Wisconsin Judge Issues Injunction Against Implementing Collective Bargaining Law

Not surprisingly given the disputes that had arisen over exactly what her original injunction actually covered, a Wisconsin Judge has issued a second injunction barring any aspect of the law from being implemented:

Madison – A Dane County judge Tuesday blocked the state from implementing Gov. Scott Walker’s collective bargaining measure.

“Further implementation of the act is enjoined,” said Dane County Judge Maryann Sumi.

Sumi noted her original restraining order issued earlier this month was clear in saying that the state should not proceed with implementing the law. The Walker administration did so after the bill was published Friday by a state agency not included in Sumi’s earlier temporary restraining order.

“Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear,” she said.

But minutes later, outside the court room, Assistant Attorney General Steven Means said the legislation “absolutely” is still in effect.

Assembly Minority Leader Peter Barca (D-Kenosha) balked at that statement.

“It’s just startling that the attorney general believes you should not follow court orders anymore,” he said.

The restraining order is in effect until Friday, when more testimony will be taken. At that point, Sumi could rule on whether the law should be suspended for a longer period.

I’ll confess to being somewhat astounded that the Attorney General would think that the state can simply ignore this injunction without applying for further relief from an appeals court to get the order stayed. Additionally, what makes this entire episode even more odd is the fact that we’re merely dealing with a Temporary Restraining Order here:

Sumi noted she has not yet found that lawmakers violated the open meetings law, but noted the Legislature could resolve the matter by passing the bill again. Andrew Welhouse, a spokesman for Senate Majority Leader Scott Fitzgerald (R-Juneau), said there are no plans to try to pass the bill again.

Additionally, the original TRO is currently under appeal. In the end, one wonders why Walker and the Wisconsin Republicans don’t simply resubmit the bill and hold the meetings in compliance with the Open Meetings Law. In the end, nothing, not even a repeat of the runaway Senate Democrats, could stop them from passing the bill now that it’s been stripped from the underlying budget bill (at least based on my understanding of the relevant rules in the Wisconsin Senate). Like I said, it’s all just a very odd situation.


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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. James Young says:

    Aren’t you at all disturbed by a judge enjoining publication of a law, from a separation-of-powers perspective? Imagine the hue and cry if some Republican Federal judge had enjoined BarryCare on some conjured-up procedural argument?

  2. Chad S says:

    The only explanation for why they don’t just pass it again is that they don’t think that they have the votes anymore for it.

  3. Chad S says:

    James, Judges(state and federal) enjoin laws all the time before a full hearing on the merits.

  4. James,

    There seems to be at least a fairly good argument that the law was implemented in violation of the law, which is the basis (apparently) for the injunction. Additionally, it is not at all uncommon for a law’s implementation to be enjoined pending a final ruling on the merits, you know that as well as I do. Finally, if the Governor or the Attorney General dispute the injunction there is a process to challenge it; it is inappropriate for them to simply choose to ignore it.

  5. Wiley Stoner says:

    The judge’s decision prevented the Secretary of State from publishing the law. That is not how laws are published in Wisconsin. The SOS had alread set a date for publication. Those charged with publishing the law did so on time. The judges lack of knowledge concerning legislative proceedure indicates this is a political decision on her part. Go figure.

  6. Jay Dubbs says:

    James, you realize that this happens all the time right? It is hardly even unusual.

    I am surprised the judge was so calm. Most of the judges I now would have instructed the State’s lawyer to come to the Courtroom with a checkbook . . . or a toothbrush.

  7. Wiley Stoner says:

    I wonder if this judge (?) is having oral sex with Richard Trumka? She supplying the oral. He is supplying the Richard.

  8. Jay Dubbs says:

    Wiley, do you understand the concept of a temporary restraining order.

    However, to further my comment above, I don’t think the Judge will stand for the too cute by half tricks that are being played.

    “”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,” Judge Sumi said.

  9. Patrick T. McGuire says:

    I am not a lawyer by any means, nor do I play one on TV, so I need some help here. I find it hard to understand how a “county judge” could dictate to the state government. To me that would be like Sherrif Joe Arpaio telling ICE to perform an anatomical impossibility.

    And if Gov. Walker decides to ignore the court TRO, how is that any different than Obama ignoring a finding of unconstitutional for Obamacare?

  10. LawAndOrder says:

    Why did the attny general ignore the court order; because we are no longer a country under the rule of law. That ended when we started torturing people, and suspended Habius Corpus, and started spying on our people without probable cause; the ends justify the means. Now the contagion is spreading, but fear not, if you are not doing anything wrong you have nothing to worry about.

  11. Jay Dubbs says:

    Pat – A county judge in Wisconsin is the equivilent of a U.S. District Court in the Federal system. If the Gov. were to ignore the Court’s rulings, he would risk a contempt citation, up to and (most likely) including jail. As for the ACCA decision, that judge specifically did not rule that his stop the act from being implemented (after the Justice Department sought clarification.)

    It is all part of the checks and balances that have worked more or less for 225 years.

  12. Stan25 says:

    I guess it is all right for the Obama Administration to ignore the courts’ blocking of ObamaCare, continue to implement the law as they see fit and ignore an order to lift the drilling moratorium in the Gulf of Mexico. Well if you are a Democrat anything, the will of the people, through elections and the legislative process are not for them and they can do as they damn well please

    As far as I know, the process in Wisconsin was legal and aboveboard. It is the whiny and pissy Democrats and their union bosses that are having the conniption fit and falling over backwards in it.

  13. Jay Dubbs says:

    Stan – The Courts have not blocked the ACHA (aka Obamacare). If I am wrong, could you please provide the appropriate citation?

  14. tom p says:

    The comparison w/ the health care act only proves the stupidity of some commentators here…

    Guys, here is a clue: if you can not tell the difference… STFU!!!!

  15. tom p says:

    PS… never mind.

  16. tom p says:

    and wasn’t it only a couple days ago when Doug and Dodd were saying that publication of the law meant nothing?

  17. MarkedMan says:

    It seems now (according to TPM) that the Governor’s office is saying that the Judge’s clarification doesn’t mean anything has changed and the law is still in effect. This is getting surreal. Is it the Wisconsin Republican’ Party’s position that they don’t have to follow a court order? They are not filing motions, they are not trying to get relief from a higher court, they are simply saying they are not going to listen to her? This is what Republican’s stand for?

  18. Patrick T. McGuire says:

    @Jay Dubbs,

    Thanks, I appreciate the clarification. In Arkansas, where I live, we have county judges but their role is an administrative one rather than a judicial one so I had a hard time getting my head around this one.

  19. Tlaloc says:

    I’ll confess to being somewhat astounded that the Attorney General would think that the state can simply ignore this injunction without applying for further relief from an appeals court to get the order stayed.

    Yeah, it really seems like the AG, Fitzgerald, and Wlaker are begging for contempt of court charges. Are they trying to provoke a constitutional conflict? What would they possibly gain given that they’d almost surely lose (what with the public already abandoning them en masse)?

    In the end, one wonders why Walker and the Wisconsin Republicans don’t simply resubmit the bill and hold the meetings in compliance with the Open Meetings Law.

    Oh that’s easy- the republican legislators don’t want to touch this thing with a 100′ pole. They had to vote on it once or the party would have treated them as pariahs but I have no doubt that having seen the polling and knowing that they are facing significant recall efforts (and probably having seen Walker’s headlong run at the brick wall) they’ve told Fitzgerald they will not vote to hang themselves again. Their best hope is that something else distracts the voters, and that’s not going to happen if the thing is brought up for another vote. Plus it highlights that their first effort was potentially illegal. Walker would have to call in some huge markers to get a revote at this point and I’m not sure he has any left.

  20. wr says:

    In fairness, the AG seems to be on the other side of the issue from Walker. He was on with Rachel Maddow tonight explaining the situation…

  21. Jay Dubbs says:

    I think it is about time that the Wisc. GOP lawyers start overruling the politicians. Pissing off judges is never a good strategy. For the GOP Even if they lose in the Courts, they can just pass the law again. This current political/legal strategy makes no sense.

  22. jb says:

    wr, that was the Secretary of State. The attorney general is the one who has made some rather curious statements in direct contravention of 225+ years of settled constitutional law (statements that could easily land him in a county jail in contempt of court), and who provided a staff attorney to the Secretary of State, who then refused to represent the secretary in court and argued against his client’s expressed positions (something that the state bar should be seriously looking into).

  23. wr says:

    jb– Thanks for the clarification. I clearly got my offices confused…

  24. PD Shaw says:

    I also think that the problem appears to be the injunction is directed against the wrong party.
    The Secretary of State doesn’t publish the laws, nor implement them. The Secretary of State performs a ministerial task of setting a date, which had already been performed. See Professor Esenberg

    The role of the Secretary of State had changed, and this wasn’t picked up.

  25. PD Shaw says:

    Key graph from the above link:

    The order in Ozanne was directed to the Secretary of State. Judge Sumi held that “[t]he next step in implementation of the law would be publication of that law by the Secretary of State.” That assumption was incorrect. She then ordered that “[h]e is restrained and enjoined from such publication until further order of this court.”
    Secretary of LaFollette has complied with that order.

    But, the thing is, he had no responsibility for the law’s publication. The Legislative Reference Bureau was obligated to publish the law. It’s duty is mandatory and not something that the Governor- or the Secretary of State – can either mandate or stop. The LRB did this because the LRB had to do it. If District Attorney Ozanne wanted to stop it, he should have sued the LRB. He didn’t.

  26. MarkedMan says:

    Selective editing of her original order, ala James Okeefe, can give you a reading where she only enjoined against publication. But that’s not what she said. And in her clarification she left no doubt:

    “Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear,” she said.”

    The Repubs have decided to ignore that. This is a constitutional crisis, with the Repub position being they don’t have to obey court rulings. Very dangerous times.

  27. PD Shaw says:

    markedman, does this order not state that the Secretary of State is enjoined from publishing the law?

    For the reasons stated on the record at the March 18, 2011, hearing conducted by the Court, plaintiff’s motion for a temporary restraining order, pursuant to Wis. Stat. § 813.02, enjoining defendant Secretary of State Douglas La Follette, in his official capacity, from publishing 2011 Wisconsin Act 10, until further order of the Court, is GRANTED.

    The decision released by the judge later that day similarly indicated:

    I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10. The next step in implementation of that law would be the publication of that law by the Secretary of State. He is restrained and enjoined from such publication until further order of this court.

    Except the Secretary of State no longer publishes the laws in Wisconsin.

  28. PD Shaw says:

    Link to the decision which is the source of the second block quote: here.

  29. Tlaloc says:

    I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.

    Where in that sentence do you see a limitation to it only applying to the SoS?

    Hint: no.

  30. PD Shaw says:

    Tlaloc, you can’t enjoin non-parties to a lawsuit, you bring the lawsuit against the party you want relief against, and then that party has an opportunity to present their side of the case.

  31. Tully says:

    You can’t enjoin the universe at large. Sumi failed to name who she was enjoining other than the SoS, who had already done what she enjoined him from doing. There is no provision in WI law for the SoS to undo setting the date — that cat was already out of the bag. Sumi enjoined the wrong party.

    It’s also very questionable that Sumi has the legal authority to rule on some of these issues before the bill actually becomes law.

  32. PD Shaw says:

    I should add that not naming the legislative agency charged with publishing the laws may have either been a mistake or strategery. In most states, including Wisconsin, courts are not authorized to enjoin the publication of laws because doing so interferes with the internal affairs of a co-equal branch. They only enjoin the enforcement of laws once final. By not going after the legislative agency they may be trying to avoid this prohibition. Personally, I don’t think it solves the problem for the courts to use a third co-equal branch, but I assume the appellate court will straighten this out shortly.

  33. wr says:

    PD Shaw — For all your parsing of legal language — and hey, I thought all you conservatives were against that kind of game — you keep ignoring the sentence you’ve quoted at least once:

    I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.

    It’s not all about the publication. It’s about putting the law into effect, which the Republicans have started to do anyway in clear violation of the order. This isn’t just contempt of court, it’s contempt for the rule of law.

  34. PD Shaw says:

    First of all, I’m not a conservative.

    Second, the rule of law requires all parties against whom an injunction must run to be brought into the lawsuit. What kind of rule of law enjoins people under threat of contempt who don’t get their day in court?

  35. mantis says:

    I wouldn’t jump all over PD Shaw if I were you. He’s correct.

    And he’s hardly a conservative. Have you not ever read his posts?

  36. PD Shaw says:

    “Always a Whig in polics.”

  37. Bruce Barron says:

    Governor Scott Walker has done the right in implementing this law on Mar.31
    The only thing “crystal clear”[ her own words ] in Judge Sumi’s injunction is that there is nothing “crystal clear” about her reasoning since she gives none.
    This case should have been decided then and there.Apparently she cannot reason!
    Furthermore there is evidence that she should have recused herself.
    She should be arrested for interfering with the implimentation of Constitutional State law and operation of the State Government.
    The Governor does not have to follow an illegal injunction which has no reason to it.The Governor doesn’t even have to follow a ruling of the SCOUS if it can be shown to be unconstitutional.If the Governor can do this he can certainly ignore this injunction.
    This Judge has interfered with the powers of the State Constitution. She took and oath to uphold the State Constitution and its laws and the US Constitution.This case is none of the courts business or any other court.She should be prosecuted for perjury for failing to uphold her oath.
    To follow her injunction would be against the State Constitution.

  38. Publius says:

    I read Judge Sumi’s original opionion and it did not, in fact, enjoin the law. My guess is that her ability to write an injunction is as faulty as her legal reasoning. The law will be affirmed, if not by the Wisconsin Supreme Court, then by the Senate re-passing the bill. Since the latter is faster and simpler, I don’t understand why they don’t do that.

  39. MarkedMan says:

    Really Publius? You read the original opinion? Then maybe you can help me by providing a link. I’ve been unable to find the text online.