Dane County District Attorney Ismael Ozanne is asking judge to void Walker's anti-union bill that was "passed" last week in violation of the State's open meeting law. Walker signed the bill last Friday, but there is one more step before the law can take effect, and this complaint seeks to prevent this step of publishing the legislation, as well as voiding the measure and financial penalties of $300 forfeiture plus court costs and attorney's fees as well as a declaration that they violated two state constitutional provisions. The defendants are: "Assembly Speaker Jeff Fitzgerald, R-Horicon; Senate Majority Leader Scott Fitzgerald, R-Juneau; Senate president Michael Ellis, R-Neenah; Assembly Majority Leader Scott Suder, R-Abbotsford; and La Follette," a Democrat.
UPDATE: A little explanation of the DA's strategy. This complaint is a civil action, and lawmakers have a constitutional privilege from civil process during legislative sessions. Final resolution of this civil action is not likely to happen before March 25th, the date the Secretary of State intends to publish the bill and then it becomes effective the next day. Thus, the DA is seeking an injunction to stop the bill from becoming effective, to prevent this measure from becoming law before the court determines whether the open meeting laws and constitution etc were violated and warrant a voiding of the actions. In other words, the DA is trying to ensure that the court faces the issue of voiding a measure that is not yet effective. The DA is also seeking a finding that named defendants violated the open meeting law knowingly as this would support his request for penalties of $300 forfeiture as well as payment of court courts and attorney's fees.
UPDATE Thursday March 17th:
Temporary restraining order hearing on Friday:
Ozanne is seeking a temporary restraining order to bar publication of the budget repair bill by Secretary of State Doug La Follette, who is also named as a defendant in the case. Ozanne said after a brief status conference in the case on Thursday that Friday's hearing can proceed because La Follette does not have immunity and has been served with the lawsuit.
Ozanne told Dane County Circuit Judge Maryann Sumi that he expects to call 16 to 20 witnesses. Sumi said that if Ozanne does not get through his witnesses on Friday she will set a date to continue the hearing after she returns from a weeklong vacation on March 28. That means the hearing could end on Friday without a decision on the requested restraining order.
I telephoned DA Ozanne to find out the impact if the hearing is continued until March 28th or 3 days after the publishing scheduled for March 25th. He is in court now, so I left a message because his office says only he can answer questions on this case.
DA Ozanne filed a civil complaint in court today that alleges:
a joint Assembly-Senate conference committee met without providing the required 24 hours' notice, and that notice of the meeting did not give the public enough information about what would be discussed.
Ozanne also alleges that the space for the meeting, the Senate Parlor, was not large enough to accommodate members of the public and that people who wanted to attend the meeting were barred from entering the Capitol, also in violation of state law.
The complaint also seeks to "bar Secretary of State Doug La Follette from publishing the legislation, as he has said he would do on March 25, the last step before it takes effect."
This complaint was triggered when citizens filed complaints about the committee's actions in passing this measure. One complaint was filed by Assembly Minority Leader Peter Barca (D-Kenosha) who had voiced objections at the conference committee meeting that the meeting violated the State's open meeting law.
Last week, Senate Chief Clerk Rob Marchant argued that the committee was not required under Senate rules to give advance notice of meetings other than posting notice on a legislative bulletin board. However, the DA stated in the complaint that a different set of legislative rules apply, the joint rules, because the committee consisted of lawmakers from the Senate and Assembly and "there is no joint rule — the rules that govern joint Assembly-Senate operations such as conference committees — providing an exception to the Open Meetings Law. And that law requires 24 hours' notice 'unless for good cause such notice is impossible or impractical.'" If good cause is shown, then the law requires 2-hour notice, but the GOP did not meet that standard either.
The DA cited in his complaint how the state open meeting law codifies mandates of the Wisconsin Constitution that are key to democracy, specifically, that "the right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged" and that the "doors of each house shall be kept open except when the public welfare shall require secrecy."
The DA is asking the court to:
1. Find that Senator Scott Fitzgerald and a few other defendants violated the state's open meeting law.
2. A judgment declaring that the actions taken violate two provisions of the Wisconsin Constitution.
3. A judgment that the actions taken by the conference committee be voided because the public interest in enforcing the open meeting law outweighs any public interest to maintain the validity of these actions.
4. A judgment of forfeiture against certain defendants, including Sen. Scott Fitzgerarld. The amount of the forfeiture would be $300 "plus court costs and attorney's fees."
5. A temporary and permanent injunction to enjoin the Secretary of State from publishing this measure.
Courts generally do not like to void legislative actions, but there is a pretty good case here of violating a number of provisions key to open government and democracy. However, even if the legislative actions are not voided, if the judge finds that the GOP lawmakers violated the law, this can help the recall drive and a forfeiture of $300 plus court costs and attorney's fees is at least some personal penalty of the kind treasured by them.
A hearing is scheduled for tomorrow.
My diary from last week provides more background on the open meeting law requirements: Wisconsin GOP Did Not Provide Proper Notice.
UPDATES: (I tried update feature but did not appear to work, but if it does later work, you will see this repeated.)
Walker may have violated open meeting laws today:
Ozanne's court filing came the same day Sen. Fred Risser (D-Madison) and Rep. Mark Pocan (D-Madison) boycotted a meeting of the Building Commission because they said it violated the open meetings law. The administration shut the doors and stopped allowing the general public into the meeting once all 50 or so seats were taken.
"It's not a public meeting if you don't let the public in," Pocan said in an interview outside the meeting room.
Risser, who has served on the commission for long stretches over the past 40 years, said he had never seen the doors to the room shut during a meeting. He said that he'd seen more people packed into the room and that past meetings had been moved when there was a heavy turnout.
But in a news conference later in the day, Walker said the meeting was "100% open" as it always is. "We can't put more people in than there is space to stand and sit around in," he said.
A Democrat is proposing constitutional amendment to prevent lawmakers from leaving state in the future:
But Sen. Tim Cullen (D-Janesville) said earlier Tuesday he would introduce a constitutional amendment that would allow the Senate to proceed with a simple majority in all cases. That would make it impossible for a minority of lawmakers to block action on future bills by leaving the Capitol, though it takes at least two years to change the state constitution.