WSJ: Justices split politically as court takes up collective bargaining law

June 7, 2011
Ed Treleven

As the state Supreme Court heard arguments Monday on a Dane County judge’s order blocking a law that curtails collective bargaining by public employee unions, questions from the justices appeared to fall mostly along the court’s political divide.

Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley, on the court’s liberal wing, grilled Assistant Attorney General Kevin St. John as he told justices that they should throw out actions taken by Dane County Circuit Judge Maryann Sumi that voided the law over violations of the state’s open meetings law.

And when lawyer Marie Stanton, representing Sumi, and Dane County District Attorney Ismael Ozanne stepped up to ask that the court toss the state’s request for Supreme Court intervention, both met heavy questioning from the court’s conservative wing in Justices Michael Gableman, Patience Roggensack and Annette Ziegler.

Still, one of the lawyers opposing Supreme Court intervention in the case said afterward he doesn’t believe the court will decide along political lines whether to take the case.

“I don’t hold the view that the court makes its decisions solely based on ideology,” said Lester Pines, who is representing state Sen. Mark Miller, D-Madison. “To reduce the Supreme Court to the notion that everything is decided on politics is unfair and inaccurate, and that’s not our position.”

The five-hour oral argument had been scheduled to last only two hours, and some of the lawyers who argued their cases said it was among the longest in recent memory.

Court spokesman Tom Sheehan said the court met in closed session afterward, as it does after most oral arguments, and will decide at a later date whether to take the case.

The court is also deciding whether it will take on an appeal that was filed with the Court of Appeals in March and sent directly to the Supreme Court.

The state Departments of Justice and Administration are asking that the high court vacate Sumi’s temporary restraining order and final order, which both block implementation of a bill that ends most collective bargaining for most public workers.

Sumi issued the final order last week after ruling that a state legislative conference committee violated the state’s open meetings law when it met March 9 to pare down Gov. Scott Walker’s budget repair bill to remove fiscal elements, leaving behind the reductions on collective bargaining rights.

Sumi ruled that the committee failed to provide proper public notice of the meeting and that the public did not have access to attend it.

St. John, representing the state agencies, argued that Sumi overstepped her authority and infringed upon the legislative process when she blocked the law.

“The power to legislate may not be designated,” St. John argued.

But on the other side, Ozanne, Stanton, Pines and two other lawyers argued that the Supreme Court should not step into the case and that the state — possibly Walker or either body of the legislature — should simply appeal Sumi’s decision rather than have the Supreme Court decide the supervisory writ that the state is seeking.

“The governor could intervene at any point in the process,” Pines said.

Pines also said there’s no need for the Supreme Court to rush into the case now, since the state has shown little inclination to move it along quickly up to this point.

“What is the rush?” he said. “There is no rush. What is the harm to the public? There is no harm.”

St. John argued later, though, that each day the law isn’t implemented “is an exigency.”

And he said that if Sumi’s actions aren’t stopped it will open the door to similar legal action whenever the Legislature passes a bill.

“If the circuit court’s decision is allowed to stand we’ll have continuous marches down to the courthouse,” he predicted.

Stanton was questioned by justices about the applicability of the open meetings law to the Legislature and whether it allows courts to intervene in the legislative process. She said that when the open meetings law was re-written in 1976, the Legislature did not exempt itself from the law, which she said “invited the court into the (legislative) process,” not by taking part in lawmaking but by assessing the process.

Ziegler also questioned the timing of Sumi’s final decision last week, coming shortly before Monday’s Supreme Court oral argument. Stanton said all the testimony had been taken, issues were briefed and a decision was rendered based on that information.

If Sumi’s orders are overturned and the law is implemented, Pines predicted there would be “numerous” legal challenges of the collective bargaining law in courts around the state not related to the open meetings law.

State Journal reporter Mary Spicuzza contributed to this report.