This is the first live blog for the hearing today by DK Poli and with bloggers wolverinethad, Naranjadia, RhodaA, and myself. If and when we have too many comments and/or updates, one of us will create a new diary of Wisconsin Hearing Live Blog #2 etc. Live online coverage of the hearing should be provided by Wisconsin Eye, which is trying a new remote technique and they hope it works! If not, we will have to rely on finding good twitter feeds and current news reports. The hearing starts at 6:30 am pacific.
Please join live blog #2 now (noon pacific).
LINKS FOR COVERAGE
1. Audio ustream live WTDY (h/t gchaucer2)
2. Channel 3000 full video feed
3. Twitter
A quick guide for people listening/watching the livestream: The "State" refers to the Dane County District Attorney, who filed the complaint, and the defendants refers to the Attorney General's office.
Thus far, District Attorney Ismael Ozanne (DA) has obtained a court order providing: (1) a Temporary Restraining Order (TRO) to enjoin Secretary of State (SOS) Douglas La Follette from designating a publication date or doing any further implementation of the anti-union law; and (2) Judge Maryann Sumi declared that the anti-union law has not been published as required by statutes and is "therefore not in effect." Gov. Walker will "comply with the order by halting its implementation of the law."
Today, Judge Sumi should rule on the DA's request for injunctive relief to block this law until the judge can determine whether lawmakers properly adopted the law. Specifically, in the Amended Complaint, the DA seeks judgments that:
1. 4 GOP defendants violated the Open Meetings law;
2. Actions taken by the Joint Conference Committee (JCC) violated the Open Meetings law and two state Constitutional provisions;
3. Actions taken by the JCC are void;
4. Judgment declaring the anti-union law null and void as based in reliance on the void actions by the JCC;
5. A forfeiture or monetary penalty of $300 against the 4 GOP defendants, plus court costs and attorney's fees;
6. Judgment that it is in excess of the authority of the SOS to publish the anti-union law, which is null and void; and
7. A temporary and permanent injunction to enjoin SOS from publishing the anti-union law.
The injunction is needed to maintain the status quo because the 4 GOP defendants have a constitutional privilege that provides immunity from civil process while the Legislature is in session.
On March 28, District Attorney Ismael Ozanne filed for this hearing a Motion for Temporary Injunction, Declaration and Other Equitable Relief where he made the following arguments in his brief supporting this requested relief:
I. Injunctive relief to enjoin the SOS from publishing the anti-union law in order to maintain the status quo of this case until the Court addresses the merits of the claims filed by the DA.
The Supreme Court held in 1976 that the Open Meetings law applied to legislators and a legislative committee. The only relief available at that time was forfeiture or small monetary fine. After that case, the open meetings law was entirely rewritten, expanding the scope of relief to include declaratory and injunctive remedies --- and for the first time, the Legislature provided that action taken at a meeting held in violation of the law was voidable. The rule of construction is that aside from forfeiture, the open meetings law is to be "liberally construed to achieve the purposes" of the law.
The DA argues that a court has the authority to "prevent publication of legislation that is the product of a violation." That is, the anti-union measure is the fruit or product of the Joint Conference Committee's (JCC) unlawful actions that then allowed submission of the measure to the Senate, Assembly and Governor. The DA wants to void the actions of the JCC, and if those actions are voided, then the subsequent actions of the Senate, Assembly and Governor are a nullity. The DA quotes Sen. Scott Fitzgerald who "recognized that the legislative process was stymied," and so on March 9th, they created the JCC to proceed with the anti-union measure. Absent that authority, the power to void actions taken at an unlawful meeting of a legislative body would be ineffective in preventing tainted legislation from having the full force and effect of law. A liberal construction contemplates that such actions are a nullity and therefore can not gain the status of law."
The Attorney General (AG) argues that the court does not have power to prevent the publication of a law based on violations of open meeting law, citing a 1943 Supreme Court decision of Goodland v. Zimmerman. Goodland is distinguishable because a Governor challenged the constitutionality of legislation before it became law, and the Court held that only after a bill becomes law can someone sue for deprivation of a constitutional right.
However, the DA is not challenging the constitutionality of the anti-union law, but argues that the anti-union law is the product of violations of the open meetings law. The goal is to redress past violations of the rights of the public to sufficient prior notice and meaningful access to the March 9th Joint Conference Committee.
The DA notes that the legislature has an available remedy of a do-over to re-enact the anti-union measure in a process that complies with the public notice, public access and other requirements of the Open Meetings Law. However, right now no second vote is planned because the GOP has concerns over protests and legal challenges:
Also, they are not eager to take up a bill that drew tens of thousands of protesters to the Capitol for weeks and forced Republicans in tight districts to take a tough vote - especially now that efforts are under way to recall eight Republicans and eight Democrats in the Senate.
Republican leaders also know even if they pass the law again, they will face legal challenges. Two other lawsuits have already been filed, and others are expected.
II. The Court has jurisdiction to determine whether the Legislature complied with the requirements of the Open Meetings Law because those requirements are derived from the Wisconsin Constitution.
The DA argues that the Open Meetings Law "implements the constitutional commands of openness and transparency in government." In the Open Meetings statutes, the legislature bound itself to "comply to the fullest extent" with the law, and provided that the Open Meetings law "shall apply to all meetings of the senate and assembly and the committees, subcommittees and other subunits thereof," except under limited circumstances.
The DA argues that the court has the "authority to evaluate legislative compliance with the Open Meetings law" because the court can determine whether the Legislature has complied with "relevant constitutional mandates," citing a Wisconsin Supreme Court decision of Milwaukee Journal Sentinel (2009). That is, a "court may regulate the legislature's conduct if its rule of procedure is a codification of its constitutional obligations."
The hearing should be interesting. But, I also fear that it's time for the GOP to whip out another loophole: First they used the BS loophole of ignoring open meetings law, then voting for an ostensibly non-fiscal measure and then they manufactured a loophole by pressuring the LRB to post the anti-union law.
Update #1: 9:45 am – DOJ Attorney Lazar objections: (pdnc)
DOJ objects to lack of due process for the 4 GOP defendant lawmakers who refuse to waive legislative immunity and appear in court. Judge says jurisdictional arguments will be addressed, but appropriate to continue with testimony. The absent defendants have standing offer to cross-examine when they are no longer cloaking themselves with legislative immunity.
DOJ also objects to amended TRO.
UPDATE #2 10 am:
GAH! Stupid update not working for me now.
Anyways, to summarize so far, Dane County DA has amended findings of fact and filed a new version with the court.
AG's office then jumps in with multiple objections. They object that the legislature is immune from court review (how the Founders would have laughed at this simple thought process!), that the TRO should be voided because it was declaratory and they weren't allowed to review it first, that it's lack of due process to hold hearing because four legislators that "refused to give up their immunity" aren't represented (funny, didn't think you got to have it both ways), and that an open meetings act violation doesn't void a law passed in a meeting that violates.
Judge Sumi says that the AG is forgetting Mil. Journal-Sentinel vs. the Dept. of Admin., only 18 months old, that gives courts the right of legislative review.
And we're on to witnesses. First one is asst. Senate clerk Jeff Renk, called by the AG.
UPDATE #3 10:05 am
WTDY stream up: http://www.ustream.tv/...
Channel 3000 feed: http://www.channel3000.com/...
WTDY feed slightly ahead, because it's audio only. C3000 feed has video.
Update #4: 10:00 am – Witness Jeffery Renk, Assistant chief clerk for Senate testifying re notice provided for March 9th hearing. : (pdnc)
He started process of drafting notice at 3:30 for a 6 pm meeting. Notice emailed at 4:18 pm, which is not 24 hours or even 2 hours, as required by law.
Updated by wolverinethad at Fri Apr 01, 2011 at 10:16 AM EDT
Two clerks, Jeff Renk followed by Rachel Veum, give timeline of putting notice together followed by distributing it. Their testimony verifies that less than two hours went between it being finalized, posted, and the conference committee vote. I don't know how this helps the AG's case, but hey, if they wanna sink themselves, go for it. Turns out the DA has been calling witnesses, Twitter feed was unclear on this, so I apologize for the mistake.
UPDATE NO. 5: From Twitter Feed: "President Obama plans Madison visit for April 5 rally" -- at 10:17 am by RhodaA. That's WI election day where new SC Judge and others to be elected. Needs Confirmation if anyone can find it.
Updated by wolverinethad at Fri Apr 01, 2011 at 10:35 AM EDT
(deleted this by accident while updating blog)
Senate Chief Clerk/Parliamentarian Rob Marchant testifying right now. Despite several objections by AG, two of which were sustained, the DA has been showing through Marchant's testimony that while Joint Rules for the State Assembly don't state specifically compliance with the Open Meetings Act, it is custom to abide by it. Marchant further testified that there is only OMA exceptions if there is a direct conflict with a Joint Rule, or if notice of good cause is given. Notice of good cause was NOT given.
Furthermore, Marchant (and I believe this is a BIG deal), says that Sen. Fitzgerald gave him 48 hours advance notice that the conference committee would likely be meeting. If this is indeed the case, they planned this whole move ahead of time and deliberately acted to prevent a challenge.
Updated by wolverinethad at Fri Apr 01, 2011 at 10:45 AM EDT
AG continuing to assert legislative immunity, with a new twist. Arguing that Marchant can't testify because of it being both hearsay AND invoking attorney-client privilege, because Marchant gives legal advice to Senator Fitzgerald as to rules and processes. DA argues back that since Marchant is a government official giving legal advice to a member of the government, no privilege applies. Judge Sumi rules privilege has been waived and Marchant can continue to testify.
Update #6: 10:50 am– Witness says precedent for short notice for meetings, but not the law (pdnc)
Senate Chief Clerk Rob Marchant testified that "legislative rules do not state when meeting notices must be posted for committees." He says there is "long-standing precedent" of meetings taking place with less notice.
However, the law says that legislative rules can trump when there is conflict. There was no conflict there, so then the open meetings law should govern, and it requires 24 hours notice unless good cause, and then 2 hours notice.
Updated by wolverinethad at Fri Apr 01, 2011 at 11:11 AM EDT
AG continues to argue attorney-client privilege, Judge Sumi reiterates her ruling on that, and regarding the hearsay ruling, she decides to handle it on a question by question basis, partially overturning her earlier decision this morning.
Updated by wolverinethad at Fri Apr 01, 2011 at 11:25 AM EDT
After continued arguments by both sides, with the AG saying that Marchant's testimony isn't fair because the senators aren't there (because they're invoking immunity). Judge Sumi says that until immunity is waived, revoked, etc., she's not going to rule otherwise against them. She said that for a TRO, it was fine, but since this is a larger evidentiary hearing, she won't allow hearsay until the Senators make a decision, because a complete record is needed for a final order.
In short, big victory for the GOPers, because by invoking immunity and dragging this out, they might eventually be able to get the TRO lifted, because Judge Sumi is carefully staying in bounds. I have a feeling (just guessing based off my limited knowledge of constitutional law) that the Supreme Court will have to rule on immunity applying, and so the election Tuesday has big consequences re: that issue.
Updated by Naranjadia at Fri Apr 01, 2011 at 10:38 AM CDT
Discussion of how the public learns of meetings schedule. Marchent: online. Usually only updated every night, but he says staff made an exception this time. Asked when it was posted this time. Marchent doesn't know.
Updated by wolverinethad at Fri Apr 01, 2011 at 11:45 AM EDT
The AAG seems to be desperate to object and stop Marchant's testimony. She has been repeatedly objecting, loudly at that, and inferring that the DA is asking political questions. Judge Sumi overruling the objections so far.
Updated by wolverinethad at Fri Apr 01, 2011 at 11:50 AM EDT
AAG again objects, saying that DA is now moving into the lawsuit regarding the constitutionality of the law itself. Judge Sumi again overrules, saying that the DA is establishing a timeline with these questions.
Regarding what I said about desperate to object in the last update, I think it's becoming clear that the objections are based on the fact that this is INCREDIBLY embarrassing for the GOP, having it come out how they chose to circumvent the rules, both regarding the fiscal nature of this act, and getting around the notification requirements.
Update #7: 11:58 am: DA Office makes point that SR does not override timing of notice because silent on issue of timing. (pdnc)
Marchant continues. No specific provision in Senate Rules that override 24 hour notice. SR 93 only requires notice posted on legislative bulletin board. There is no mention in SR 93 that mentions timing of notice. Yeah, like we have been saying on DK for weeks now.
Update #8: 12:05 pm This is the AG Compliance Guide referenced in court. I have cited and quoted several times because written by AG and in that compliance guide, or manual for the open meetings law, the AG sets out principles and interpretations that support DA's case. (pdnc)
Updated by wolverinethad at Fri Apr 01, 2011 at 12:08 PM EDT
Ooooooh, big one here. The DA read from the regulations, which specifically state that 24 hours notice must be given, "unless for good cause, such notice is impossible or impractical, in which case shorter notice may be given, but such notice may not be less than two hours."
Clearly, as we all know, there was NO reason why the meeting had to happen immediately. DA asks Marchant specifically if Senator Fitzgerald or ANY senator gave a reason why the meeting could not take place the following day, and Marchant said he did not recall anyone giving him such a reason.
Updated by wolverinethad at Fri Apr 01, 2011 at 12:12 PM EDT
I'm a little confused here, and perhaps someone can help us out as to what is going on (again, my legal knowledge is somewhat limited). How can the AAG continue to object to questions as "requiring a legal judgment," when it has been established that Marchant, the chief clerk/parliamentarian, is an attorney? I know that Judge Sumi has been overruling them, but what could even be assumed as a foundation for saying an attorney can't make a legal judgment?
Update # 9 - Selected small venue for meeting, limited public to 20 seats: Sergeant-at-Arms Blazel testifies on issue of violation regarding selection of Senate parlor rather than a room large enough to handle more of public than the 20 seats reserved for public. (pdnc)
Updated by wolverinethad at Fri Apr 01, 2011 at 12:47 PM EDT
DA's questioning of Capitol Police supervisor is establishing the timeline for "the administration reducing people's access to the People's business." AAG Lazar has objected twice, the first time overruled, the second time Judge Sumi asked ADA Jambois to speed matters up.
update # 10: Public access to Capitol restricted in unprecedented manner. (pdnc)
Public had limited access to Capitol on March 9th, only two entrances with armed guards and metal detectors. In 20 years witness (Capitol police officer Daniel Blackdeer) worked for Capitol police, they never used these types of restrictions on public access.
Blackdeer testified that early on March 9th, only two entrances were open to Capitol. But an hour before the JCC meeting, they shut down one of these entrances, so that only 1 of 8 entrances were open for the JCC meeting.
update # 11: At least nearly 3,000 people denied access to JCC meeting – at each step GOP took actions to deny public it's right to attend meeting (pdnc)
The GOP not only failed to provide timely notice, and failed to provide accurate notice of the issues to be addressed JCC meeting, but used unprecedented restrictions to deny access to those members of public who were lucky enough to find out about the meeting.
Rich Judge, Chief of Staff to Assembly Minority Leader Peter Barca, testified that almost 3,000 people signed a spontaneous petition when they could not get into the JCC meeting.