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Copious Quantities of Casuistry

Wisconsin Attorney General J.B. Van Hollen on Thursday filed a filed a Petition for Supervisory Writ [PDF] directly to the state Supreme Court over a circuit court judge’s temporary blocking of the Budget Repair Bill. The petition is absolutely devastating to Judge Sumi’s actions with respect to the bill.

The Wisconsin Constitution clearly does not allow such actions by the judicial branch. Moreover a court may not enjoin the legislative process in order to prevent a legislative act from becoming law. When a court takes such actions it violates fundamental principles of of separation of powers and does serious and irreparable harm to our constitutional system of government. [Emphasis in the original.]

Among the back letter law and clearly enunciated jurisprudence ignored by Judge Sumi in issuing three TROs which purport to invalidate the Budget Repair Bill and enjoin it from becoming law are the following:

  • Legislators are immune to civil process during the legislative session and are therefore not subject to the jurisdiction of the Court.
  • The TROs purport to enjoin actions by parties not named in the action.
  • The last TRO purports to make a declaration of law, an act which is unlawful on its face.
  • The TROs were issued without the Court having even considered the threshhold issues as to whether it had jurisdiction to consider the claims before it.
  • The remedy sought–and granted–is not available under the Open Meetings Law.
  • DAs do not have the Constitutional authority to bring actions challenging the constitutionality of statutes.
  • The courts are have no power under the state constitution to “intermeddle” in the legislative process prior to a bill becoming law, a process which is not complete under Wisconsin law until the bill is published, the very act the TROs purport to enjoin.
  • Wisconsin Supreme Court precedent plainly states that legislation may only be invalidated where it violates the constitution beyond a reasonable doubt
  • Legislative procedures which are not constitutionally guaranteed rights are subject only to political remedies; the Open Meetings Law, a statute, is not one such and treating it as one amounts to an amendment to the state Constitution
  • Attempting to enjoin the Secretary of State is invalid under the doctrine of sovereign immunity, which the Secretary may not waive.
  • Obviously, petitions resort only to citations which help them and the other side gets to marshal whatever caselaw it can find that it believes supports its own position. The one solid ground argument apparent in this veritable cornucopia of error is the indistinct scope of the “appropriate under the circumstances” clause of the Open Meetings Law. But the sheer number of separate and distinct ways in which Judge Sumi’s TROs transgress the other unambiguous canons, laws, and precedents by which she is bound is astonishing.

    This is judicial activism in its purest and most invidious form. Results, not due process of law, quite clearly governed Judge Sumi’s every action. It matters not what one feels the proper scope of public sector union collective bargaining rights should be, this is sheer lawlessness.

Related Posts:

About Dodd
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He can kill a mime using only his thumb. He joined the staff at OTB in May 2007. Follow Dodd on Twitter.

Comments

  1. So you’re arguing that a judge can never enjoin a member of the Executive or Legislature?

    I’m not quite sure that’s true

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  2. Dodd says:

    So you’re arguing that a judge can never enjoin a member of the Executive or Legislature?

    No, I’m not arguing that. I’m summarizing a potent argument by the state AG that Judge Sumi’s attempt to do so in this case is constitutionally invalid in a plethora of ways. Whether a judge can do so in other circumstances, particularly under permissible constitutional grounds, is not addressed here.

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  3. Chad S says:

    There’s difference between the law and what someone argues in legal papers. One is the actual law. One is an argument and isn’t binding. Even for lawyers, opinions are like assholes and only the judge’s one matters at the end of the day.

    And if the judge didn’t have a legal leg to stand on, A-she wouldn’t have issued the TRO and B-the Wisconsin Gov/AG probably could have gotten a TRO of their own to block the Judge’s TRO if she was making up the law.

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  4. Chad S says:

    Dodd, please show the specific Wisconsin law which prevents a judge from doing this.

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  5. It’s worth remembering that in this case we’re talking about an allegation dealing not with the validity of the law, but with an objection to the manner in which was passed. Even if the Plaintiff’s are successful, the Walker Administration would still be able to resubmit the bill to the legislature.

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  6. Chad S says:

    On page 11 of the posted pdf is the claim which undermines itself. They’re claiming since legislative power is vested in the legislature, which is only limited by by the Constitution of Wisconsin and “recourse against legislative errors.” Violating the law which requires all legislation to be debated for 24 hours(the open secrets law) would seem to be a “legislative error.”

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  7. Chad S says:

    Doug: The judge who issued the TRO wrote that in the order. That the Wisconsin legislature should just pass it properly and the TRO would be meaningless. The only logical conclusion is that the Wisconsin GOP doesn’t have the votes to pass it again because of the reaction.

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  8. Dodd says:

    Dodd, please show the specific Wisconsin law which prevents a judge from doing this.

    That’s a joke, right?

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  9. Chad S says:

    Try again Dodd. Or is this going to be yet another post of yours where you pull something out of your ass then get pissy and defensive when caught?

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  10. I’m summarizing a potent argument by the state AG that Judge Sumi’s attempt to do so in this case is constitutionally invalid in a plethora of ways.

    So the Wisconsin AG says, and I’ll grant that the redrafting of the TRO does raise eyebrows. Of course, a judge can generally only deal with the parties in front of them, and a TRO that would have said it applies to parties or entities who weren’t parties to the lawsuit would have problem of its own obviously. In that respect, one can cast at least some blame on whoever brought the lawsuit initially for not bringing in all the proper parties.

    At the same time, in this case, assuming for the sake of argument that the open meetings law was violated, then I’m not sure why a judge wouldn’t have the authority to enter an order barring that law from going into effect (or from it being. Otherwise, we’re talking about a law that would be incapable of being enforced, which makes no sense.

    I’m expressing no opinion here about whether the open meetings law really was violated, or whether Sumi was correct in granting a TRO under these circumstances. I don’t know Wisconsin law and that’s a matter for the appellate courts. I’m going to have to read the AG’s brief I guess.

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  11. PD Shaw says:

    As I understand it, the Court of Appeals only certified two of these questions:

    “The courts are have no power under the state constitution to “intermeddle” in the legislative process prior to a bill becoming law, a process which is not complete under Wisconsin law until the bill is published, the very act the TROs purport to enjoin.”

    “Legislative procedures which are not constitutionally guaranteed rights are subject only to political remedies; the Open Meetings Law, a statute, is not one such and treating it as one amounts to an amendment to the state Constitution.”

    The second argument reminds me of Thomas Jefferson’s Bill of Religious Freedom. The legislature can’t bind future legislatures with statutes, so the last section stated:

    AND though we well know that this Assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

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  12. PD Shaw says:

    Doug, I think the argument is that judicial review is premised on invalidating an act by higher law. The Wisconsin courts have previously said that they won’t invalidate legislative acts absent a Constitutional problem.

    (In my state the state legsilature exempts itself from Open Meetings Act)

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  13. Chad S says:

    PD: or a legislative error, which technically appears to have happened.

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  14. PD Shaw says:

    What’s the difference beteween a legilative error and not complying with the Open Meetings Act?

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  15. Chad S says:

    Thats what I’m talking about. Violating the open secrets act(or at least suspicion that it was violated) would seem to fit the requirement of a “legislative error.”

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  16. wr says:

    Once again, “judicial activism” is nothing more than a decision some conservative doesn’t like. Really, after the radical activism of the Scalia-Thomas-Alito wing of the Supreme Court, it’s amazing that any conservative can cry “activism” without blushing.

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  17. PD Shaw says:

    This brief from the Court of Appeals provides what appears to be a fair and short background on the issues.

    Chad S, generally courts invalidate a statue because it is inconsistent with higher Constitutional limitations, not because it’s inconsistent with another statute. I believe the question is whether the Open Meetings Act created some Constitutional right.

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  18. Chad S says:

    I agree PD, and I think that the Judge issued the TRO to let a full hearing clear up the issue. Despite Dodd’s attempt at legal argument, she appeared to be in the right after the Governor had the law published.

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  19. Eric says:

    The petition is absolutely devastating to Judge Sumi’s actions with respect to the bill.

    Among the back letter law and clearly enunciated jurisprudence ignored by Judge Sumi… .

    But the sheer number of separate and distinct ways in which Judge Sumi’s TROs transgress the other unambiguous canons, laws, and precedents by which she is bound is astonishing.

    These are rather strained characterizations here. It could turn out she’s half-right, or mostly right. Or mostly wrong. But I don’t think you can yet make the case that her logic is “absolutely devast[ed]” by Van Hollen. While you are certainly entitled to your opinion that Sumi is wrong, the strength of her logic seems to me something that the WI Supreme Court can only decide.

    This is judicial activism of the kind we conservatives don’t like in its purest and most invidious form.

    There, fixed that for ya.

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  20. Ignoring everything else for a moment, you bullet point:

    “Legislators are immune to civil process during the legislative session and are therefore not subject to the jurisdiction of the Court.”

    It is not the legislators Judge Sumi is addressing, but the law they passed. There are no legislators, zero, none, zilch, nada, who are currently engaged in a civil procedure as a result of Judge Sumi’s TRO.

    That said, IANAL, nor have I played one on TV, and that goes double for the Wisconsin Bar.

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  21. PD Shaw says:

    Joshua, individual legislators were sued in the lawsuit; the D.A. wants $300 from each of them. The purpose of the TRO is to preserve the status quo while the controversy is resolved. The A.G. is arguing that there is no real controversy about that part of the lawsuit.

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  22. Dodd says:

    Try again Dodd. Or is this going to be yet another post of yours where you pull something out of your ass then get pissy and defensive when caught?

    I suggest you read my post, There’s a lengthy list of specific problems with Judge Sumi’s actions pulled not from my hindquarters but from the AG’s Petition. The explication of each is set forth in the Petition, which I helpfully linked for you. Perhaps if you grappled with the actual arguments being made rather than what you want them to be, you’d be better prepared to discuss them.

    Despite Dodd’s attempt at legal argument, she appeared to be in the right after the Governor had the law published.

    Again, you apparently didn’t read even the summary provided here, much less the Petition. Under Wisconsin precedents Judge Sumi is bound to follow, the courts have no authority to interpose themselves into the legislative process until it is complete. And then they may only invalidate laws which violate the state Constitution “beyond a reasonable doubt.” She did not wait until the process was finished or even rule the law was unconstitutional. She did precisely what the SupCt said she could not.

    It is not the legislators Judge Sumi is addressing, but the law they passed. There are no legislators, zero, none, zilch, nada, who are currently engaged in a civil procedure as a result of Judge Sumi’s TRO.

    As explained in the Petition, that is incorrect. Part of Judge Sumi’s actions do indeed require that the legislators be subject to her court’s personal jurisdiction, which they are not.

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  23. wr says:

    Dodd — Do you actually know anything about Wisconsin law other than what the AG is claiming? Because if you’re not an expert, you might want to wait and see what the other side has to say… Even the birthers can sound convincing until you hear the truth.

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  24. Derrick says:

    Dodd — Do you actually know anything about Wisconsin law other than what the AG is claiming? Because if you’re not an expert, you might want to wait and see what the other side has to say… Even the birthers can sound convincing until you hear the truth.

    This is my problem with this post. Law doesn’t turn on what a particular party argues about a decision only on the laws and precedents. Dodd seems to just regurgitate the AG’s points as if that settles the matter. I won’t act like I’m an expert on Wisconsin Law, but I’ll take the actions of a judge as more non-partisan than a partisan AG any day. Let’s way to hear what the Appellate Court decides.

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  25. Chad S says:

    Derrick: you nailed it. Dodd is just pushing the AG’s argument, not providing any real analysis because he wants the AG’s argument to be true. Its hackery frankly.

    Dodd: I made several real arguments, you haven’t said anything but try and repeat yourself and your belief that judges shouldn’t be able to review legislation just because the state says so. I realize that you want to help your partisan side, but it appears that in your desperation to get this out, you neglected to check your facts…again. By the standards in the Wisconsin AG’s own papers, the Judge appears to be in the right by granting a TRO when the Wis gov had the law published(thus making it eligible for review) and the DA appears to have made a prima facie on if the Open Secrets law was violated(which would qualify as a legislative error. Hence the TRO. But I’m sure you know better *rolleyes*

    Maybe in the future you should wait for a judge to declare something unconstitutional(state or federal) instead of just taking legal papers as the final word so everyone can not waste our time trying to correct yet another basic factual error that you’ve made.

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  26. Jay Tea says:

    Like wr, I’m no lawyer.

    Like wr, I don’t quite grasp the legal niceties and fine points of the arguments presented.

    Unlike wr, I don’t feel compelled to proudly proclaim my ignorance and try to turn the argument to standard stupid political talking points.

    wr, just this once — shut up and let the grownups speak. I’m actually learning things…

    J.

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  27. Dodd says:

    I made several real arguments, you haven’t said anything but try and repeat yourself and your belief that judges shouldn’t be able to review legislation just because the state says so. I realize that you want to help your partisan side, but it appears that in your desperation to get this out, you neglected to check your facts…again. By the standards in the Wisconsin AG’s own papers, the Judge appears to be in the right by granting a TRO when the Wis gov had the law published(thus making it eligible for review) and the DA appears to have made a prima facie on if the Open Secrets law was violated(which would qualify as a legislative error. Hence the TRO. But I’m sure you know better *rolleyes*

    And you still don’t appear to have read the post. You missed the part where I expressly acknowledged the fact that the AG would only marshal arguments in his favour and that the other side will do so, as well. You missed the part where I acknowledged a potential argument they might have, And you’ve now twice missed the part where I explained that she didn’t wait for the legislative process to be complete.

    Further, Walker didn’t “have the law published.” As we already knew a couple of weeks ago, the LRB did that as a mandatory, purely ministerial duty. The Petition explains in detail what I only summarized here (and which I have repeatedly noted is just a summary): That Judge Sumi’s attempt to “interrneddle” (the Wisconsin SupCt’s word) in the incomplete legislative process is invalid on its face.

    I actually read the Petition. I reviewed the caselaw from which those arguments came. You proved that you didn’t really pay much attention to the arguments when you posted this:

    They’re claiming since legislative power is vested in the legislature, which is only limited by by the Constitution of Wisconsin and “recourse against legislative errors.”

    Simply reading the entire Petition would make it abundantly clear how badly you’ve misconstrued this snippet. The third- and second-to-last bullet points in my summary give the basic reason why your grasp of this point is wrong:

    – Wisconsin Supreme Court precedent plainly states that legislation may only be invalidated where it violates the constitution beyond a reasonable doubt
    – Legislative procedures which are not constitutionally guaranteed rights are subject only to political remedies; the Open Meetings Law, a statute, is not one such and treating it as one amounts to an amendment to the state Constitution.

    Worse, the full text of the very quotation upon which your entire argument rests actually supports the AG’s argument I recapped in the latter item. It states “recourse against legislative errors, nonfeasance or questionable procedure is by political action only.” [Emphasis added.] The caselaw cited for that proposition goes on to state that “courts will invalidate legislation only for constitutional violations.” Which is what I’ve been trying to get you to grasp.

    So, rather than accusing me of not checking my facts in my “desperation to get this out,” you’d have been better served to read the entire sentence you were relying upon instead of seeing a couple of words you found useful and then assuming they gave the courts a power the full quotation quite unambiguously states they do not have.

    Moreover, even if you were correct that “the DA appears to have made a prima facie on if [sic] the Open Secrets law was violated” and that this allowed for a TRO even absent the separation of powers problem, the sixth item above renders that point irrelevant: “DAs do not have the Constitutional authority to bring actions challenging the constitutionality of statutes.” Further, as already noted, Judge Sumi has not ruled on the constitutionality of the Budget Repair Bill, a power she would have had she waited until the bill became law (which she didn’t). The DA has made a claim he had no authority to pursue and had it granted by a Judge who lacked either the jurisdiction or the power to act upon it.

    All of these points come straight out of the caselaw cited in the Petition. I’m sorry that my collating them here for easy reference constitutes “hackery” to you. But that doesn’t make it so. Clearly you want Judge Sumi’s ruling to be valid. But that doesn’t make it so, either. And, “frankly,” a better example of hackery is pulling two words out of their context and treating them as if they say the exact opposite of what they actually say to support your argument and “wast[ing] our time trying to correct yet another basic factual error that you’ve made.”

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  28. Axel Edgren says:

    “This is judicial activism in its purest and most invidious form. Results, not due process of law, quite clearly governed Judge Sumi’s every action. It matters not what one feels the proper scope of public sector union collective bargaining rights should be, this is sheer lawlessness.”

    Who cares? It’s war and I applaud anyone who breaks the rules to prevent something sick and evil from happening. We need more left-wingers with sack.

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  29. Jay Tea says:

    If this is “war,” and the law is no longer in effect, can someone please shoot Axel?

    J.

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  30. Tired of Lawlessness says:

    Nah, don’t shoot him, that would make a mess and be a waste. Since he likes anarchy so much just sell him into slavery.

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  31. sam says:

    @Dodd

    ” I’m summarizing a potent argument by the state AG that Judge Sumi’s attempt to do so in this case is constitutionally invalid in a plethora of ways.”

    You’re doing more than that — you’re endorsing the AG’s arguments in advance of their adjudication:

    “This is judicial activism in its purest and most invidious form. Results, not due process of law, quite clearly governed Judge Sumi’s every action. It matters not what one feels the proper scope of public sector union collective bargaining rights should be, this is sheer lawlessness.”

    I note the lack of the tentativeness in any of that.

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  32. Richard says:

    wr (16:52 on 4-9-11)

    You are making a typical left-wing argument in claiming Scalia-Thomas-Alito activism. You make no specific references, so no-one can challenge you on it. However at the same time you have made no case at all, simply a random assertion. In what way have Scalia, Thomas and Alito twisted your Constitution that could be described as “activism”? In what way is their decision contrary to the meaning of the US Constitution?

    You see I think I know what you are claiming, and if I am right you are completely distorting the meaning of the Constitution. However I cannot argue that until you commit to a meaning. That is the dishonest debating tactic you are using.

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  33. TMink says:

    “Once again, “judicial activism” is nothing more than a decision some conservative doesn’t like.”

    Not at all. The direction of the ruling is not the issue when the claim of judicial activism is raised. It is raised when a judge exceeds their constitutional authority.

    But then you knew that and were just attempting to confuse the issue.

    Shame on you for attempting to subvert the truth.

    Trey

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  34. Dowdy Mann says:

    Good one, Jay Tea. Lefties use the law like an iron cudgel until it doesn’t suppot what they want which is exactly why the unions are so thuggish. Axel reveals these idiots for what they are.

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  35. Richard says:

    Axel Edgren

    Sick and evil? Really? Ridiculous hyperbole is ruining any slight case you might claim to have.

    Is it really “sick and evil” to allow people to work without the unions extorting money directly from their pay? Is it really “sick and evil” to ask people to pay for just a little of their own pensions and healthcare?

    Isn’t it actually “sick and evil” to force people to pay union dues that then go straight to a political party that person might disagree with? Isn’t it really far more “sick and evil” to force taxpayers who are having a tough time, probably haven’t had a pay rise in a couple of years and probably paying much of their own health and pension costs to also pay for these people who have their guaranteed pay rises? Isn’t it rather more “sick and evil” for union bullies to try to subvert democracy and bankrupt the state? Isn’t it rather more “sick and evil” that the union thugs have threatened anyone who doesn’t absolutely support their unreasonable demands?

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  36. Richard says:

    I forgot perhaps the sickest evil: the teachers’ union bringing students to a protest to boost numbers, students who had no idea why they were there. Pupils who had not been asked their views. That is sick and evil, using children who have been placed in a person’s trusted care, that teaher absolutely abusing that trust.

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  37. sam says:

    @Richard

    “In what way have Scalia, Thomas and Alito twisted your Constitution that could be described as “activism”? In what way is their decision contrary to the meaning of the US Constitution?”

    C’mon, dude, get serious. That is the standard attack of anyone who wants to accuse somebody on the other side of endorsing judicial “activism”:

    “You want judges to impose their personal views on what the Constitution means.”

    “What the hell are you talking about? The Constitution clearly says….. Anybody who reads it another way is engaging in judicial activism.”

    “What the hell are you talking about, ‘the Constitution clealy says…’. It most certainly does not. It says….”

    Recursion ensues.

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  38. Pickwick says:

    Chad,

    Let me guess, you’re law student in Madison, right? Or did you just stay at a Holiday Inn Express last night? How does it feel to be b*tch-slapped in public?

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  39. Corwin says:

    I’m a physician in a neighboring state. I’m told-by someone very familiar with the UMW Family Practice program both the state and the American Academy are going forward with the program director for her “Get out of jail free” cards .it’s going to be very interesting.

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  40. George Purcell says:

    I’m not a lawyer, but I do work for a state legislature,

    Here’s the fundamental problem with the TRO:

    A committee hearing is not a requirement for a bill to be passed by a Legislature.

    The division of filed bills into subsets that are dealt with through the committee process is purely a practical one for a Legislature to consider the vast amount of business that comes before it. Everything from the moment the bill is filed to the moment it enters consideration in the chamber of the whole is ruled by the processes and procedures of the body. If there is a challenge to how a legislative rule is implemented the only legitimate option is to raise a point of order that the rules have been violated.

    For the purpose of any non-Legislative review, the only set of very limited questions that Sumi or another judge can legitimately raise is whether the bill was properly passed by the committee of the whole. They may not raise the question of whether that bill was properly placed before the committee of the whole because that committee uses its own rules to determine what comes before it.

    Short version: committee hearings are not necessary conditions for the passage of a bill. Because they are not necessary, any violation within the committee does not invalidate a bill once it either survives or does not receive a floor point of order.

    It is quite proper to consider Sumi’s action as “judicial activism in its purest and most invidious form” because she accrues to herself and judges the ability to review the interpretation of the rules of the legislature. Meaningful separation of powers cannot survive such a transfer of authority.

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  41. Blue Hen says:

    after the radical activism of the Scalia-Thomas-Alito wing of the Supreme Court, it’s amazing that any conservative can cry “activism” without blushing.

    Gee, you’re right. That Kelo vs. New London decision proved that didn’t it? Evvvvvvviiiilll conservative activists like Scalia enabling robber barons in government to classify someone’s home as blighted, so that they can seize it and make a sweetheart deal with big corporations, all for a big tax payoff. Wait, what? Scalia opposed it? And the ACLU activist Ginsburg cheered it on? But,but. That doesn’t fit the script! That can’t be right. All must heed the call of Axel! Make war, not sense!

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  42. Abbie Normal says:

    Chad S: One of your hangups appear to be that the law wasn’t debated for 24 hours IAW the Opens Secrets law. What’s your opinion on how Obamacare was passed?

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  43. Jay Tea says:

    Richard, you are a fool.

    You are wasting your intellect in bashing around the ignoramuses like Axel and wr when you should be debating the substantial issues with those who actually know what they’re talking about.

    I’m a legal ignoramus, like those two, but I make no pretensions to being anything more than a layman with an interest and slightly-above-average grasp of such issues. So you should let folks like me smack them around — let the small fry deal with the small fry.

    As I implied, they have pretensions to knowing what they are talking about, but they really don’t understand it. (I get pieces of it, myself.) Your attempts to explain the situation to them are doomed to fail, because they simply are incapable of grasping it. To them, it’s simple — everything boils down to left vs. right, and right is always wrong. They don’t “do” intellectual matters. So you’re trying to teach pigs to sing.

    I don’t teach pigs. I herd them. And, occasionally, I slaughter a few as needed.

    Leave the penny-ante stuff to those of us who specialize in it, and you take on the bigger brains.

    J.

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  44. Dangling Chad says:

    Chad S: One of your hangups appear to be that the law wasn’t debated for 24 hours IAW the Opens Secrets law. What’s your opinion on how Obamacare was passed?

    That was entirely different. That was a Christmas present to the American people. If if you dare disagree, then you are an enemy of the Legislature. And in case you’re wondering, this is what passes for consistency from a leftist.

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  45. PD Shaw says:

    I tend to think the Jude is in over her head. I doubt she has the staff support that a federal district court judge has. She wanted a “time out” to get a grip on the issues (the purpose of the TRO), but this action beget additional problems and the whole thing is now a mess.

    A fundamental aspect of the rule of law is that laws are available for people to know how to reconcile their behavior. This is done by publishing the law according to standardized rules. To protect her TRO, the judge ruled that the published law is not the sole source of determining applicable law, but one must scour the dockets of every courthouse in the state to determine whether a judge has ruled that a published law has not been published.

    That’s what comes from interfering with the legislative process.

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  46. PD Shaw says:

    Errr. . . that would be Judge.

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  47. Axel Edgren says:

    Is it really “sick and evil” to allow people to work without the unions extorting money directly from their pay?

    They know that if they join a certain workforce they will be “extorted”, you total idiot. How can you be voluntarily extorted? I guess you can be voluntarily raped too!

    “Is it really “sick and evil” to ask people to pay for just a little of their own pensions and healthcare?”

    No, which is why public unions in Wisconsin agreed to do that. If you were at least half the person I was, you would know that. But you are not – me talking to you is charity, appreciate it.

    “Isn’t it actually “sick and evil” to force people to pay union dues that then go straight to a political party that person might disagree with?”

    Force implies they didn’t agree to join a workforce they knew would take money from them. They have no right to complain and if they did to my face in person I would beat them to the ground and call them retarded.

    “Isn’t it really far more “sick and evil” to force taxpayers who are having a tough time, probably haven’t had a pay rise in a couple of years”

    That’s what happens when you don’t vote for the right party – all the growth goes to the already rich. Democrats and public unions are not responsible for stagnant wages and crippled private unions, so these poor tax-payers made that uncomfy bed themselves.

    “Isn’t it rather more “sick and evil” for union bullies to try to subvert democracy and bankrupt the state?”

    They didn’t bankrupt the state – a massive recession brought about by excessive deregulation did. Also, there is no correlation between crippled public unions and fiscal health. Also, too, public unions agreed to fiscally relevant concessions, they did not just want to be permanently crippled because they would support Obama in 2012.

    “Isn’t it rather more “sick and evil” that the union thugs have threatened anyone who doesn’t absolutely support their unreasonable demands?”

    Yeah, it’s always class warfare when the weak start growing some minerals and fight back.

    Richard, you might not have evil intentions, but you are ignorant to the point of maliciousness so I really don’t care about your intentions. The fact that you are talking to me as if you have anything to contribute is a far greater insult than me calling you an idiot. I hope you never change from the way you are and never die either.

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  48. Fiftycal says:

    So the crux of the ACTIVIST JUDGE is that the Legislature is subject to a law (open meetings) that it is not subject to. Seems the LAW was written to EXEMPT the Legislature from the 24 hour requirement during a SPECIAL SESSION! OOOOOOOOPS! Since the LAW the unions are so scared of was PASSED during a SPECIAL SESSION, they lose. Particulary when the conservative “non-partisan” judge won re-election. Seems the Republicans finally figured out how to play the game. They led the dims to believe that all the other votes were in and the dims had their “poll workers” in the back room creating votes. When they got what they thought was a 200 vote winning margin, the dims declared victory. OOOOOOOOOOOPS! Then the county clerk comes in with 7500 more votes for the winner. REAL HARD to “find” 7700 more ballots. GAME, SET, MATCH, WINNING!

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  49. Axel Edgren says:

    “What’s your opinion on how Obamacare was passed?”

    My opinion is that there is no obligation to answer questions from those who use the term “Obamacare” in all honesty and without a sincere apology first.

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  50. Dangling Chad says:

    “Isn’t it actually “sick and evil” to force people to pay union dues that then go straight to a political party that person might disagree with?”

    Force implies they didn’t agree to join a workforce they knew would take money from them. They have no right to complain and if they did to my face in person I would beat them to the ground and call them retarded.

    The gospel according to Axel. So you’re violent and you hate retarded people. Nice. My favorite part of the law is where the state ceases to be the paymaster of the union thugs. If unions are so wonderful, and if everything is consensual and by choice, then the union thugs should have no problems getting their protection money from their minions directly. No employer public or private should be the paymaster of the unions. If unions are as wonderful, cheerful things as you claim, then your happy, contented, punched in the face, retarded members will be crawling over broken glass to fill your pockets. And if they don’t think of it as them declaring war back.

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  51. Dangling Chad says:

    My opinion is that there is no obligation to answer questions from those who use the term “Obamacare” in all honesty and without a sincere apology first.

    Okay, here goes. I’m sorry that you’re a maladjusted violent person who hates retarded people.

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  52. Axel Edgren says:

    If unions are so wonderful, and if everything is consensual and by choice, then the union thugs should have no problems getting their protection money from their minions directly.

    Or maybe the people who join a workforce because union work has made that workforce attractive should pay up and not expect a free ride? See there is actual microeconomics involved here – not that a right-winger understands economics.

    This is why I think they are retards that need a proper spanking for whining about “forcible” union dues – they are perfectly happy to join a workforce protected from the capitalist predation by the work of unions but apparently they need a white-knight mongrel like you to defend them from this rape. They just want a free ride – they can have a knuckle sandwich instead.

    Also, I don’t hate retarded people, I just don’t want to be around them because they don’t know how to behave properly and they insult my senses. Like people whining about unions dues they knew would be “taken” from them in exchange for benefits they are happy to get. Violence it is.

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  53. Axel Edgren says:

    I’m sorry that you’re a maladjusted violent person who hates retarded people.

    No, you are not “sorry”. Stop being a passive-aggressive little goose and act like a man when you talk to others.

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  54. Thunderstixx says:

    In light of the decision by Sumi…
    What she would like is to negate the legislature and the laws it passes by simply writing a TRO…

    The Republicans should have thought of this when dealing with all the lkegal shennanigans performed by the Doyle ( Read biggest crook in the history if Wisconsin)

    If we do what she wants, why have a legislature or executive branch at all ???

    We should just let liberal judges rule us by decree !!!

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  55. Dangling Chad says:

    I’m sorry that you’re a maladjusted violent person who hates retarded people.

    No, you are not “sorry”. Stop being a passive-aggressive little goose and act like a man when you talk to others.

    Second attempt: You are the sorriest maladjusted thug I’ve encountered on the Internet. Better?
    Goose? Really?

    P.S. How’s the war going Field Marshal? Any statues of you yet?

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  56. Dangling Chad says:

    Or maybe the people who join a workforce because union work has made that workforce attractive should pay up and not expect a free ride? See there is actual microeconomics involved here – not that a right-winger understands economics.

    So unions demanding what are in effect royalties for jobs is now some sort of deep economic issue, and not a closed shop where you have to pay to play.

    This is why I think they are retards that need a proper spanking for whining about “forcible” union dues – they are perfectly happy to join a workforce protected from the capitalist predation by the work of unions but apparently they need a white-knight mongrel like you to defend them from this rape. They just want a free ride – they can have a knuckle sandwich instead.

    spanking of retards, followed by rape reference. And you’re positive that you’re not maladjusted?

    Also, I don’t hate retarded people, I just don’t want to be around them because they don’t know how to behave properly and they insult my senses. Like people whining about unions dues they knew would be “taken” from them in exchange for benefits they are happy to get. Violence it is.

    So you don’t hate retards, but they insult your senses, and you threaten them with violence Gee General, you’re right. Union types are more considerate than conservative rethuglicans

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  57. mac says:

    Axel,

    You DO know you’re going to get CCW in Wisconsin now, don’t you? Doyle was the only thing stopping it and he’s gone, so it’s coming just as certain as summer is. Once CCW is in place, just go ahead and try your beatdown on somebody carrying. I just saw a police video in Texas where Troublemaker A came up to another Peaceful Citizen B and started throwing punches. Peaceful Citizen B then pulled out his piece and shot Troublemaker A right in the face. Troublemaker A dropped like a stone and didn’t move. Peaceful Citizen B got in his car and drove off. He probably shouldn’t have done that, but all things considered I think I’d rather be Peaceful Citizen B rather than Troublemaker A..

    With your mouth and attitude you have got Troublemaker A’s outcome in your future. However, after you get that well-deserved .40 S&W between the eyes I doubt much happening on the earthly plane will be bothering you.

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  58. Axel Edgren says:

    “You are the sorriest maladjusted thug I’ve encountered on the Internet. Better?”

    Well it is obvious, skirt-raising hyperbole and it is a bit lame to use “maladjusted” as an insult, but at least it isn’t passive-aggressive.

    “Goose? Really?”

    Sometimes, instead of calling people something that will get me banned I call them geese. Just replace the word goose with c**t if you like.

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  59. Fiftycal says:

    Mac,

    Here in Texas, honest citizens are not required to report lawful self defense shootings. The shooter was probably on his way to the barber or a Tea Party meeting and didn’t want to be late. He expected our NON-UNION dept. of sanitation to clean up the street.

    As to the other guy, if he is in Wisconsin and he’s over 12 years old, I’d forward his writings to the state police to make sure he NEVER gets a concealed carry license and if he has any guns now, they should be seized before he wigs out and starts shooting school children.

    And if he doesn’t like O-BOMB-AHcare, I guess he’d like “Dear Leaders plan to seize control of the country and put the dimocratic socialist party into power forever” even less.

    OH-BOMB-AH
    Three wars SAVED OR CREATED

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  60. Ryan M. says:

    Answer me this: Why should a union have ANY rights that an individual can’t access?

    And if unions should be able to exist, then Corporations should be able to join together in cartels and use that leverage to fight back against the unions. . .
    Why do you think that the Union should be able to access withholding. .and why do you think the unions should be able to dictate who can and cannot work within a particular field of endeavor?

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  61. Ryan M. says:

    Answer me this: Why should a union have ANY rights that an individual can’t access?

    And if unions should be able to exist, then Corporations should be able to join together in cartels and use that leverage to fight back against the unions. . .
    Why do you think that the Union should be able to access withholding. .and why do you think the unions should be able to dictate who can and cannot work within a particular field of endeavor?

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  62. Dodd says:

    Short version: committee hearings are not necessary conditions for the passage of a bill. Because they are not necessary, any violation within the committee does not invalidate a bill once it either survives or does not receive a floor point of order.

    That subject is also addressed in the Petition. It was a point that had occurred to me before I reached the discussion, as well. When the whole legislature passes a bill despite a statutory process (like the OML) not having been fulfilled, it amounts to an ad hoc repeal of the statute.

    The same thing as happened every time the US Congress passed a budget that exceeded the requirements of Gramm-Rudman or Pelosi’s PayGo rules. Per the point made above, Obama’s 5-day ‘rule’ was just a campaign promise, not a statute or (so far as I am aware) codified into a Congressional Rule, so the fact that it was mostly honoured in the breach was not in the same category.

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  63. Polybius says:

    It seems to me the purpose of an open meetings law is to make sure there is a chance for everyone to debate whatever issue is at hand. Given that half the deadbeat population of WI was out in the streets for days over this issue there cannot be a serious argument made that people weren’t given plenty of time to debate the issue and make their wishes known. The Democratic legislators don’t get to run away and eschew debate in an attempt to delay the vote or extort concessions and then complain there was not enough debate. And yeah, I am sure the protestors would have liked to have been allowed to flood the chamber and stop the vote. I am pretty sure that is not what the open meetings law is for either.

    Lawyers will lawyer but reasonable men have moved on. The issue of greater concern to me and most people is how are the teachers going to be punished for walking out on their students and for openly committing fraud with their fake medical excuses etc… I am also concerned about how parents and students who did not go along with the union position will face reprisals in the classroom and elsewhere.

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  64. SteveM says:

    “if the judge didn’t have a legal leg to stand on, A-she wouldn’t have issued the TRO”

    There’s an imbecile born every minute.

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  65. punditius says:

    Looks like everybody is just blowing right George Purcell’s informed observations about the nature of legislative actions.

    But I read them, and he’s absolutely correct.

    That this judge’s actions were absurd is apparent to any dispassionate person with an understanding of American law and legal history.

    Dodd, I’ve read through a lot of these comments & your responses, and you have a lot more patience than I would with people who evidently don’t even know how to read.

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  66. pnw6869 says:

    There seem to be a fairly large number of commenters opining of the legal issues who are self admittedly not lawyers–

    while I think lawyers and journalists are both egregious carbuncles on the ass ot the populace, I do defer to lawyers when it comes to talking about the law.

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  67. b says:

    So Chad, I guess they will just have to repass the law. Why are you getting so exercised again?

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  68. nofreelunch says:

    There are generally two kinds of liberals. The first kind, numbering in the thousands, are Power Seekers. Power Seekers, without exception are liars, who would sell their mothers, and their country down the river for short term gains of personal power. The second kind of liberal are the DUPES, numbering in the millions, people easy to fool, who believe the lies of the Power Seekers.
    I don’t sense any Power Seekers on this thread.

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  69. Russ says:

    That subject is also addressed in the Petition. It was a point that had occurred to me before I reached the discussion, as well. When the whole legislature passes a bill despite a statutory process (like the OML) not having been fulfilled, it amounts to an ad hoc repeal of the statute.

    I’m no lawyer, but I read the PDF and one thing I took away from it was that the actions of one session of the legislature cannot bind the actions of a future session, as that would in effect give an act of the earlier session Constitutional power, or weight, or….

    I’m sure I could have phrased that better.

    I don’t know if they intended to argue it, but I took the argument to mean that the Open Meetings law is non-binding on the state legislative process.

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  70. […] & THE DEATH OF THE RULE OF LAW By Greg Ransom, on April 10th, 2011 “This is judicial activism in its purest and most invidious form. Results, not due process of … HT […]

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  71. TJ says:

    Steve says –

    ““if the judge didn’t have a legal leg to stand on, A-she wouldn’t have issued the TRO”

    There’s an imbecile born every minute.”

    How right you are, Steve. There is nothing to prevent a judge from wrongly issuing a TRO. This activist Sumi knows that she is in no danger of of any punishment for doing so.

    It is clear to me that Sumi is a part of the Madison liberal enclave. Sumi had to issue the TRO or risk being expelled from the liberal cocktail circuit.

    If the people were truly as aggravated as they should be by this blatant partisan TRO, they would demand Sumi’s removal.

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  72. wr says:

    Jay Tea at 1:34: wr, just this once — shut up and let the grownups speak

    Jay Tea at 7:16: If this is “war,” and the law is no longer in effect, can someone please shoot Axel?

    Thank you, Jay, for illustrating exactly how you think a grownup speaks. You may go back to your playpen now.

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  73. Dodd says:

    I’m no lawyer, but I read the PDF and one thing I took away from it was that the actions of one session of the legislature cannot bind the actions of a future session, as that would in effect give an act of the earlier session Constitutional power, or weight, or….

    I’m sure I could have phrased that better.

    That’s a fair summation. The short version is that, in our system of government, no session of a legislature has more power than any other, past or future. Thus, any session can undo what it or another has done.

    I don’t know if they intended to argue it, but I took the argument to mean that the Open Meetings law is non-binding on the state legislative process.

    Not quite. It’s susceptible to a point of order (or other political action). But, as I said above, because it’s not a Constitutional requirement, when the body as a whole doesn’t enforce it, it amounts to ad hoc repeal. The power to enforce it vests solely in the legislature–with, of course, ultimate recourse lying with the voters.

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  74. Tryptic says:

    The best thing about the process of salvaging Wisconsin is seeing how much it *hurts* intellectual piglets like “Axel” and “Chad”.

    It’s like watching a stake being driven through their un-dead hearts. And the fact that it’s taking place in a city named Madison is such delicious irony.

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  75. Jay Tea says:

    wr, I’m talking to you so you will stop interrupting the grownups. I figure that if you talk to me, you will stop bothering those who know what they’re talking about.

    J.

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  76. Salviati says:

    Funny that, after that last resounding counterblow from Dodd, Chad is no longer to be seen…

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  77. Weber says:

    The Republican leadership doesn’t want a do-over. They no longer have the votes to pass the bill in its original form.

    They’ve succeeded at marginalizing themselves and driving moderates to the political left. The legislative recalls will seal the deal — at least until we can force Walker into a recall.

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  78. buck says:

    Van Hollen’s argument is about as “devastating” as everything else he does. The man has about as much legal credibility as Bernie Madoff. Dodd failed to notice a basic point. The “legislation” is not being enjoined from enacting a law–it’s being enjoined from enforcing a law that was never enacted. If there was no legal vote on the bill–which is what the argument is–the bill was never passed and there is no law to prevent by judicial fiat. This is not exactly a difficult constitutional concept to grasp–unless you’re Van Hollen (or Dodd, apparently).

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  79. Aaron G says:

    On page 11 of the posted pdf is the claim which undermines itself. They’re claiming since legislative power is vested in the legislature, which is only limited by by the Constitution of Wisconsin and “recourse against legislative errors.” Violating the law which requires all legislation to be debated for 24 hours(the open secrets law) would seem to be a “legislative error.”

    A previous legislative majority cannot bind a future legislative majority. If this violated open meetings law, then the legislative majority effectively repealed it. There’s a cannon for this (but I don’t remember what it’s called). Surely the sheer amount of law created over the past 150 years has created contradictions in the law. Any contradiction is overridden by the latter statute.

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  80. Richard says:

    Axel Edgren

    “They know that if they join a certain workforce they will be “extorted”, you total idiot. How can you be voluntarily extorted? I guess you can be voluntarily raped too!”

    So it’s OK To extort money from people because they want to become teachers? To extend your metaphor, if you told a woman you were going to rape her if she leaves her house then if she leaves her house that rape is voluntary. You think others are the sick, evil ones?

    “If you were at least half the person I was, you would know that.”

    Why? For a start this is still one of the problems the unions had, and still a complaint of many of the protesters.

    “Force implies they didn’t agree to join a workforce they knew would take money from them. They have no right to complain and if they did to my face in person I would beat them to the ground and call them retarded.”

    No. Force implies that they do so against their will. That they choose the profession is irrelevant. See the violence inherent in the leftist?

    “That’s what happens when you don’t vote for the right party – all the growth goes to the already rich. Democrats and public unions are not responsible for stagnant wages and crippled private unions, so these poor tax-payers made that uncomfy bed themselves.”

    Balls. There was no party to vote for that would have helped growth, as both want big government. The rich are not the problem unless they get their money from government. It is government interference that is the ongoing problem (worse now with the Democrats in the White House and holding the Senate) and government forcing lenders into loaning money to people who couldn’t pay that were the specific, local problem. Oh, that was largely caused by Democrats too, although the Republicans helped.

    “They didn’t bankrupt the state – a massive recession brought about by excessive deregulation did. Also, there is no correlation between crippled public unions and fiscal health. Also, too, public unions agreed to fiscally relevant concessions, they did not just want to be permanently crippled because they would support Obama in 2012.”

    The deals they want will bankrupt the state. Why is irrelevant to that point. The recession (actually caused by poor and excessive regulation, not by deregulation) restricts the state budget, it does not mean the budget is insufficient for reasonable needs. It is unreasonable demands that will bankrupt the state.

    “Yeah, it’s always class warfare when the weak start growing some minerals and fight back.”

    So it is the police who are weak, not an owner of a small business? It is the mass of union thugs who are weak, not the children of a legislature. You truly are sick and evil.

    “Richard, you might not have evil intentions, but you are ignorant to the point of maliciousness so I really don’t care about your intentions. The fact that you are talking to me as if you have anything to contribute is a far greater insult than me calling you an idiot. I hope you never change from the way you are and never die either.”

    Wow. You seem to sail by the facts, completely ignored reality, decided that no-one is allowed to do what they want unless they pay your violent little stooges who will then pay to elect those that promise them the world on someone else’s tab (and thus drive the state and country to bankruptcy) and I am the one that is malicious? I am the one that is an idiot?

    I think you are indulging in some typical leftie projection here. You need a bit of introspection (www.dictionary.com might be of some help).

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  81. Richard says:

    P.S. On the regulation/deregulation issue there is one area where lack of enforcement of existing regulation and over-reliance on markets self-regulation contributed to the financial problems. That was important, and made the bad debt problems spread more quickly and more widely. However it was not the underlying fault. The real problem was having too many people with debts they could not pay. Thanks for that, Fanny and Freddie. Thanks Barney Frank. Thanks ACORN. I could go on. There is only one person I know of who tried to do anything about it, and ironically that was GWB, the big-government enthusiast. He was prevented by Democrats in Congress.

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  82. Grant says:

    Just to summarize for those that haven’t understood:

    1. A temporary restraining order (“TRO”) or “injunction” should only be granted, under WI (and many other) laws, when it appears that the party seeking the injunction is likely to prevail on the merits.

    2. The merits of this issue were: did the passing of the Collective Bargaining Law (CBL) violate the Open Meetings Law (OML).

    3. The problem with the merits is that the “Open Meetings Law,” because it is a law, and not a portion of the WI constitution, is not binding on the current legislature —> even if the passage of the CBL violated the OML, the OML is not a rule of a “higher order” like a constitution, it doesn’t “trump” the way you pass laws, and therefore cannot be held against the legislature.

    3a. A side issue that was been pointed out is that you didn’t need a meeting a all to pass the CBL, and so if you didn’t need ANY meeting, you certainty didn’t need an OML compliant meeting.

    3b. A final issue is that even if the OML was violated, the law does not provide for the remedy requested, and a Judge doesn’t have the power to just make up a remedy.

    4. In additions to the problem on the merits – which certainly IS devastating to the TRO – there are procedural problems, namely:

    4a. The DA doesn’t have the legal ability to sue on this particular issue (“lacks standing”) – this is the same as I’m not allowed to sue a company because they broke a contract with my neighbor – I need a particular relationship with the opposing party to have the right to sue; and

    4b. The Judge took liberties over the rights of parties which she does not have legal authority (jurisdiction) over in this case.

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  83. Jim says:

    Another point worth mentioning is that the legislature was in special session. And different rules apply to special sessions. For instance, Senate Rule 93 states that in special session posting a notice on the Senate Bulletin Board is sufficient notice to comply with open meeting rules. That notice was so posted. If a Senator had a problem with that he of course would have been free to voice his concern and raise a point of order from the Senate floor. None of the Senators present did so.

    The Wis. Constitition very specifically says that weas chamber shall have the absolute power to make it own rules and procedures anmd they are not subject to review by the courts.

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  84. Dodd says:

    Funny that, after that last resounding counterblow from Dodd, Chad is no longer to be seen…

    You noticed that, too?

    Dodd failed to notice a basic point. The “legislation” is not being enjoined from enacting a law–it’s being enjoined from enforcing a law that was never enacted. If there was no legal vote on the bill–which is what the argument is–the bill was never passed and there is no law to prevent by judicial fiat. This is not exactly a difficult constitutional concept to grasp–unless you’re Van Hollen (or Dodd, apparently).

    For reasons already explained in detail above, not one word of this is correct. There was a bill, it became law according to the processes set forth in Wisconsin law, and Judge Sumi attempted to insert herself into that process before it was complete without any authority to do so.

    I’m sorry you don’t like the facts, but your wishes make neither horses for you to ride nor plainly stated precedents inoperative.

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  85. Mt Top Patriot says:

    The democratic party is nothing but a big money laundering syndicate. The unions are the bag runners and leg breakers, Sumi is the paid off public official, it all comprises an outfit of organized crime no different than the racketeering of the Mafia.

    It really doesn’t matter what a tyrant like Sumi says or does, it is the peoples will that matters.
    Sovereign power lies within the people, not unions, not judges, not politicians of any stripe. The will of the people of Wisconsin trumps the grievous trespasses on constitutional law Sumi and the unions attempted to impose for their own benefit. If Sumi’s judicial activism was in the best interest of honoring her oaths of office and representative constitutional republican form of government, ie, the will of the people, her acts of treason would stand on merit and principle.

    Mr. Dodd lays out the lack of merit and the abuses of power a tyrant such as Judge Sumi is guilty of. Really that of her sponsors are guilty of. Mob rule is no substitute for the Rule of Law, of all people it is a Judge who is trusted to protect the law and the people from abuses of power. Sumi is guilty of far more than creative interpretation of the law, she is guilty of selling out on every concept, idea, principle, virtue, and honesty our rule of law was created for.

    Blind fold of Justice?
    Sumi used the Hubble Space Telescope to find ways to circumnavigate the law.

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  86. […] to try and prevent publication of the bill. Dodd Harris finds the petition’s arguments “absolutely devastating.” It will be interesting to see how the Dane County DA who initiated this litigation […]

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  87. Slartibartfast says:

    maybe the people who join a workforce because union work has made it possible for public employees to stack sick leave should pay up and not expect a free ride

    That’s a mighty fine job you have there; it’d be a shame if anything happened to it.

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  88. Slartibartfast says:

    …and: FTFY

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  89. Think38 says:

    In short, Judge Sumi:

    1. Heard a complaint by a party that does not have standing to bring the complaint;

    2. Issued a rulling on an issue that prior Wisconsin Supreme Court cases clearly and unambiguosly held that her court does not have power to adjudicate.

    3. In issuing her order, granted a remedy that prior Wisconsin Supreme Court cases clearly and unambiguously held her court does not have the power to grant.

    Striking in all of this is the complete lack of writing by the plaintiffs or the court (or any commentator here) to explain why the prior rulings of the Wisconsin Supreme Court on these issues does not apply. As a reminder, as a county district court, Judge Sumi is obligated to follow rulings by the Wisconsin Supreme Court. Clever judges find ways to distinguish the matter in front of them from the precident ; Judge Sumi didn’t even attempt to do so. I wonder why…

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