Sumi upholds temporary restraining order through May 23

Three options: Give proper notice and vote again; Republican defendants break immunity and testify or just remain under the TRO. What do you think will happen?
April 1st, 2011 |
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Dane County Judge Maryann Sumi

Dane County Circuit Court Judge Maryann Sumi has maintained her temporary restraining order on Secretary of State Doug LaFollette until May 23, when briefs concerning fines, the application of law and time limits of service on the immunity of the Republican leaders of the Senate and Assembly are due.

Essentially, the law removing most collective bargaining rights from public employees will not be published or effective until May 23.

This could all change if Senators Scott Fitzgerald and Mike Ellis and Representatives Jeff Fitzgerald and Scott Suder decide to waive their immunity from trial and appear in Sumi’s court. They could also choose to give 24-hour notice to the Assembly and Senate, then hold another vote on the bills that make up Wisconsin Act 10.

However, no matter how simple the second option sounds, it is unlikely that will happen.

The Fitzgerald brothers, Suder and Ellis have immunity from lawsuits until 15 days after a legislative session ends. The legislature is still in a special session (called by Gov. Scott Walker on Jan. 4) and has a regular session slated to begin on April 5.

The Assistant Attorney General Maria Lazar argued that the TRO is supposed to be temporary, and since the absent parties of the suit — the four Republicans — are not available for a temporary injunction hearing, the TRO would become permanent.

“The TRO should expire,” Lazar said. “We think the answer here is that you vacate the TRO and rule that this hearing is concluded.”

Robert Jambois, Rep. Peter Barca’s attorney, said the hearing should continue until the absent parties appear or waive the immunity.

“It needs to be continued until we can have a hearing of injunctive relief,” he said. “The information presented has met the basis to continue the TRO. If that inconveniences them (the absent parties), they can remedy that by your suggestion.”

Judge Sumi has suggested the Senate and Assembly simply give the proper notice and pass the bills again.

Sen. Mark Miller’s (D-Monona) attorney, Susan  Crawford, argued that under the open meetings law sections in question, 19.96 and 19.97, the court has the authority to enter penalties against the parties and issue an declaratory judgement.

“The state has met its showing and there is a reasonable likelihood that the law will be void because of the violation of the open meetings law,” she said.

Sumi decided to leave the case open, continue the TRO and give the attorneys on all sides a chance to prepare and enter briefs for and against the suit. She also asked them to answer three questions  - whether an officer’s immunity would allow for the monetary penalty portion to be split from a declaratory relief order; if the court can move to judgement, even if indispensable parties are not present ,and whether the time limits for the DA to serve papers on parties continues to run while immunity remains in effect.

The district attorney has until April 25 to provide the first brief; the AG has until May 16 to respond, and the DA has one week after that to offer counter arguments.

“This can’t be hanging out there too long,” Sumi said before she adjourned for the day.

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