Copious Quantities of Casuistry
Judge Sumi's TROs arise from a veritable cornucopia of error.
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.