In The News
Sumi lets the sunshine in – and the storm clouds gather
By Dominique Paul Noth
Editor, Milwaukee Labor Press
Posted May 26, 2011
Milwaukee, Wis. -- A victory for sunshine in Wisconsin and transparency in government was reinforced May 26 in a decision that, ironically, forces an attack on public workers out of judicial limbo and will probably goad the GOP majority into trying to eliminate public worker bargaining rights forever.
The odds are that in the next week they will attempt that through a separate piece of legislation. They hope that given speed, confusion and the blizzard of complex budget bills now moving forward, this do-over will escape the sort of public clamor that brought hundreds of thousands to the state Capitol and continue to roil the streets of the entire state with rallies, petitions and political activity.
It was a Dane County judge appointed by Republican Gov. Tommy Thompson to the circuit court bench, Maryann Sumi, who stopped in its tracks Act 10 – criminalizing public worker collective bargaining for anyting other than wages, and limiting those wages in effect to inflation. But her decision had nothing to do with the contents of the bill or the power of the legislature to make an idiot of itself in its laws.
Hers was a pragmatic reading of basic statutes that focused on whether the clear violation of the open meeting law – the transparency and sunshine rule approved with the teeth of judicial punishment by the legislature itself – happened blatantly and was enough to undo the sudden passage of the bill last March. It was, she ruled, turning her temporary injunction into a permanent one blocking the implementation of the law but leaving the legislature free, as it had always been, for a do-over. If legally it has the votes.
The legislature itself decreed this judicial oversight of open meeting rules and the power of the circuit court to nullify. Her reasoning emphasized basic judicial courage – when two laws appear in conflict, the courts must decide, and that is particularly important when the case involves controversial matters.
Her decision didn’t touch on the viability of the legislation itself but it indirectly took GOP Atty. Gen. J.B. Van Hollen to the woodshed for straying from applicable case law in his flailing to defend the position of Walker cronies like Jeff and Scott Fitzgerald. Without flourish, Sumi spelled out “the flawed reasoning” of the GOP majority’s defense and pointed out many essential violations that prevented constitutionally required sunshine. She noted how a hasty private meeting, complete with quorum and discussions before the bill was passed, was yet more evidence of how an “evasion of law” was the intent.
There’s been a lot of dancing and ducking to justify their behavior, noted Chris Ahmuty, executive director of the Wisconsin ACLU, in evaluation her decision. “But whatever happens now, the GOP majority cannot hide from the simple fact that they broke the law.”
One corporate lawyer told me, “Whatever the political consequence, it was a mainstream call.”
A Democratic legislator was clearly moved, however: “It brought the state back to appreciating the value of public access and input – to how we elected officials are supposed to operate.”
Another, Sen. Chris Larson, noted almost immediately after reading the decision: “This judgment serves as a lesson for those looking to place their partisan political agenda ahead of the interests of the people they were elected to serve.”
Sumi was less poetic and more direct in her opinion: "The Legislature and its committees are bound to comply with the open meetings law by their own choice . . . They cannot now shield themselves from the provisions that give the law force and effect,"
Right-wing lawyers will rail about the reasoning (while really concerned about the consequences), but it is hard not to see this as a middle of the road 33-page decision. It was aimed at both restoring public confidence and quietly reminding the conservatives on the current Wisconsin Supreme Court -- where legal appeals are also in play – of its own opinions on the importance of sunshine, some by conservative judges still sitting on the bench and quoted by Sumi.
But the decision was also the forceful reminder pointed out by state AFL-CIO Secretary-Treasurer Stephanie Bloomingdale: "This is a democracy, not a dictatorship, and Judge Sumi's decision makes it final that the union busting bill was passed illegally and will not stand.”
Marty Beil, head of the state’s largest employees union, also hailed the decision as a “breath of sunshine” and a victory for citizens, but he made sure to point out it was not taken as a permanent victory – just “a victory for today.”
Because Sumi has cracked open a Pandora’s Box. Decision time is about to descend on state politicians and voters.
Assume, as many politicos now do, that Sumi’s finely crafted arguments give the Supreme Court a pass, either to send the legal issue back to an appeals court or otherwise not wade in on her persuasive separation of process from content.
That puts the criminalizing of bargaining rights back in the lap of elected officials, who are still reeling from the public outcry over their previous efforts to turn teachers and all others public workers – except fire and police, most of whom now resent the exclusion based on a few units that voter for Walker -- into second-class citizens.
The GOP was finding it hard enough to justify passing such Walker budget items as ripping $1.7 billion out of aid to education and nearly $100 million from municipalities while handing tax breaks to companies without requiring state hiring or economic growth. They are pressed to explain allowing companies to keep the profits and not create in-state jobs by funding out of state CAPCOs to the tune of a $250 million while simultaneously giving the governor free rein over any state agency, including election agencies, that set lawful standards.
They are still debating what to do about recycling, expanded voucher programs (which more and more citizens are finding distasteful as well as unproven), and slashed medical funding for seniors, children and women. They are trying to explain why they support that voter bill imposing new rules to attack non-existent fraud by slowing down the voting rights of all citizens.
They have to explain to all citizens, not just the vocal members of the NRA, the unlimited concealed carry proposal that means the voter next to you, the driver in the passing lane or the drunk at the ballpark may be packing hidden heat.
These provisions are hard enough to sell the voters without criminalizing bargaining rights for public workers within weeks of recall elections. Yet all these votes without creating jobs are clearing souring the electorate – Walker’s own support has dropped to 43% in the most recent polls and ousting only three of the six GOP senators under attack will restore Democrat control of the state Senate while setting the plate comfortably to recall him early in 2012.
Within the next week, three more GOP state senators will join the three already confirmed to face July elections because of sufficient recall signatures, meaning that six out of the eight that could face recalls will. More than half of the 14 Democrats who fled the state to prevent a GOP senate quorum to pass that bargaining rights bill could have faced recalls. While the GOP has tried to savage the 14 as Illinois fugitives, most of the Wisconsin pubic has elevated them into heroes, labeling them the “Fabulous 14” because they gave the public time to understand what was in those Walker bills. (One result: Only three, by slim margins, face recall elections, probably also in July.)
The actions of the 14, joined by the defiance of thousands of citizens and the stern insistence on keeping the state Capitol open by the 38 Assembly Democrats, forced the GOP to strip its bargaining bill of financial issues (though whether they’re all gone remains a legal debate) and led to those secret meetings and evasion of the open meeting rules in a desperation to pass the bill.
Sumi makes it necessary to pass the bill again, but the GOP is seeking a way that avoids intense discussion that might bring back the national media. And yet right now, absent the law, even conservative communities are making deals with unions because they figure they can do better than the invisible “tools” Walker pretends he’ll provide. These communities measured those “tools” against his financial crippling of their schools and local governments and figured they will do far better actually working with their own employees on issues like health costs, classroom sizes and cooperative discipline. Hence a rush of one and two-year contracts before any law restricts them.
Even in communities such as Menomonee Falls, hardly a bastion of liberal politics, school leaders focusing on realities and facts found bigger savings and better teaching for the kids than anything Walker could offer, and to do so they had to fight off some hard-core bullying by conservative talk radio.
Surveying the landscape, “Do their leaders really think the Republicans want to take this sort of vote again?” asked Sandy Pasch. She is the highly respected Assembly Democrat who will take on GOP incumbent Alberta Darling in one of the likely July recall elections. Her sensible observation comes though she would clearly love to have Darling take such a vote right before facing her in what is likely to be the most watched recall election in the state.
Yet the GOP leadership, including at this point Darling, a co-chair of the Joint Finance Committee who has been shepherding many of Walker’s budget bills through, is indeed trying to force its members to walk that bargaining bill plank – right now, because if the majority changes they won’t have the votes later.
All puts union leaders and progressive leaders – not always the same -- in a bind. If a separate bill is introduced and passes, it brings some horrifying short-term consequences for union members and the middle class in general.
But if Walker’s supporters force a new vote on the criminalization of public worker bargaining rights, this could prove the Wisconsin equivalent of what the national GOP just went through with the Ryan Medicare bill, the one that gives those under 55 a coupon to buy coverage rather than Medicare to face their future health needs.
The national GOP made its elected officials vote in favor of the idea, though many disliked it. Those who resisted in the open were literally drummed out of favor. Yet so violent was the reaction to this Ryan plan – proposed by a Wisconsin Republican no less, whose own poll numbers are swooning in his US District 1 – it is widely believed that endorsing it led directly to the victory of Democrat Kathy Hochul of an upper New York State district that had for 40 years been regarded as safely Republican.
If you want to see yet another GOP over-reach into destruction, just keep your eye on Wisconsin.