State ex rel. Ozanne v. Fitzgerald

2011 WI 43, 798 N.W.2d 436, 334 Wis. 2d 70

• Court: Wisconsin Supreme Court
• Decided: June 14, 2011
• Docket: Nos. 2011AP613-LV, 2011AP765-W
• Status: Published

Opinions

The Court entered the following order on this date:

¶ 1. This court has pending before it a certification by the court of appeals in a petition for leave to appeal a non-final order and accompanying motion for temporary relief in Case No. 2011AP613-LV (L.C. #2011CV1244), pursuant to Wis. Stat. § (Rule) 809.61. The petition for leave to appeal a non-final order and motion arise out of a Dane County Circuit Court case in which Dane County District Attorney Ismael Ozanne alleged violations of the Open Meetings Law, Wis. Stat. § 19.81, et. seq., in connection with the enactment of 2011 Wisconsin Act 10 (the Act), commonly known as the Budget Repair Bill;

¶ 2. This court also has pending before it a petition for supervisory/original jurisdiction pursuant to Wis. Stat. §§ (Rules) 809.70 and 809.71 in Case No. 2011AP765-W filed on behalf of the State of Wisconsin and State of Wisconsin ex rel. Michael D. Huebsch, Secretary of the Wisconsin Department of Administration; Peter Barca has moved to dismiss this petition; Mark Miller and Ismael Ozanne have moved to file supplemental briefs;

¶ 3. On June 6, 2011, this court held oral argument in Case No. 2011AP765-W and Case No. 2011AP613-LV; wherein this court heard argument addressing whether the court should accept either the certification or the petition for supervisory/original jurisdiction or both; the court also heard argument on the merits of the pending matters. Based on the written submissions to the court and the oral arguments held on June 6, 2011;

¶ 4. IT IS ORDERED that the certification and motions for temporary relief in Case No. 2011AP613-LV are denied.

¶ 5. IT IS FURTHER ORDERED that the petition for original jurisdiction in Case No. 2011AP765-W is granted, State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983), and all motions to dismiss and for supplemental briefing are denied.

¶ 6. IT IS FURTHER ORDERED that all orders and judgments of the Dane County Circuit Court in Case No. 2011CV1244 are vacated and declared to be void ab initio. State ex rel. Nader v. Circuit Court for Dane Cnty., No. 2004AP2559-W unpublished order (Wis. S. Ct. Sept. 30, 2004) (wherein this court vacated the prior orders of the circuit court in the same case).

¶ 7. This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature. It is important for all courts to remember that Article IY Section 1 of the Wisconsin Constitution provides: "The legislative power shall be vested in a senate and assembly." Article IY Section 17 of the Wisconsin Constitution provides in relevant part: "(2) ... No law shall be in force until published. (3) The legislature shall provide by law for the speedy publication of all laws."

¶ 8. In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the court focused on fundamental separation of powers principles and addressed whether a court has the power to enjoin publication of a bill duly enacted by the legislature. The court first explained that "governmental powers are divided among the three departments of government, the legislative, the executive, and judicial." Id. at 466-67. The court then explained that the "judicial department has no jurisdiction or right to interfere with the legislative process. That is something committed by the constitution entirely to the legislature itself." Id. at 467. The court held that "[bjecause under our system of constitutional government, no one of the co-ordinate departments can interfere with the discharge of the constitutional duties of one of the other departments, no court has jurisdiction to enjoin the legislative process at any point." Id. at 468. The court noted that "[i]f a court can intervene and prohibit the publication of an act, the court determines what shall be law and not the legislature. If the court does that, it does not in terms legislate but it invades the constitutional power of the legislature to declare what shall become law. This [a court] may not do." Id.

¶ 9. Although all orders that preceded the circuit court's judgment in Case No. 2011CV1244 may be characterized as moot in some respects, the court addresses whether a court can enjoin publication of a bill. The court does so because whether a court can enjoin a bill is a matter of great public importance and also because it appears necessary to confirm that Good-land remains the law that all courts must follow. State v. Cramer, 98 Wis. 2d 416, 420, 296 N.W.2d 921 (1980) (noting that we consider questions that have become moot "where the question is one of great public importance ... or of public interest," or "where the problem is likely to recur and is of sufficient importance to warrant a holding which will guide trial courts in similar circumstances"). Accordingly, because the circuit court did not follow the court's directive in Goodland, it exceeded its jurisdiction, invaded the legislature's constitutional powers under Article IV] Section 1 and Section 17 of the Wisconsin Constitution, and erred in enjoining the publication and further implementation of the Act.

¶ 10. Article IV] Section 17 of the Wisconsin Constitution vests the legislature with the constitutional power to "provide by law" for publication. The legislature has set the requirements for publication. However, the Secretary of State has not yet fulfilled his statutory duty to publish a notice of publication of the Act in the official state newspaper, pursuant to Wis. Stat. § 14.38(10)(c). Due to the vacation of the circuit court's orders, there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c).

¶ 11. IT IS FURTHER ORDERED that we have concluded that in enacting the Act, the legislature did not employ a process that violated Article IX Section 10 of the Wisconsin Constitution, which provides in relevant part: "The doors of each house shall be kept open except when the public welfare shall require secrecy." The doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act. The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live. Access was not denied.¹ There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees.

¶ 12. It has been argued to the court that the legislature amended Article IX Section 10 of the Wisconsin Constitution by its enactment of the Open Meetings Law. That argument is without merit. Article XII, Section 1 of the Wisconsin Constitution establishes the requirements that must be met in order to amend the Wisconsin Constitution through action initiated in the legislature. Article XII, Section 1 requires that both houses of the legislature pass the proposed amendment in two successive sessions of the legislature, and then the proposed amendment must be submitted to the people. It is only when the people have approved and ratified a proposed amendment initiated in the legislature that a constitutional amendment occurs. Milwaukee Alliance Against Racist & Political Repression v. Elections Bd., 106 Wis. 2d 593, 603, 317 N.W.2d 420 (1982). It is beyond dispute that the Open Meetings Law, Wis. Stat. § 19.81, et seq., was not adopted by the constitutional process required by Article XII, Section 1 of the Wisconsin Constitution.

¶ 13. It also is argued that the Act is invalid because the legislature did not follow certain notice provisions of the Open Meetings Law for the March 9, 2011 meeting of the joint committee on conference. It is argued that Wis. Stat. § 19.84(3) required 24 hours notice of that meeting and such notice was not given. It is undisputed that the legislature posted notices of the March 9, 2011 meeting of the joint committee on conference on three bulletin boards, approximately 1 hour and 50 minutes before the start of the meeting. In the posting of notice that was done, the legislature relied on its interpretation of its own rules of proceeding. The court declines to review the validity of the procedure used to give notice of the joint committee on conference. See Stitt, 114 Wis. 2d at 361. As the court has explained when legislation was challenged based on allegations that the legislature did not follow the relevant procedural statutes, "this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments." Id. at 364. "[W]e will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns." Id. The court's holding in Stitt was grounded in separation of powers principles, comity concepts and "the need for finality and certainty regarding the status of a statute." Id. at 364-65.

¶ 14. The court's recent decision in Milwaukee Journal Sentinel v. Wisconsin Department of Administration, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, provides no support for the invalidation of the Act. In Milwaukee Journal Sentinel, a party contended that by ratifying a union contract the legislature also amended the Public Records Law to be consistent with Article 2/4/4 of the contract. Id., ¶ 34. In order to answer the question presented, the court reviewed the enactment of the ratifying statute to see whether Article 2/4/4 of the contract was enacted by bill and was published as Article IX Section 17(2) of the Wisconsin Constitution requires. Id., ¶¶ 22, 34. The court concluded that the legislature did not take the additional constitutionally required actions that were necessary for amendment of the Public Records Law. Id., ¶¶ 24, 35. In so doing, the court did not review whether the legislature followed its own procedural rules in ratifying the contract, and the court did not invalidate any law. The court looked only at what Article IX Section 17 required in order to cause a portion of the union contract to become law.

¶ 15. The court's decision on the matter now presented is grounded in separation of powers principles. It is not affected by the wisdom or lack thereof evidenced in the Act. Choices about what laws represent wise public policy for the State of Wisconsin are not within the constitutional purview of the courts. The court's task in the action for original jurisdiction that we have granted is limited to determining whether the legislature employed a constitutionally violative process in the enactment of the Act. We conclude that the legislature did not violate the Wisconsin Constitution by the process it used.

¶ 16. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley and Justice N. Patrick Crooks concur in part and dissent in part from this order.

1 The transcripts of the hearings before the circuit court were filed with this court as part of the appendices accompanying the various motions and petitions filed herein.