Every time I read about the irrelevant Maryann Sumi try to assert some kind of authority in an administrative issue of another co-equal branch of government, I am reminded of the classic 1997 article in The Onion which perfectly captures the self-important viewpoint of the judicial branch.
Sumi's ruling (if you can even call reiterating one's previously unclear blathering a "ruling") is more proof of why trifling DA's and self-important circuit court jurists have no role in evaluating the co-equal nature of power between the executive, legislative, and judicial branches. Gee, go figure that a judge thinks she should have the power to tell the legislature how to operate. Is anyone surprised that a judge's ego would lead them to that conclusion?
Even if the Wisconsin Supreme Court ruled unfavorably, what could the court do if the legislative and executive branches refused to comply? A court - any court - deciding that it has the power of administrative review over the working processes of its co-equal partners is a very dangerous step that effectively elevates the judiciary above the other two branches of government. It would be like the Governor trying to nullify a court decision because he did not like the manner in which the court deliberated, or because he thought Justice A did not give fair consideration to Justice B's arguments.
The appropriate place for citizens to weigh in on the procedural matters of state government isn't in a courtroom. It's at the ballot box.
WASHINGTON, DC—In a landmark decision Monday, the United States Supreme Court ruled 8-1 that it rules.
Justice Anthony Kennedy, writing on behalf of the majority, noted that "while the U.S. Constitution guarantees equality of power among the executive, legislative and judicial branches, it most definitely does not guarantee equality of coolness, and in this regard, the judicial branch kicks that which can be construed as total and complete ass."
"In the case of The U.S. Supreme Court v. Everyone Else (1997)," wrote Justice Clarence Thomas, "this court wins by a serious landslide."
According to the decision, the Supreme Court "rules and rules totally, all worthy and touched by nobody, in perpetuity, and in accordance with Article Three of the U.S. Constitution. The ability of the President and Congress to keep pace with us is not only separate, but most unequal. Fuckin' A."
Sumi's ruling (if you can even call reiterating one's previously unclear blathering a "ruling") is more proof of why trifling DA's and self-important circuit court jurists have no role in evaluating the co-equal nature of power between the executive, legislative, and judicial branches. Gee, go figure that a judge thinks she should have the power to tell the legislature how to operate. Is anyone surprised that a judge's ego would lead them to that conclusion?
Even if the Wisconsin Supreme Court ruled unfavorably, what could the court do if the legislative and executive branches refused to comply? A court - any court - deciding that it has the power of administrative review over the working processes of its co-equal partners is a very dangerous step that effectively elevates the judiciary above the other two branches of government. It would be like the Governor trying to nullify a court decision because he did not like the manner in which the court deliberated, or because he thought Justice A did not give fair consideration to Justice B's arguments.
The appropriate place for citizens to weigh in on the procedural matters of state government isn't in a courtroom. It's at the ballot box.
13 comments:
RS,
This is one of the more uninformed posts I have seen on this blog to-date. Your subtle but unmistakable personal attack on Judge Sumi - suggesting ego had a role in the decision - is something I expect from the likes of media whores like Glenn Beck or Keith Olbermann, or from the likes of establishment politicians looking to score cheap political points while ignoring the substance of an issue. Furthermore, there is another implicit allusion that the legislature or executive could simply ignore any judicial decision deciding a substantive issue rooted in their procedure. Setting aside the Wisconsin-based aspects of this case, your argument is an affront to this thing called the United States Constitution which saw fit to dedicate an entire Article toward the judiciary. I am struggling to avoid slipping into hyperbole in my attempt to discuss this post. To take your closing simile seriously requires . . . well I don't know what to say without resorting to useless hyperbole.
How about discussing the substance? How about discussing how the judge granted a TRO then RO to prohibit the Sec. of State from publishing the law over concern about the potential open meetings law violation. The key word there is *potential.* How about how the judicial system worked, and quickly kicked this thing up to the Supreme Court (since you apparently think lowly WI circuit court judges are incapable of deciding complex issues). Talk about how Walker had the LRB publish, as though the court's order somehow had anything to do with the Sec. of State, when clearly the order was focused on the open meetings issue. The judicial system was running its course, but apparently some people have no regard for that branch of government. Going through the LRB and not the Sec. of State does nothing to obviate the entire purpose of the lawsuit or the reason for the restraining order. As best I can tell, Walker's actions were nothing short of a big "fuck you" to the court's order. I would have moved for sanctions.
If procedure is solely the purview of the legislature, why the hell did they strip the bill of spending? By your logic, to hell with the quorum requirements. That's just a pesky little procedural matter, it's not like a court could stop us, and even if they did we can just ignore it because they have no business telling us how to handle procedural matters in the legislature. That would be a "review over the working processes of its co-equal partners" and is a "very dangerous step that effectively elevates the judiciary above the other two branches of government." Clearly the Senate should do whatever the fuck they want and us voters will just have to wait for those recall signatures. Open meetings? Public input? Debate? Procedural. Go cry yourself off to the ballot box.
Just because branches of government are co-equal, does not mean their powers are the same, or that they cannot have any input or say on the actions of others. Their roles are different and distinct, and sometimes it involves one branch of government saying "no" to another branch of government.
There is a legitimate issue here worthy of debate. Instead Walker acts like a 5-year-old: "But your honor, you didn't say the LRB couldn't publish the law . . . ." What the fuck? Is that seriously the best way for the executive to operate?
But no. Rather than offering informed debate from a unique perspective, you are choosing to help lower the debate. We get so caught up in meaningless nit-picky bullshit that we become incapable of accomplishing anything of value. Meanwhile, this state and this country continue to deteriorate while we tripe on about the ego of our judiciary.
What the hell happened to you? Come back to reality. Please. If nothing else, please take some time outside of the political bubble you have apparently re-entered.
Concerned,
Max Power
Wow. This is a serious question. Are you the same person who wrote this blog a year ago?
Please, don't give us any bs about consistency. It just doesn't wash. Up is not now down. Black is not now white. But yet, in your writing, something is now completely different.
Hi Max,
I always appreciate your comments, and I will respond in a moment. But to begin, a few requests.
First, save your indignant moralism, the "you're better than this" or "I'm disappointed in you" kind of rhetoric that you employ to begin and end your comment. I'm "lowering the debate" and not "accomplishing anything of value" largely because my arguments are not directed at the same place as your tired, moral outrage. Spare me. The only thing changing here, Max, is your response to what I'm writing about.
Also, while you seem to bemoan ad hominem, you also seem to have no problems employing the strategy when it serves your own needs. I am happy to disclose that I have no vested interest in this matter. I have been neither a employee of the state of Wisconsin nor a resident since 2005. Based on your comments elsewhere on my blog, I have every reason to suspect you are both, which means you have a personal financial interest in the outcome of this discussion. I will never suggest that it invalidates your arguments but it should inform readers as to the position from which you are arguing. You, on the other hand, seem to simply enjoy attacking my character, as though I'm somehow the one who lacks distance or perspective. Pretty sure I've got more distance here than you, friend.
I feel the same about Sumi as I feel about most judges and politicians. They all have egos and generally expansive views of their role in any process. If I wanted to go after Sumi personally I'd point out that her son is a union hack.
I believe that so long as the legislature attempts to comply with its own rules as cited in statute, a court has no business interfering in its internal operations. Do I believe citizens are entitled to recourse from actions that are unconstitutional? Of course. But that's not what we're talking about here. At this point, who has been harmed by passage of this bill? Nobody.
The Legislature exempts itself from the open meetings law when it conflicts with its own rules. The Legislature has rules in place that allow for no notice in special and extraordinary session. It was under Assembly and Senate Rule 93 that the conference committee convened.
Is it the place of a judge to decide whether that applies to a joint committee, when both houses of the legislature would tell you that it is their belief that it does? I don't believe so.
To suggest otherwise is to suggest that we begin casting out laws that were passed through committees where 60 people showed up but the hearing room could only accommodate 40 of them at a time, another of Ozanne's arguments. It presumes a ticky-tack role for the judiciary in the everyday affairs of how a co-equal branch of government conducts its business.
If the legislature can argue it is complying with the rules that it references in statute, no matter how messed up you or I or a judge might think those rules are, I think the court has an obligation to recognize the boundaries of its own power. To assume otherwise is to support a kind of judicial review and activism that is wholly inappropriate, one in which judges are refereeing the lawmaking process.
Where I believe we differ is that I will also defend the method by which the Democrats passed their budget last session, which included zero input on the final product and went from introduction to passage in a day. Again, awful as it might seem, the legislature complied with its rules.
Is your adherence to your belief in public hearings and open meetings and procedure consistent? Are you willing to be as critical of your own side as I have so obviously been in the five years that I've been writing? Because if there's one thing nobody out there can accuse me of, it's not being willing to take my own party to the woodshed.
I think the court has an obligation to recognize the boundaries of its own power.
Funny stuff - was it intentional?
Here's what I want to know:
“Now that I’ve made my earlier order as clear as it possibly can be, I must state that those who act in open and willful defiance of the court order place not only themselves at peril of sanctions, they also jeopardize the financial and the governmental stability of the state of Wisconsin,” Sumi said.
Isn't that really transparently showing her true colors? Clearly she believes the act will be something on par with the end of the world that the most fervent union supporters believe, right? Aren't judges supposed to put aside their personal ideology? I guess since she's seen fit to step in and give orders to parties not named in the case before her, it shouldn't be a surprise, but still... The case before her is over the process, and whether it was proper. And yet, she sees fit to offer up her opinion on how awful it would be if the law passed would actually be implemented.
Yeah, it's an interesting bit of commentary, isn't it?
Presumably, since anyone requesting a TRO has to show irreparable harm, this must be what passes for her support of that argument - a casual remark that assumes without evidence its own inherent truth. I guess it jeopardizes Wisconsin's financial and governmental stability because she says it will?
I, for one, would love hear Sumi expound on what leads her to that belief, but like many judges, she knows full well that she owes no such rational explanation to her serfs. Of course, she also seems to think she is not bound by a prior Supreme Court ruling that precludes the court from enjoining publication of a law, so who knows what the hell the rational basis is for any of her decision making. It sure doesn't seem to be precedent.
The opinion of the appellate court that passed the matter onto the Supreme Court showed about a hundred times more intelligence and rational thought than anything Sumi's shared with the world in this matter.
I don't know where this all ends up, but regardless of the outcome I suspect history will not show Maryann Sumi to be one of the legal art's finer practitioners of jurisprudence.
RS,
You point out Assembly and Senate Rule 93. Fair point.
However, a committee of conference operates under the Joint Rules, and the Joint Rules do not include any language regarding the notice of committees during a special session. As a result, §19.87(2) does not apply, but §19.84(3) still does.
But that's my whole point. If the Joint Rules are a scant framework for legislative procedure, and the Senate and Assembly both have an identical rule, and both bodies indicate that it's intended for those rules to also apply to committees made up of Senators and Representatives, who are you, or I, or a judge, to say otherwise and substitute our judgment for that of those responsible for the rules?
The argument made by the brothers Fitz is reasonable. You may not like it, but it's reasonable. And I think in the context of the lawmaking process, that is enough.
The alternative is to invite the judiciary to referee every point in the process, a role that is completely inappropriate for another branch of government to assume for itself. The court, in Goodland, previously refused to assume such a role, and for good reason. As the court itself indicated, to do so amounts to an unconstitutional invasion of the power of the legislature to determine what becomes law.
Of course Sumi, in her infinite jurisprudential wisdom, completely blew past Goodland in her initial decision. Apparently she doesn't need to explain why she's doing something that contravenes a precedent set forth by a higher court nearly 70 years ago.
I think that conservatives are crying wolf 99 times out of 100 when it comes to judicial activism, but it's sloppy work like this that fuels their suspicions.
I find it hilarious that you’re again being called a sell-out by the partisans on one side because you’re not in lockstep with their current dogma. It happens when you’re critical of Republicans and it happens when you’re critical of Democrats. You must be doing something right.
And for the record, I’ve been reading your blog for a long time (I left the sarcastic “tell me which side you’re on so I know how to feel about your ideas” comment in response to a similar situation on my first visit years ago) and I think you’ve consistently focused on policy over party when assessing the actual work of state government. It’s nowhere near as popular as the liberal/conservative pissing match that’s come to dominate American politics, but I just thought I’d let you know that some of us still appreciate a rational, results-oriented approach to analyzing this circus.
I second Jason. Here here RS for the effort and an always enlightening read!
Did the Legislature exempt itself from the Open Meetings Law when it passed the law? If not, then the Legislature's internal rules do not trump state statute, no matter what Scott Fitzgerald and Glen Grothman claim. Otherwise, the legislature could declare itself exempt from all kinds of laws without needing public hearings or gubenatorial signatures. And if the courts have no authority to block implementation of a law, how can the courts strike down a law that conflicts with the Constitution or another law that is not directly repealed or superceded by the new law? The three branches of government are supposed to provide checks and balances on each other. I'm really surprised by the large number of people who seem to believe that the Legislature is above the law and immune from court orders. There seems to be a large overlap with the people who believe that average global temperatures aren't rising.
Actually, yes, the legislature can. It's always been that way.
I hate to be redundant, because you could really read my earlier comments. But I will be succinct.
The open meetings law indicates that a legislative rule trumps state law. Senate and Assembly Rule 93 both indicate that there is no notice required of committees that meet in special or extraordinary session. It is the opinion of both the Assembly and Senate that those rules apply to committees comprised of both Representatives and Senators.
What DA Ozanne would like to do is have the judicial branch substitute its own interpretation of legislative rules in place of the legislature's intent. The Wisconsin Supreme Court, in Goodland, already ruled that the judicial branch has no proper authority in the legislative process, because to assume such power would be to interfere in the lawmaking authorities assigned to the legislative branch. The court, in Goodland, asserted that the role of the judiciary commences only once a law is passed. After all, nobody can be harmed by procedure, only after a bill is enacted.
Please don't confuse what Ozanne is doing with a legitimate challenge to the law on substantive grounds. You seem to be conflating the two in your comment, and they are distinct and separate actions.
When you refer to checks and balances, the check is that the judiciary is afforded the power to review the constitutionality of laws. The balance is that the judiciary does not have the prerogative to assume for itself a role in the actual process of making laws, which is what Ozanne wants and Sumi is foolishly trying to do.
The matter really isn't that complicated. Either you believe that the Legislature is a sovereign and co-equal branch of government, or you believe the Legislature should have to play "Mother May I?" with the courts throughout every step of the lawmaking process. Because I assure you, based on Ozanne's written complaint, that's precisely what he's asking for.
Senate Rule 93(2) only applies to notice for hearings. It does not apply to notice for executive sessions. (Joint Rules make a clear distinction between public hearings, executive sessions, and other meetings [i.e. informational hearings].) So, the conference committee and the Senate met in violation of Stat. 19.84(3), and Stat. 19.87(2) offers no cover.
Kapanke's response to being recalled was "I'd take that vote again."
Seeing as that would fix this whole mess that the governor insists we need, are the Brothers Fitz gonna let him?
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