Tracking the budget repair bill: Will it stand up in court?March 14th, 2011 |
[Regarding last Thursday's passage of the modified budget repair bill] There is, it seems to me, a great irony about all of this. Democrats have referred to Republicans as “thugs” and “political criminals” when, in fact, the clear violation of a legal duty was the refusal of the fourteen Senate Democrats to comply with their body’s own rules and the call that they return – a call that is plainly authorized by our state’s constitution. If there are any “thugs” in the picture, the likely candidates are protesters who have done their best to disrupt the functioning of the legislature.
But what about the passage of a stripped down version of the bill? There are two areas of potential concern, one procedural and the other substantive. Let’s start with process. Did the legislature violate the open meetings law? Sec. 19.84(3) of the state statutes requires 24 hours notice of the meeting of a governmental body “unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting.”
If the statute is applicable, the question becomes: what good cause justified less than 24 hours notice? Assuming that good cause can be shown, was two hours notice given? There are some claims that the notice was given around 4:09 and that the meeting began at 6:04. If that’s so (it seems unclear when said notice was posted) and if the statute applies, what is the impact of being five minutes late? Would a court really invalidate legislation for that reason? Apart from that, how did Senate Republicans manage to even create an issue? Couldn’t they have scheduled the meeting for, say, 6:15? The matter seems to have been sloppily handled but stating the counterfactual itself demonstrates the de minimis nature of any violation (assuming good cause to depart from twenty four notice can be shown.)
But it grows more complicated because the Republicans claim that sec. 19.84(3) does not apply at all. Sec. 19.87(3) of the statutes says that “[n]o provision of this subchapter [the open meetings law] which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule.” Both the Senate and Assembly rules provide that, when in special session, the only notice required is posting on the legislative bulletin board without specification of a minimum notice period.
But we’re still not done. Was the joint committee meeting itself proper? Joint Rule 3 of the legislature provides for such a meeting in the event that the Senate and Assembly disagree. The Democrats say that means that the Senate has to have voted on the bill. The Republicans say that it applies only when there is, in fact, a disagreement. No vote is required.
In any event, I can’t see any of this resulting in invalidation since it requires an interpretation of the legislature’s own rules. On close questions, in particular, I don’t see a court upsetting the legislature’s determination of what they require. This is particularly so in the event of an open meetings violation which, by law, renders an action not void but voidable. Sec. 19.97(3) says that a court should void an affected action only if “the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.” I don’t see much chance of that.
On the substance, the question is whether the legislature really stripped the bill of its fiscal provisions. A fiscal bill is constitutionally defined as one that “imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state ….” I don’t think that limiting the authority of the state and local units of government to collectively bargain comes within that definition. But there is more than that in the bill that was passed. Much of it has to do with moving money around, but it is not clear that any of it is “fiscal” in this specialized use of the term. But I can’t claim to have fully analyzed it.
Apart from the law, what strikes me as odd is the claim that the existence of these issues amounts to some kind of assault on democracy. This bill has been extensively debated and there is a level of public awareness concerning its terms that is unique. You may think it a bad bill but it is a product of democracy passed in the face of lawless behavior by the absconding Senators and, to a lesser extent, the childish antics of the protesters. If you’re looking for an assault on the rule of law, look elsewhere.