Thursday, March 31, 2011

Courtroom antics abound!

DKWalser said...(from

@Canuck: There are three legal arguments why what the trial court did in issuing its temporary restraining order (TRO) was "unusual".

First, the Wisconsin Supreme Court ruled that NO state court has the authority to prohibit the publication of a law. The state's petition to appeal the TRO addresses this first argument as follows:

"In Goodland, 243 Wis. at 468, the court cautioned trial courts:

If 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 it may not do."

In summary, the 1st argument is that it was unusual for the trial court to issue a TRO for the purpose of determining whether or not the trial court should do that which the state's highest court has already said no trial court can do -- prohibit the publication of an act.

The second argument was addressed by the Wisconsin Supreme Court inState ex rei. La Follette v. Stitt, 114 Wis. 2d 358,
364-68, 338 N.W.2d 684 (1983):

"… [T]he Court declared that courts will not "review legislative conduct to ensure the legislature complied with its own procedural rules or statutes in enacting legislation" and "will not intervene to declare the legislation invalid."" Note: This paragraph, other than this note, is from the DOJ's petition.

In summary, the second argument is similar to the first. The state's highest court has already ruled that a court may not invalidate a law merely because the law was passed in violation of a rule or statute. The alleged violation of the open meetings law CANNOT justify invalidating the law – so, why should the judge issue a TRO to review whether or not to invalidate the law because of the alleged violation of the open meetings law?

The third argument is that the court has no authority, based on an alleged open meetings law violation, to order the Secretary of State to do anything. The open meetings law does NOT apply to the Secretary of State. Even if it did, the Secretary of State did not attend the meeting that was held (allegedly) in violation of the open meetings law. So, how can the Secretary of State be a defendant in the suit brought by the county DA?

The Secretary of State, acting in his official capacity, benefits from sovereign immunity and courts have no authority over the Secretary of State for an alleged violation of a law unless that immunity has been affirmatively waived by the state. (Some laws specifically allow suits to be brought against state officials. That's the exception, not the rule.) The open meetings law does not waive the Secretary of State's sovereign immunity. The law provides for remedies that may be taken against members of a legislative body that violate the law, but it does not grant the courts ANY authority over an administrative (as opposed to legislative or judicial) official or agency.

In summary, since the court had no personal jurisdiction over the Secretary of State, it strikes some as unusual for the court to presume to issue a TRO covering the Secretary of State.

Anne speaking here. The judge has no jurisdiction, she cannot enjoin the Secretary of State from performing his administrative duties in any way, but to issue a temporary restraining order was overstepping her authority and overreaching. I think the reason that the reason Fitzgerald is not calling for a new vote is because the rule of law needs to be reestablished here in WI. With the liberal judges making unreasonable demands and ruling outside of their jurisdiction, the GOP is hoping the Supreme Court of WI will rule in their favor and reprimand the liberal judges, to they do not attempt this again. It is not an easy job reestablishing the "rule of law" because the liberals have derailed it for their own purposes for a very long time. But without a "rule of law" in this land that applies across the board, there is no "rule of law" period. The Democrats do not get to pick and choose the laws they will demand others abide by while they get to break any rule they please. It will be a long fight.

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