MacIver News Service | March 18, 2011
[Madison, Wisc…] Wisconsin Attorney General J.B. Van Hollen wasted no time Friday in announcing the Department of Justice will appeal a judge's granting of a restraining order that prohibits the publication of the law enacting the Budget Repair Bill.
“The Legislature and the Governor, not a single Dane County Circuit Court Judge, are responsible for the enactment of laws,” said Van Hollen. “Decisions of the Supreme Court have made it clear that judges may not enjoin the Secretary of State from publishing an Act.”
Earlier Friday, Dane County Judge Maryann Sumi granted a temporary restraining order blocking publication of 2011 Wis. Act 10, the Budget Repair Bill, which contains changes to the collective bargaining process for public employees in Wisconsin.
The judge made her announcement Friday morning, saying she did not see sufficient evidence indicating the legislative conference committee could not have given a 24-hour notice for its meeting last week.
Implementation of the Act cannot begin until it is officially published by the Secretary of State. Sumi’s order puts that process on hold, a move Van Hollen argues exceeds her authority.
“Decisions of the Supreme Court are equally clear that Acts may not be enjoined where the claim is that a rule of legislative procedure, even one as important as the Open Meetings law, has been violated,” said Van Hollen. “No matter whether individual citizens agree with the substance of the bill or the manner in which it was enacted, I would hope all see the value in ensuring this matter be given the opportunity to work its way expeditiously through the judicial process.”
Various Democrats and labor union leaders petitioned the court for the order, arguing that 24 hours notice was not given prior to the Conference Committee meeting on the bill.
Republicans, who hold the majority in both the State Assembly and State Senate, counter that the official Rules of the Senate and Assembly waive that notice requirement during Special Sessions of the legislature, like the one in which the budget repair bill was considered.
Senate Rule 93, which provides that for special session bills, "no notice of hearing before a committee shall be required other than posting on the legislative bulletin board," was actually authored in 1983 by Democratic State Senator Fred Risser (D-Madison), with current Senator Tim Cullen (D-Janesville) the first co-author. The rule’s Assembly counterpart was also implemented in 1983, and supporters included Madison Representative Midge Miller, mother of current Senate Minority Leader Mark Miller (D-Monona).
Act 10 includes several changes in public employee compensation and bargaining powers. Under the new law, most school, state and local employees would have to make a contribution to their pensions, 5.8% of pay for most state employees, and approximately 12.6% of the total cost of their health care premiums. Also, many issues would no longer be subjects of collective bargaining and employee wages could not be raised by more than inflation each year, unless a referendum was passed.
Three weeks after Senate Democrats fled the state, the Wisconsin State Senate passed the bulk of the Budget Repair Bill in a series of swift and deliberate moves, which angered Democrats and prompted the various legal challenges now before Judge Sumi.
Late in the afternoon of March 9th, Senate Majority Leader Scott Fitzgerald and the GOP lawmakers assembled for the Special Session voted to send the bill to a bipartisan Senate-Assembly Conference Committee.
Shortly after 6 pm that evening, the Conference Committee convened and quickly approved Fitzgerald’s changes to the budget bill over the forceful objections of Assembly Minority Leader Peter Barca (D-Kenosha) who complained the state’s Open Meetings law was being violated.
Democrats fled the state on February 17th in an extreme parliamentary maneuver to prevent a 3/5th quorum from being present.
The Wisconsin Constitution requires more than a simple majority for passage of appropriation bills. A quorum of 3/5 of each house of the legislature is needed to pass any bill 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.”
To dispatch the 3/5th quorum concerns, the Conference Committee amended the bill, stripping it of appropriations and bonding authority but retaining the collective bargaining changes and other provisions.
That evening, from an unknown location in Illinois, Senate Minority Leader Mark Miller (D-Monona) issued a statement, “Tonight, 18 Senate Republicans conspired to take government away from the people,” Miller said. “We will join the people of Wisconsin in taking back their government.”
Among the items removed from the bill were nearly $250 million in debt restructuring and lapses of authorized spending to the Department of Administration, as well as a reversal on the sale of state power plants to private entities.
Increased funding to the Department of Corrections and the state’s Medicaid programs, needed to forestall shortfalls in those programs were also not included in the Conference Committee report.
Despite the presence of financial provisions in the bill, Fitzgerald said in the Conference Committee the move to vote was reviewed and cleared by three important non-partisan state agencies – the Legislative Fiscal Bureau, the Legislative Council and the Legislative Reference Bureau.
About a half hour after the committee met, the Conference Committee Report passed the State Senate 18-1. The nonamendable bill was passed by the State Assembly the next day.
Judge Sumi has calendared further proceedings for March 29th; the changes in pension and health care payments for state employees, which were within Act 10, were slated to kick in April 1st.
The Regular Session of the Legislature is in recess until April 5th and the Special Session is adjourned until Tuesday, March 22nd.