Chuck Tennessen, a 35-year veteran teacher from Mineral Point, stands silent holding a shame sign moments after the Wisconsin Supreme Court came down with its ruling. Credit: Tom Lynn

By Patrick Marley and Don Walker of the Journal Sentinel

Madison - Acting with unusual speed, the state Supreme Court on Tuesday ordered the reinstatement of Gov. Scott Walker's controversial plan to end most collective bargaining for tens of thousands of public workers.

The court found that a committee of lawmakers was not subject to the state's open meetings law, and so did not violate that law when it hastily approved the collective bargaining measure in March and made it possible for the Senate to take it up. In doing so, the Supreme Court overruled a Dane County judge who had halted the legislation, ending one challenge to the law even as new challenges are likely to emerge.

The changes on collective bargaining will take effect once Secretary of State Doug La Follette arranges for official publication of the stalled bill, and the high court said there was now nothing to preclude him from doing that. La Follette did not return a call Tuesday to say when the law would be published.

The ruling came on lines that have become familiar in recent years for the often divided court.

The majority opinion was by Justices Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler. The other three justices - Chief Justice Shirley Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks - concurred in part and dissented in part. Abrahamson's dissent was particularly stinging as she upbraided her fellow justices for errors and faulty analysis.

Republicans who run the Assembly were prepared late Tuesday to insert the collective bargaining changes into the state budget if the court hadn't acted. But the court's ruling just before 5 p.m. spared them from again having to take up a contentious issue that spawned weeks of massive protests earlier this year.

The court ruled that Dane County Circuit Judge Maryann Sumi's ruling, which had held up implementation of the collective bargaining law, was in the void ab initio, Latin for invalid from the outset.

"The court's decision ...is not affected by the wisdom or lack thereof evidenced in the act," the majority wrote. "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."

The court concluded that Sumi exceeded her jurisdiction, "invaded" the Legislature's constitutional powers and erred in halting the publication and implementation of the collective bargaining law.

But Abrahamson wrote that the order seems to open the court unnecessarily to the charge that the majority has "reached a predetermined conclusion not based on the facts and the law, which undermines the majority's ultimate decision."

The majority justices "make their own findings of fact, mischaracterize the parties' arguments, misinterpret statutes, minimize (if not eliminate) Wisconsin constitutional guarantees, and misstate case law, appearing to silently overrule case law dating back to at least 1891," Abrahamson wrote.

GOP lauds ruling

Republicans praised the majority decision.

"The Supreme Court's ruling provides our state the opportunity to move forward together and focus on getting Wisconsin working again," Walker said in a one-sentence statement.

"We didn't violate any rules," said Assembly Speaker Jeff Fitzgerald (R-Horicon). "We upheld the constitution all the way through the passage of Act 10. We feel great about the decision."

Sen. Alberta Darling (R-River Hills) praised the high court and disparaged Sumi for her earlier rulings, saying she "stepped all over the people of Wisconsin."

"You think of all the chaos and discord and acrimony that's gone on in this Capitol as the result of her decision and just doing what she wanted, which she had no cause, no basis, no rule of law," Darling said. "She just did what she wanted for political reasons. To me, it was despicable."

But Democrats decried the Supreme Court decision for finding lawmakers do not have to follow the open meetings law. They said they would move to amend the state constitution to make them subject to the meetings law, a process that would take years and be difficult to start while they remain in the minority.

"The majority of the Supreme Court is essentially saying that the Legislature is above the law. It's now clear that unless the constitution is amended, the Legislature is free to ignore any laws on the books," said a statement from Assembly Minority Leader Peter Barca (D-Kenosha).

During the meeting at the heart of the case, Barca had screamed at Republicans to halt the meeting because he said they were violating the open meetings law. They ignored him as cameras recorded the dramatic confrontation.

Tens of thousands of public workers and their supporters demonstrated at the Capitol in February and March to oppose the collective bargaining changes. They have returned in smaller numbers this week as the Legislature prepared to take up the state budget, and thousands of people rallied on the Capitol lawn shortly after the court issued its order.

"I had a sickening feeling in my stomach," said Barbara James, a Madison middle school teacher who demonstrated at the Capitol.

Lawmakers' stance on collective bargaining triggered efforts to recall state senators, and elections are scheduled this summer for six Republicans and three Democrats.

The legal fight over Walker's plan will continue on other fronts. Two other lawsuits are already pending, and "numerous" others are expected, according to Madison attorney Lester Pines, who represented Senate Minority Leader Mark Miller (D-Monona) in the case the Supreme Court decided Tuesday. The other cases challenge the law on other grounds, rather than on open meetings violations.

The justices issued their order just one week after hearing oral arguments that lasted more than five hours, making them the longest in memory if not state history, attorneys said.

In addition to limiting collective bargaining, the bill also requires state employees to pay more for their health care and pensions. Those changes were to take effect in April, but were stopped from going into place because of Sumi's order.

Last week, Administration Secretary Michael Huebsch said that if the court ruled in the administration's favor, implementation of the law could move quickly. State employees should expect to see the changes in pension and health care costs to become effective on their paychecks by the middle of August, Huebsch said.

In February, Walker proposed eliminating most collective bargaining for public workers except police, firefighters and State Patrol troopers.

The day the Senate was to take up the bill, the Democrats prevented action on the bill by fleeing to Illinois. Under the state constitution, at least 20 senators had to be present to pass the measure because it included fiscal elements. Republicans hold just 19 seats.

After three weeks, Republicans - with less than two hours' notice - created a conference committee with lawmakers from both houses and stripped out the parts of the bill that were considered "fiscal" under the narrow state definition. The Legislature then passed it and Walker signed it.

Within days, Democratic Dane County District Attorney Ismael Ozanne filed a court complaint alleging the committee violated the open meetings law. He said the committee needed to give 24 hours' notice before meeting and had to allow more people into the room.

In addition, the room was packed with legislative aides, reporters and camera crews, but just 20 members of the general public were allowed into the meeting. Hundreds if not thousands of others attempted to get inside.

The state constitution requires the doors of the Legislature to remain open when it is in session, and that portion of the constitution is referenced in the state's open meetings law.

The court majority found lawmakers must obey the state constitution, but not the open meetings law, which spells out when meeting notices must be published and when public entities can meet in closed session.

Sumi initially blocked the law with a temporary restraining order, saying Ozanne was likely to succeed on his open meetings arguments. Walker's administration then filed a petition for what is known as a supervisory writ - a request that the high court take over the case.

The court held arguments June 6 on whether to take the case. Until issuing its ruling Tuesday, the court had not formally accepted the case.

In May, while the high court was studying whether to take the case, Sumi entered her final order enjoining the implementation of the collective bargaining law. In its ruling Tuesday, the Supreme Court said it took up the case because the lower court had "usurped the legislative power which the Wisconsin Constitution grants exclusively to the Legislature."

***

Collective bargaining law

• Law eliminates most collective bargaining for most public unions. Workers will contribute more toward health insurance and pensions. Bargaining limited to negotiating wages; unions required to hold a vote of members every year to continue.
• Supreme Court sees no impediment to Secretary of State Douglas La Follette publishing the law. Once published, it would take effect.
• State employees can expect to make higher pension, health care contributions as soon as August.

Bill Glauber, Jason Stein and Rustin Fakheri of the Journal Sentinel staff contributed to this report.

About Patrick Marley

Patrick Marley covers state government and state politics. He is the author, with Journal Sentinel reporter Jason Stein, of "More Than They Bargained For: Scott Walker, Unions and the Fight for Wisconsin.”

• @patrickdmarley
• pmarley@journalsentinel.com
• 608-258-2262

About Don Walker

Don Walker covers Milwaukee's City Hall and the business of sports.

• @DonWalkerJS
• dwalker@journalsentinel.com
• 414-224-2051