As the matter came before the supreme court, a threshold issue was whether the legislation approving the terms of the CBAs had the effect of amending the provisions of the Open Records Law, as the unions asserted.  The newspapers argued that the legislation had no such significance, because the statutory procedures required to amend the law had not been followed. 

The statute at issue, Wis. Stat. § 111.92(1)(a), requires that as part of the ratification process for the CBA, the Joint Committee on Employment Relations (JCOER) must introduce in a bill any portions of the agreement that amount to amendments, deletions or additions to existing law.  The newspapers argued that this procedure had not been followed, and so the Open Records Law had not been amended.

The unions countered that section 111.92(1)(a) amounts to a rule of proceeding for the legislature, and, on the authority of the Stitt decision, asserted that the court is barred from considering the extent to which the legislature had followed the rule when it enacted the statute in question. 

In an opinion written by Justice Roggensack, the supreme court rejected the unions’ argument.  The court considered it relevant that Article IV, Section 17(2) of the Wisconsin Constitution provides “No law shall be enacted except by bill.  No law shall be in force until published.” 

 In the key language of the case addressing this issue, the court said:

Here, we need not decide whether Wis. Stat. § 111.92(1)(a) is a rule of legislative proceeding because a statute’s terms must be interpreted to comply with constitutional directives.  Accordingly, even if the statute might otherwise be characterized as a legislative rule of proceeding, we may interpret the statute and apply it to the legislative action to determine whether that action complies with the relevant constitutional mandates. . . .

Therefore, because both Wis. Stat. § 111.92(1)(a) and Article IV, Section 17(2) require the legislature to take additional steps to amend existing law or to create new law, and we have jurisdiction to interpret the Wisconsin Constitution and the Wisconsin Statutes, we have the authority to evaluate legislative compliance with § 111.92(1)(a).

Do you follow this reasoning?  Neither do I.  Whatever it means, the court then proceeded to consider the extent to which the legislature’s actions in approving the CBAs and purportedly amending the Open Records law complied with the constitutional requirements and with section 111.92(1)(a).  It concluded that the open records law was not amended.

To complicate matters further, Chief Justice Abrahamson dissented in Milwaukee Journal Sentinel.  She concluded that section 111.92(1)(a) was a rule of proceeding and, citing Stitt, she reasoned that the courts could not consider whether the legislature complied with its internal rules.  The chief justice concluded that the statute should be considered a rule of proceeding for the legislature after announcing and applying a balancing test that “weigh[s] the various interests involved.” 

Justice Bradley wrote a separate concurrence.  She seemed to agree with the chief justice that a balancing test was appropriate, but she weighed the competing factors differently and came to a different conclusion. 

Neither the Chief Justice not Justice Bradley make any mention of section 111.92(1)(a) codifying or embodying a constitutional directive.  Justice Bradley’s reasoning on this point begins and ends with:  “In a close case, I conclude that the weighty public policies of notice and transparency in government tip the scale.”

So, that was basically the state of the law when the district attorney’s challenge to the passage of the Budget Repair Bill was filed in Dane County Circuit Court and assigned to Judge Sumi.  The claim was that the bill was passed in violation of the Open Meetings Law.  The law establishes the required public notice for meetings of all governmental bodies in the state.  The law also contains the following declaration of policy:  “In conformance with article IV, section 10 of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with [the Open Meetings Law].” 

The threshold question for the court was whether the Open Meetings Law should be considered a rule of proceeding for the legislature and hence beyond the court’s supervisory authority.  Or, is the Open Meetings Law a statute of the type that was referred to in passing in Stitt, one that codifies constitutional provisions regarding legislative procedures?  If so, does that make it like the law the court considered in Milwaukee Journal Sentinel, one that could be applied to the legislature’s actions along with the related constitutional requirements?

Judge Sumi entered a temporary order enjoining Secretary of State LaFollette from publishing the budget repair bill.  That decision was immediately appealed to the court of appeals.   The judges on the court of appeals surveyed the relevant law and threw up their hands. 

They entered an order on March 24 certifying the issues to the supreme court, essentially saying that the supreme court would have to explain its reasoning in Milwaukee Journal Sentinel before lower courts could be expected to apply the law to this kind of situation.             

The court of appeals explained:

 It appears to us that the central question presented by the petition and request for temporary relief is whether the Open Meetings Law’s express reliance on and reference to WIS. CONST. Art. IV, § 10 means that the statute should be interpreted as protecting a constitutional interest, thus subjecting alleged violations by the legislature or subunits thereof to judicial review, as in Milwaukee Journal Sentinel. See WIS. STAT. § 19.81(3). If the Open Meetings Law is not viewed as protecting a constitutional right, then it would appear, under Stitt, that a court would have no authority to void an act based upon an alleged violation.

On June 6, the supreme court held six hours of oral argument on the many issues raised by Judge Sumi’s decisions.  Eight days later, on June 14, the court issued a nine-page, unsigned order and opinion that vacated all of Judge Sumi’s orders in the case.

Justice Prosser wrote a longer concurring opinion.  He did not address or even mention Milwaukee Journal Sentinel, but said only that declaration of policy in the Open Meetings Law was not intended to codify the “doors shall remain open” provision of the state constitution.

Here is the entirety of the supreme court’s reasoning in its nine-page order on the key point (with the citations removed from the excerpt for readability purposes):

The court’s recent decision in Milwaukee Journal Sentinel provides no support for the invalidation of the Act. In Milwaukee Journal Sentinel, a party contended that by ratifying a union contract the legislature also amended the Public Records Law to be consistent with Article 2/4/4 of the contract. In order to answer the question presented, the court reviewed the enactment of the ratifying statute to see whether Article 2/4/4 of the contract was enacted by bill and was published as Article IV, Section 17(2) of the Wisconsin Constitution requires.  The court concluded that the legislature did not take the additional constitutionally required actions that were necessary for amendment of the Public Records Law. In so doing, the court did not review whether the legislature followed its own procedural rules in ratifying the contract, and the court did not invalidate any law. The court looked only at what Article IV, Section 17 required in order to cause a portion of the union contract to become law.

This is a striking way to handle this issue.   As the court of appeals explained, in Milwaukee Journal Sentinel, the court identified something distinctive about the statute in question and its relationship to a constitutional provision.  That something was enough to persuade the court that the “rule of proceeding” bar to judicial review was inapplicable and the court was free to examine the extent to which the legislature complied with that statute in approving the CBAs. 

The issue here is whether, whatever the distinguishing characteristic was that the court identified in Milwaukee Journal Sentinel, can we say that it is equally applicable to the Open Meetings Law such that the courts may review whether the legislature complied with the law in enacting the Budget Repair Bill? 

 The supreme court addressed this issue by essentially denying what it had done in Milwaukee Journal Sentinel.  There the court explained that that “even if [section 111.92(1)(a)] might otherwise be characterized as a legislative rule of proceeding, we may interpret the statute and apply it to the legislative action to determine whether that action complies with the relevant constitutional mandates.” In paragraphs 36 through 41 of that decision, the court did just that: it considered whether — accepting the unions’ interpretation of what the legislature had intended to do — the legislature had acted in a way that was consistent with section 111.92(1)(a).

Section 111.92(1)(a) certainly sets forth a procedural rule established by the legislature.  The basis for the supreme court’s statement that in Milwaukee Journal Sentinel “the court did not review whether the legislature followed its own procedural rules in ratifying the contract” is a mystery, since the Milwaukee Journal Sentinel court did exactly that.

In short, the supreme court short-circuited the analytical task before it by the simple expedient of mischaracterizing what it had said and done just two years earlier.  It resolved the controlling issue in the case by denying its existence. 

This does not necessarily make the result the court reached wrong.  As the court of appeals pointed out, the law isn’t very clear in this area.  If it were, the court of appeals would have addressed the issue itself. 

The principles that support judicial review of legislative compliance with the Open Records Law are not firmly established or ingrained in the law.  In fact, in Milwaukee Journal Sentinel, Chief Justice Abrahamson and Justice Bradley seemed to endorse a balancing test to determine whether a statute establishes a rule of proceeding for the legislature, an approach that almost by definition generates unpredictable results.  

The concern with Tuesday’s order is that the court’s reasoning should lead to its result, not the other way around.  The court tends to undercut its own legitimacy when its rushes out a hurried decision on such a politically-charged issue and doesn’t bother to provide the kind of legal reasoning and analysis that can reassure the reader that the court undertook an objective and reasoned approach to determining the relevant law and applying that law to the facts before it, the sort of approach that in his recent campaign Justice Prosser promised the people of the state he would follow.

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