Judge Maryann Sumi listens to arguments during a hearing Friday in Dane County Curcuit Court in Madison. Credit: Mark Hoffman

By of the

Madison — Public employees won a reprieve Friday as a judge issued a temporary restraining order to halt Gov. Scott Walker's law to sharply limit collective bargaining for government employees.

Republicans vowed to appeal as early as Monday the decision by Dane County Circuit Judge Maryann Sumi. GOP lawmakers declined to say whether they might also consider the separate tactic of passing the bill through the Legislature again.

If the battle remains in the courts, it seems almost certain to wind up before the state Supreme Court.

Sumi's order prevents Secretary of State Doug La Follette from publishing the law - and allowing it to take effect - until Sumi can rule on an injunction, which if issued would block the law for a longer period. Hearings on an injunction are scheduled for March 29 and April 1.

Dane County District Attorney Ismael Ozanne, a Democrat, on Wednesday filed his complaint seeking to block the law because he said a legislative committee violated the state's open meetings law in passing the measure. The committee voted for it March 9, which allowed the Legislature to quickly pass it. Walker signed it March 11.

Sumi, who was appointed to the bench by Republican Gov. Tommy G. Thompson in 1998, said Ozanne was likely to succeed on the merits of the case.

"The public policy behind effective enforcement of the open meetings law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (collective bargaining law)," she said.

"We in Wisconsin own our government. . . . We own it in that we are entitled by law to free and open access to governmental meetings, and especially governmental meetings that lead to the resolution of very highly conflicted and controversial matters."

But state Attorney General J.B. Van Hollen, a Republican, said he believed the judge had erred.

"The Legislature and the governor, not a single Dane County Circuit Court judge, are responsible for the enactment of laws," Van Hollen said in a statement. "Decisions of the Supreme Court have made it clear that judges may not enjoin the secretary of state from publishing an act. . . . Decisions of the Supreme Court are equally clear that acts may not be enjoined where the claim is that a rule of legislative procedure, even one as important as the open meetings law, has been violated."

Assistant Attorney General Steven Means said the state will request permission from the state Appeals Court to appeal the temporary restraining order Monday. The Appeals Court is not required to hear an appeal because a final decision has not been reached in the case, he said.

The budget-repair bill was meant to shore up the state's finances through June 30 but drew widespread opposition because of the collective bargaining changes. It stalled when Senate Democrats left the state Feb. 17 to block action on the measure. The state constitution requires 20 of 33 senators to be present to vote on bills with certain fiscal elements, and Republicans hold just 19 seats.

After three weeks, Republicans quickly convened a conference committee March 9 to strip appropriations out of the bill. They said the changes to the bill meant they no longer needed 20 senators to be present.

The four Republicans on the conference committee voted for the bill as they ignored the lone Democrat at the meeting, Assembly Minority Leader Peter Barca of Kenosha, who screamed at them to stop because he believed they were violating the open meetings law.

The Senate passed it minutes later with no Democrats present as protesters jammed the halls of the Capitol.

"I am very pleased with her action," Barca said after the court hearing. "We felt from the beginning this was a violation of the open meetings law. And now we go on from here."

He said it was fitting the ruling came at the end of "Sunshine Week," a national effort by the American Society of News Editors to promote openness in government.

Notice at issue

Wisconsin's open meetings law requires 24 hours' public notice of meetings, or two hours in emergencies. Ozanne argued the emergency standard did not apply and that even if it did, the meeting didn't follow the law because the conference committee met with less than two hours' notice.

Assistant Attorney General Maria Lazar said that a notice for the meeting was posted on a bulletin board about two hours in advance and that there was no way to know exactly when it was posted.

Ozanne also argued the meeting violated the law because people had difficulty getting into the Capitol amid tight security and because it was held in a small room that could not accommodate the large crowd trying to get in. Sumi took note of that, pointing out the state constitution requires the doors of the Legislature to be open when lawmakers are in session.

Republicans denied they violated the meetings law, saying legislative attorneys signed off on their procedures before they acted.

The Republicans on the committee were the Legislature's four top leaders - Senate President Mike Ellis of Neenah, Senate Majority Leader Scott Fitzgerald of Juneau, Assembly Speaker Jeff Fitzgerald of Horicon and Assembly Majority Leader Scott Suder of Abbotsford. The Fitzgeralds are brothers.

Ozanne told the court this week he was prepared to call 20 witnesses, but Sumi made her ruling without taking testimony. Waiting in the halls of the courthouse were top aides to legislative leaders, the head of the Legislative Fiscal Bureau and the sergeants at arms for both houses.

The state constitution gives legislators immunity from lawsuits during the legislative session, and state Department of Justice attorneys asked Sumi to stop the case early in Friday's hearing on those grounds. Sumi found she had jurisdiction over the case because the complaint also names La Follette, the secretary of state.

La Follette, a Democrat, is tasked with publishing laws once they are signed. La Follette could have published the law as early as Monday but decided to follow his normal procedure of waiting until the last day to do so. Under that plan, the law would have been published March 25 and gone into effect the next day, but he is now barred from publishing it.

"It proves moving cautiously and slowly has its merits," he said after the hearing.

La Follette, who has served as secretary of state since 1975, except for a four-year span in the 1980s, has said he can't remember a time that a court blocked him from publishing a bill.

The bill to curtail collective bargaining for public employee unions has drawn protesters to the Capitol for more than a month, with crowds swelling to tens of thousands of people on some days. Opponents now see the courts as their best shot at stopping the law, though they are also pursuing recalls to win back Democratic control of the state Senate. Republicans, meanwhile, are attempting to recall Democratic senators for leaving the state.

The law would restrict collective bargaining to wages, and would also limit raises to inflation unless a referendum passed. The law would also require most state workers to pay 5.8% of their salary for their pensions and at least 12.6% of their health insurance premiums. The measure would have kicked in April 1 and was key to helping reduce a $137 million shortfall through June 30.

In court Friday, Sumi said lawmakers have the ability to take up the bill anew and pass it again.

Republicans declined to say whether they were considering that option. Doing so could prompt a drawn-out process, given that Democrats were able to debate the bill nonstop for more than 60 hours in the Assembly the first time.

But if they do try to pass it again, the prospect of Democrats boycotting the Senate again appears unlikely.

Sen. Tim Cullen (D-Janesville) said he would not leave the state again to try to block legislative action. Republicans would need just one Democrat to stay to avoid any questions of quorum. Cullen said he would stay because a do-over might give Democrats a chance to improve what they see as the worst parts of the bill, even if they wouldn't ever vote for it.

Full calendar

Sumi has found herself overseeing three cases related to the controversy at the Capitol. Cases are randomly assigned in Dane County.

She is hearing a similar case filed by acting Dane County Executive Kathleen Falk and others to stop the law because of the alleged open meetings violation. They also argue senators improperly passed the bill because they believe legislators still needed to have 20 senators present even after removing the appropriations.

Falk is seeking a preliminary injunction to halt publication of the law. The state has filed a motion to dismiss the case.

In a separate case last month, Sumi refused to order teachers in the Madison Metropolitan School District to work as they spent several days protesting at the Capitol against Walker's bill, shutting down the schools for four days.

After the district sought in court to force teachers back, Sumi refused to issue a temporary restraining order and instead set a hearing on the issue. That hearing was called off after the Madison teachers union voted to return to work.

The district said the action - which involved large numbers of teachers not showing up for class - amounted to a strike, which is illegal for public workers. But Sumi said the district did not meet the burden of proof that what was occurring was a strike as defined by state law.

Union officials said teachers were engaging in political action involving their freedom of speech and that it was not a strike.