MADISON, Wis. (AP) — A state appeals court declined to rule Thursday on whether to allow a law stripping public employee unions of nearly all their collective bargaining rights to take effect, saying the issue should be decided by the Wisconsin Supreme Court.
It’s appropriate for the state’s highest court to take the case because of the significant issues presented and the likelihood that it would end up there anyhow, the 4th District Court of Appeals said. It opted not to rule on whether a lower court judge properly issued an order last week temporarily blocking the law from taking effect.
The law remains on hold while the legal fight continues.
A majority of the seven-member Supreme Court must agree to take the case or it would remain in the appeals court. The higher court is under no deadline to make a decision.
Whether to take the case poses an interesting question for Justice David Prosser, a former Republican state lawmaker who is up for re-election on April 5. Prosser and Gov. Scott Walker, who proposed the law in question, both served in the state Assembly at the same time in the 1990s.
Prosser’s campaign spokesman did not immediately return a message seeking comment.
Walker spokesman Chris Schrimpf said the governor remained confident the law would take effect soon.
The new law requires nearly all public sector workers, including teachers, to contribute more to their pensions and health insurance, changes that amount to an average 8 percent pay cut. It also strips them of their ability to collectively bargain for anything except wages no higher than inflation.
Consideration of the proposal led to Senate Democrats fleeing to Illinois for three weeks in an attempt to block the measure by preventing a quorum. It also spurred massive protests that grew to more than 85,000 people the day after Walker signed the measure. It made Wisconsin the national focus in the fight over union rights.
The lawsuit filed last week by the Democratic district attorney in Dane County argued that passage of the law must be voided and its enactment stopped because Republican lawmakers violated the state’s open meetings law and the Wisconsin constitution. A Dane County judge agreed and issued an order last Friday preventing Secretary of State Doug La Follette from publishing the law, the last step before it takes effect.
The state Department of Justice objected.
The three-judge appeals court panel said in its order Thursday that the Supreme Court should rule on whether voiding the law is the proper remedy for an open meetings law violation and whether a court has the authority to stop the secretary of state from publishing it.
The Justice Department argued that Dane County Circuit Judge Maryann Sumi overreached her authority by issuing the temporary restraining order and improperly inserted herself into the lawmaking process. The Justice Department also argued that La Follette was immune from being sued.
A spokesman for the Justice Department had no immediate comment on the appeals court action.
At issue was how the Republican-controlled Legislature was able to pass the law earlier this month with none of the 14 Senate Democrats present.
Republican leaders called a meeting of a conference committee on March 9 to remove spending items from the bill. Those items required a 20-member quorum, something that couldn’t be met since the Democrats were absent. Once those spending items were removed, the Senate passed the bill, which still included the curtailing of collective bargaining rights, with no Democrats there.
However, the public notice given for the conference committee meeting was less than two hours. The lawsuit alleges that’s a violation of the open meetings law, which requires 24 hours’ notice except in emergencies.
The lawsuit also argues that the meeting violated the state constitution because the public was not given adequate access to the meeting. The constitution requires that “the doors of each house shall be kept open except when the public welfare shall require secrecy.”
Republicans have said there was proper access and there was adequate notice of the meeting under Senate rules. Members of the public were escorted into the meeting room that night, but attendance was limited.
The measure cleared the Assembly the following day. Walker signed it on March 11 and La Follette planned to publish it on Friday.
Dane County District Attorney Ismael Ozanne argued in his lawsuit that it was premature for an appeals court to hear the case given that the lower court judge scheduled a full hearing on the matter for Tuesday. An appeal shouldn’t be allowed to go forward until after that more complete record is made, Ozanne said.
Ozanne did not immediately return a message seeking comment.
Ozanne and Sumi have both said the Legislature could pass the bill again with proper notice and it would become law. Walker and Republican legislative leaders have said they expect to win in court and do not plan to vote on the bill again.
Another lawsuit filed by Dane County Executive Kathleen Falk, a Democrat, alleges similar open meeting violations. A hearing on that case, also being handled by Sumi, was scheduled for April 12.
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