Judge Sumi slapped

Tuesday, June 14, 2011
Maybe I'll veto the Supreme Court
In an earlier post, Knock me over with a feather, I made fun of Judge Sumi, a county judge in Wisconsin, who decided she had veto power over the legislature and tried to bar a bill from being published into law. 

I mentioned the Wisconsin Supreme Court was due to hear the appeal. Today they issued their decision and they slapped Judge Sumi silly in the process. They lifted the ban and ordered the bill to be published into law. 

The decision was 4-3, but the dissent seems to have centered around the speed and process of the decision, rather than the decision itself. The Wisconsin Legislature had forced the Court's hand by saying they would re-pass the bill today with the disputed parts included if the Court didn't make a decision. That would have mooted the case, and the majority must not have wanted to pass on the opportunity to forcefully set Sumi straight.

I've included part of their decision below, with the more brutal parts emphasized. Bear in mind I'm not a lawyer -- for a more legalistic discussion the threads at Volokh and Le·gal In·sur·rec·tion are good reads. Also, this doesn't end the legal wrangling, as soon as it is published as a law several challenges to it will be filed.

From the decision:
¶39  The first and most obvious issue presented by this case is whether the Dane County Circuit Court, or any court in Wisconsin, may enjoin the publication of an act to prevent that act from becoming law. The answer is "no."

¶40  This precise issue was settled in Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943).  In that case, the governor of Wisconsin sought to enjoin the secretary of state from publishing an act of the legislature that the governor had vetoed.  Governor Goodland sought an injunction on grounds that the Assembly had failed to override his veto by the constitutionally required vote of two thirds of all members present.  In other words, Governor Goodland sought to prevent publication of the act on constitutional grounds.  Goodland, 243 Wis. at 464-65.  The court unanimously rejected his position.

¶41  The court was definitive that "the legislative process is not complete unless and until an enactment has been published as required by the constitution and by statute."  Id. at 466 (emphasis added).  Then the court added:

There is no such thing known to the law as an unconstitutional bill.  A court cannot deal with the question of constitutionality until a law has been duly enacted and some person has been deprived of his constitutional rights by its operation.

Id.  Only after a law has been published may a person who is injured by the law challenge it in court.  Id.

¶42  The court provided a textbook discussion of the separation of powers:

It must always be remembered that one of the fundamental principles of the American constitutional system is that governmental powers are divided among the three departments of government, the legislative, the executive, and judicial, and that each of these departments is separate and independent from the others except as otherwise provided by the constitution.  The application of these principles operates in a general way to confine legislative powers to the legislature, executive powers to the executive department, and those which are judicial in character to the judiciary. . . .  While the legislature in the exercise of its constitutional powers is supreme in its particular field, it may not exercise the power committed by the constitution to one of the other departments.

What is true of the legislative department is true of the judicial department. 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.  It makes its own rules, prescribes its own procedure, subject only to the provisions of the constitution and it is its province to determine what shall be enacted into law.

Id. at 466-67 (emphasis added).

¶43  In short, "no court has jurisdiction to enjoin the legislative process at any point."  Id. at 468 (citing cases from Wisconsin and other jurisdictions).

¶44  Goodland was decided nearly 70 years ago, but it remains fundamental law.  In State ex rel. Althouse v. City of Madison, 79 Wis. 2d 97, 255 N.W.2d 449 (1977), this court cited State ex rel. Martin v. Zimmerman, 233 Wis. 16, 288 N.W. 454 (1939), with approval, noting that "the [Martin] court pointed out that the question of the validity of [an] act could not be entertained by any court prior to its enactment."  Althouse, 79 Wis. 2d at 112.  Justice Nathan Heffernan then quoted from Goodland at length and observed that, "If a court could enjoin publication of a bill, the [Goodland] court reasoned, it, not the legislature, would be determining what the law should be."  Althouse, 79 Wis. 2d at 113.  Turning back to Goodland, Justice Heffernan repeated the statement that "no court has jurisdiction to enjoin the legislative process at any point."  Id.

¶45  Goodland also was cited approvingly by Justice Abrahamson in State v. Washington, 83 Wis. 2d 808, 816, 266 N.W.2d 597 (1978) to support the principle that Article IV, Section 1 and Article V, Section 1 of the Wisconsin Constitution are construed to "prohibit one branch of government from exercising the powers granted to other branches."

¶46  The majority of this court now concludes that the circuit court exceeded its authority in prohibiting publication of 2011 Wisconsin Act 10.  This is not a close question. Wisconsin law in this regard is longstanding and completely in line with the law in other jurisdictions. 

Ouch. Some of that would sound condescending if they said it to me -- a non-lawyer. To state such things, in such a tone, to a sitting judge is a pretty clear slap upside her head. 


Anonymous said...

You're quoting from the concurrence, not the opinion.