Wisconsin Legislature Seeks to Make the Open Meetings Law Enforceable Against Everyone But Them
<b>Update: May 27, 2011</b> (see below)<br>
<br>
<a href="http://www.cityethics.org/content/open-meetings-laws-and-legislative-im…; target="”_blank”">Last
week, I wrote</a> about a temporary restraining order (TRO) placed on
the publication of a Wisconsin bill that was allegedly passed in
violation of the state's open meetings law. However, the court placing
the TRO took four legislative leaders off the complaint on grounds of
legislative immunity. Only the secretary of state, who is required to
publish a bill in order for it to become law, was left as a defendant.<br>
<br>
The secretary of state (SoS), represented by the state attorney
general, has appealed this TRO and filed a brief (attached; see below)
that attempts to effectively gut the open meetings law with respect to
the state legislature.<br>
<br>
The first argument made by the AG is that the trial court lacks
jurisdiction over the SoS "because the Legislature has not authorized a
state officer who is not a member of a governmental body to be subject
to an Open Meetings complaint."<br>
<br>
This sets up a two-part legislative immunity argument (in fact, the AG
says that the SoS "enjoys sovereign immunity"). Those subject to the
open meetings law are not subject to being brought before a court, and
the only other official involved in the bill's approval, who <i>can</i> be
brought before the court, is not subject to the violated statute.<br>
<br>
In other words, the AG wants the court to declare that the open
meetings law is not enforceable against the state legislature, at least during a legislative session,
even though the act expressly provides for the possibility of voiding a
bill and gives the state courts the jurisdiction to do this.<br>
<br>
Here's what the brief of the district attorney who brought the action
(attached; see below) says about this (pp. 2-3):<ul>
Wisconsin's Open Meetings Law is a wholly contained statutory regime
designed to implement the constitutional commands of openness and
transparency in government. The Legislature has bound itself to its
requirements and has consented to be sued when violations occur. The
Law provides standing in the Attorney General or a district attorney to
enforce these requirements. It grants courts jurisdiction to hear
claims arising under the Open Meetings Law. It provides remedies for
when violations occur. It empowers a district attorney to seek, and a
court to award, plenary relief, including forfeitures, declarations and
injunctions. The Law authorizes a court to void action taken in
violation of the Law's requirements. And the Legislature specified the
test a court must apply in determining the appropriateness of this
remedy.</ul>
The AG raises all sorts of other arguments, mostly constitutional, but
they all ignore the same basic fact: the Wisconsin legislature
passed the open meetings law, expressly tied it to the state
constitution, made the law apply to its own procedures, and provided
remedies that applied to its members, committees, and houses. Any other
argument is yet another attempt by state officials to look like they
care about government ethics until it is applied to them. And then all
of a sudden they start talking about the constitution.<br>
<br>
This is the same situation I've written about in states and cities
regarding conflicts of interest. This gambit might work with respect to open meetings as well, but it
sends the worst signal possible for government ethics: it's fine
for you, but not for the people who wrote, amended, and chose not to
further amend the applicable laws. This places hypocrisy at the center
of government ethics, and dresses hypocrisy up in the constitution.<br>
<br>
To non-lawyers, they're the emperor's new clothes these officials are
wearing. What people see is naked self-interest.<br>
<br>
For some excellent in-depth commentary on this matter, see the <a href="http://www.dailykos.com/user/Patriot%20Daily%20News%20Clearinghouse" target="”_blank”">Patriot
Daily News Clearinghouse</a> on the Daily Kos.<br>
<br>
<b>Update: May 27, 2011</b><br>
Yesterday, <a href="http://www.thewheelerreport.com/releases/May11/0526/0526sumi.pdf" target="”_blank”">the Dane County circuit court declared the bill void</a> due to violation of the state Open Meetings law. It found that, due to legislative immunity ("legislative privilege" in Wisconsin), legislators could not be fined for a violation while the legislature is in session, but that since the courts have the authority to void legislation passed in violation of the Open Meetings law, and since legislators were not essential to such a finding, the court could proceed on this issue. And it did.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
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