Blocking of Wis. union law was all about open meetings

Tuesday, March 22, 2011

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As naïve as it might be to hope that Dane County District Judge Maryann Sumi’s blocking of Wisconsin’s new public-union law will be viewed on its merits — rather than for its politics — her decision is a courageous embrace of the importance of open government.

Most people in Wisconsin, of course, are focusing on the effect of Sumi’s ruling and the ways Republicans might avoid it and Democrats might capitalize on it. The basis for Sumi’s temporary restraining order, however, should be neither ignored nor trivialized.

The legal issue in State of Wisconsin v. Fitzgerald, which was filed by Dane County District Attorney Ismael Ozanne, is whether a state Senate conference committee violated Wisconsin’s open-meetings act when it, allegedly without sufficient notice, passed to the senate a version of the much-debated public union law that was stripped of provisions related to appropriations. Without the appropriations, Republicans maintain, the Senate could pass the bill in the absence of the Democratic senators who had fled the state to defeat the quorum requirements applicable to bills with certain fiscal provisions.

Wisconsin’s open-meetings law generally requires 24 hours’ notice of public meetings.  If such notice is “impossible or impractical,” shorter notice is allowed, as long as at least two hours’ notice is provided. In the case, Ozanne alleges that the conference committee met without providing the required notice, although some evidence exists that a notice was posted on a bulletin board approximately two hours before the meeting.

The requirements of the open-meetings law, Sumi emphasized, are not technicalities that can be ignored when emotions are high.

“It’s not a minor detail,” Sumi said. “[W]e in Wisconsin own our government. We own it. And we own it in three ways. We own it by the vote. We own it by the duty to provide open and public access to records, so that the activities of government can be monitored. And we own it in that we are entitled by law to free and open access to governmental meetings, and especially governmental meetings that lead to the resolution of very highly conflicted and controversial matters.”

Sumi then quoted from the Wisconsin Supreme Court’s opinion in State ex rel. Hodge v. Town of Turtle Lake:

“An open meetings law is not necessary to ensure openness in easy and noncontroversial matters where no one really cares whether the meeting is open or not. Like the First Amendment, which exists to protect unfavored speech, the Open Meetings Law exists to ensure open government in controversial matters. The Open Meetings Law functions to ensure that these difficult matters are decided without bias or regard for issues such as race, gender, or economic status, and with highest regard for the interests of the community. This requires, with very few exceptions, that governmental meetings be held in the full view of the community.”

Unless her temporary order is appealed, Sumi will decide whether to issue a preliminary injunction after hearings scheduled for March 29 and April 1.  However these issues ultimately are decided, Sumi’s order reminds that the public has an interest beyond what politicians might pause to recognize and that, when necessary, judges will step forward to protect that interest.

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