Jeff Fitzgerald, Scott Fitzgerald, Michael Ellis and Scott Suder,
MAR 24, 2011
A. John Voelker
Acting Clerk of Supreme Court
Before Lundsten, Higginbotham and Blanchard, JJ.
Wisconsin Secretary of State Douglas La Follette petitions
for leave to appeal a temporary restraining order (TRO) issued on March 18,
2011, which enjoins La Follette from publishing 2011 Wisconsin Act 10, commonly
known as the Budget Repair Bill, until the circuit court can rule on the
underlying action. The circuit court
issued the TRO after determining it was likely that the Dane County District
Attorney would be able to establish that members of the Wisconsin Senate and of
a joint legislative committee had violated
This case presents several significant issues involving justiciability
and the remedies that are available under
We certify the following questions: (1) whether striking down a legislative act—also known as voiding—is an available remedy for a violation of the Open Meetings Law by the legislature or a subunit thereof; and, if so, (2) whether a court has the authority to enjoin the secretary of state’s publication of an act before it becomes law.
The first case that we have identified as particularly
relevant was decided in 1943. In Goodland
v. Zimmerman, the court held that a circuit court lacked authority to
enjoin the secretary of state from publishing an act on grounds that the act
had not been constitutionally enacted and that it provided for an
unconstitutional delegation of power. Goodland,
Goodland, viewed alone, might be read as precluding the immediate injunctive relief sought in this case. The District Attorney argues, however, that the legislature has since then itself authorized just such relief by enacting revisions to the Open Meetings Law in its 1975-76 legislative session. The Open Meetings Law begins with a declaration of policy that includes the following:
In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with [the open meetings provisions set forth in] this subchapter.
Wis. Stat. § 19.81(3) (emphasis added). The legislature went on to make the Open Meetings Law provisions expressly applicable to itself. The law applies to legislative meetings, except for specific exemptions set forth in the statute. Wis. Stat. § 19.87. The Open Meetings Law also provides that it can be enforced by a broad range of remedies, explicitly including injunctions. Wis. Stat. § 19.97(2).
The District Attorney’s position—that revisions to the Open Meetings Law provide a wider range of available relief to remedy violations of the Open Meetings Law than were available at the time of Goodland—gains some support from the next case we highlight.
In the 1976 case, Lynch v. Conta, a district attorney
sought a declaratory judgment regarding what types of meetings were included
within the scope of the pre-1975 version of the Open Meetings Law in order to
determine whether his office could bring a forfeiture action against legislators
upon a verified complaint. Lynch,
That brings us to State ex rel. La Follette v. Stitt, a
case decided in 1983. In Stitt,
the court considered its authority to review whether the legislature had failed
to refer an act to the proper committee before passage. The Stitt court rejected any prior suggestion
that it had the power to invalidate legislation based upon a violation of a “procedural”
statutory provision in passing an act, unless the challenged procedure
“constitutes a deprivation of constitutionally guaranteed rights.” Stitt, 114
The Stitt court’s treatment of Lynch, in the course of broadly asserting the general rule that courts will not invalidate legislation based upon violations of procedural statutes, suggests that voidability is not an available option for a violation of the Open Meetings Law. Thus, Stitt seemingly weighs in favor of the Secretary of State’s position in this case. Nonetheless, Stitt did not involve an alleged violation of the Open Meetings Law and the court did not consider the implications of strong language in that law indicating a legislative intent to subject itself to the law. Perhaps more significantly, the Stitt court did not consider whether the Open Meetings Law implicates a constitutional right of public access to legislative proceedings, something that appears to be key to the next decision we discuss.
In 2009, the court in Milwaukee Journal Sentinel v. Wisconsin
Dept. of Admin., considered whether the legislature’s ratification of a
collective bargaining agreement containing certain confidentiality provisions could
be treated as having created an “as otherwise provided by law” exception to the
Public Records Law.
The District Attorney in this case argues that courts should have the power to review the legislature’s compliance with the Open Meetings Law in the same manner as the court reviewed the legislature’s compliance with the statutory provision in Milwaukee Journal Sentinel. To support his position, the District Attorney points to Wis. Stat. § 19.81(3), which pronounces the legislature’s intent to comply with the Open Meetings Law to the fullest extent possible “[i]n conformance” with Article IV, section 10 of the Wisconsin Constitution. The constitutional provision to which the statute refers broadly states that the doors of each house shall remain open, except when the public welfare requires secrecy. Wis. Const. art. IV, § 10.
In sum, Goodland and Stitt appear to favor the Secretary of State’s position that courts lack authority to invalidate legislation enacted in violation of the Open Meetings Law or, at the least, to do so before publication. In contrast, Lynch and Milwaukee Journal Sentinel support the District Attorney’s view.
It appears to us that the central question presented by the petition and request for temporary relief is whether the Open Meetings Law’s express reliance on and reference to Wis. Const. Art. IV, § 10 means that the statute should be interpreted as protecting a constitutional interest, thus subjecting alleged violations by the legislature or subunits thereof to judicial review, as in Milwaukee Journal Sentinel. See Wis. Stat. § 19.81(3). If the Open Meetings Law is not viewed as protecting a constitutional right, then it would appear, under Stitt, that a court would have no authority to void an act based upon an alleged violation. If, however, the legislature’s compliance with the Open Meetings Law is subject to judicial review in order to protect the underlying constitutional interests involved, the additional question arises whether such review may occur while the legislative process is still pending (under the Lynch rationale that the legislature consented to being subject to injunction), or must wait until the process has been completed with publication of an act under the Goodland rationale.
It is appropriate to certify to the Supreme Court appeals
raising issues which that court might otherwise ultimately consider on a
petition for review, in order to reduce the burden and expense of the appellate
process on both the parties and the judicial system. See
Public Serv. Corp. v. Public Service Comm’n of Wis., 176
 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise specified.
 Because the temporary relief sought would moot the appeal, we certify the motion as well.
 La Follette also contends that the circuit court erred in issuing the TRO because: (1) the secretary of state is immune from suit; (2) there was no violation of the Open Meetings Law here because the government bodies at issue followed conflicting legislative rules for notice, that took precedence over Open Meetings Law provisions; (3) even if there was a violation, the remedy would be limited to voiding the actions of the legislative committee and senate who committed the alleged violations, and could not reach subsequent actions by the assembly, governor or secretary of state; and (4) the circuit court failed to properly consider the irreparable harm to the State which La Follette claims will be caused by the TRO. We do not believe that any of those questions, standing alone, would warrant granting leave to appeal, although, of course, the Wisconsin Supreme Court would have full authority to address any or all of them.