But Van Hollen assistant says law is in effect
March 29, 2011- For the second time in less than two weeks, a Dane County judge Tuesday issued an order blocking the implementation of Gov. Scott Walker's plan to curb collective bargaining for public workers.
Dane County Judge Maryann Sumi said that her original restraining order issued earlier this month was clear in saying no steps should be take to advance the law. The GOP governor's administration did so after the bill was published Friday by a state agency not named in Sumi's earlier temporary restraining order.
"Further implementation of the act is enjoined," Sumi said.
"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear."
She warned that those who violate her order could face court sanctions.
But outside the courtroom, Assistant Attorney General Steven Means said the legislation "absolutely" is still in effect.
The statement by Means – the executive assistant to Republican Attorney General J.B. Van Hollen – shocked Assembly Minority Leader Peter Barca (D-Kenosha).
"It's just startling that the attorney general believes you should not follow court orders anymore," he said.
In a later statement, Department of Justice spokesman Bill Cosh said: "We don't believe that the court can enjoin non-parties. Whether the Department of Administration or other state officers choose to comply with any direction issued by Judge Sumi is up to them."
The new restraining order bars Democratic Secretary of State Doug La Follette from designating a publication date for the law or running a notice about it in the official state newspaper, the Wisconsin State Journal. Sumi's written order does not name anyone else.
It is in effect until further order of the court, and another hearing is slated for Friday. Dane County District Attorney Ismael Ozanne, a Democrat, has asked her to permanently halt the law because he believes a legislative committee violated the open meetings law when it approved the legislation.
Sumi has not yet ruled on whether lawmakers violated the open meetings law, but she noted the Legislature could resolve the litigation by passing the measure again. Republicans who control the Legislature showed no signs of considering that.
"It's disappointing that a Dane County judge wants to keep interjecting herself into the legislative process with no regard to the state constitution," said a statement from Assembly Speaker Jeff Fitzgerald (R-Horicon). "Her action today again flies in the face of the separation of powers between the three branches of government."
A pair of Marquette University law professors had different takes on the ruling.
To Edward A. Fallone, it confirmed his view that clients should not "look for technicalities in order to evade" a temporary restraining order "but rather to behave in the spirit of the order and not try to push the envelope."
"I think it was predictable that the judge would not be happy with the actions of the Walker administration in implementing the law," he said.
Richard Esenberg said he was not surprised by the ruling but criticized the judge.
"There is applicable Supreme Court precedent that a court has no authority to enjoin the publication of a law," he said. "The state has repeatedly cited that law to her and as far as I know she has not only failed to explain herself about why she feels she has the authority, she hasn't even acknowledged there is an issue. That just leaves me speechless."
Esenberg was referring to a 1943 state Supreme Court opinion that said courts could not interfere with legislation until it is published and becomes law.
Tuesday's dramatic court maneuvering added yet another twist in the saga that has dominated state politics for six weeks.