The problem arose because the DA, Ozanne, sued a list of people but failed to name the head of the LRB. So the LRB wasn’t a party to the action. To fix this, she should have either told Ozanne to amend the suit to name Stephen R. Miller (in his professional capacity as Chief of the Legislative Reference Bureau), or sua sponte (on her own motion) amended the suit to include him as a defendant. Then she could have simply issued an order staying any and all defendants from taking any steps to further implement the law.
There’s a way to deal with an unknown defendant – when a court (or a party) does not, even through the exercise of due diligence, know the identity of a defendant, the court may identify him as a John Doe defendant. That serves to move the action forward, but of course if the defendant doesn’t get actual notice of the court’s order, he can’t be expected to follow it.
An example of when it would might be a file-sharing complaint. The RIAA sues a person sharing Hannah Montanna music. But all they have is an IP address. So they sue John Doe, the unknown person at such-and-so IP address. The fact that a suit now exists allows them to subpoena the ISP and get them to divulge the name of the user who had that IP address, at which point they can amend their suit to name the actual person.
In this case, of course, that exception is inapplicable.
I was sloppy there, and it bothered me that I was afterwards. I don’t blame you for calling me on my use of the phrase “pretty much as intended”. I’m embarrassed about that.
My intention wasn’t so much to indicate that Jimmy Stewart, Lincoln, and the Dems were following the original, primary, intent of the quorum rule, but to indicate that the Dems were following a time-honored use of that rule (that’s the less-important part of this sentence) to allow the public to have time to learn of the proposed legislation and respond, if they so desired (that’s the more important concept here, which you missed, again).
Yeah, but you’re not going to like it. One, I don’t recall that particular cite of yours, as I got bored with your misleading arguments and skimmed much of the cites. Two, I’m not as concerned with such intricacies of law which, you must note, are currently being debated by specialists with more expertise (at least locally) than you or I (I won’t venture that their minds are as fine as yours, however). The broader scope of the law is of more interest to me, but only in service of a greater principle - providing for government that is responsive to the will of the people.
I don’t need to connect the dots - or do I? - that my comments were a response to your claim of hypocrisy. Despite all of your bluster, and despite my utter clumsiness at the finer points of debate, my point was simple and clear. Both the support of actions of the “Heroic 14” and the condemnation of the recent shenanigans around the Open Meetings law are consistent with the desire to support the democratic process and oppose the republican leadership’s attempts to subvert it.
Yeah, kinda funny until you analyze the joke. Still, it made me smile. Thanks.
Well, I imagine he’s relying on the famous case of Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943).
(As an aside, let me just say that if I were ever moved to take the bar in another state, I have a huge head start on Wisconsin now… )
In Goodland, the court was asked to enjoin the Secretary of State from publishing an act enacted by the Legislature. (At that time, the Secretary of State was the right guy to sue). The plaintiff contended that the act was unconstitutional and that the courts should stop the SecState from publishing the law. The Supreme Court of Wisconsin said no:
However, now that Judge Sumi has amended her order, it’s clear that she’s no longer trying to stop publication of the law (which she failed to do and couldn’t have constitutionally done anyway) but enjoining the administration as a whole from enforcing it. (I assume she’s revised her order to explicitly name Walker or whatever official actually would take some action in enforcing it). As long as she’s done that, she is now correctly exercising her power and enforcement of the law should halt, pending a further hearing.
So, assuming she did what I said above, I’m now on her side; the administration cannot ignore a valid order.
This is what I accused elucidator of saying earlier – basically, what the law might say, or not say, is really of secondary or even no importance – what’s important is The Doing of the Right Thing.
And of course, you get to define what the Right Thing is.
This is what I contest. The point is to agree upon the rules in advance, without knowing which side may later be advantaged by them. If the rules turn out to be flawed in some respect, change them going forward, but accept the neutral application of them now.
In this case, I disagree that the Republicans were flouting any principles of democracy initially. They were duly elected by majority votes and, in our system, won the right to govern. It was the fleeing Democrats that prevented that exercise of democracy by fleeing. So if your yardstick is truly “democracy” – or more accurately, a democratic republic – then this is the point at which democracy was hindered.
But I suspect your point of view is more polarized… that what the Democrats want is, per se right for democracy; that the attempt to end public sector union’s broad bargaining is itself somehow undemocratic, so that every move taken in favor of the bill was undemocratic and every move taken in resistance to it was democratic, regardless of the “technicalities” of the “law.”
Furthermore, I would argue that Goodland is not applicable. This is not a question of constitutionality, but of improper procedure. It is well known, even on the Federal level, that a court may not make guesses at the constitutionality of a law. Was it Madison who turned Washington down on the matter? However, that is not the argument being presented here, but rather that ‘this law was not passed properly, and is not a law’.
The plaintiff (who was the Governor of Wisconsin) contended the act was unconstitutional for procedural reasons: specifically, that the legislature failed to correctly override his veto, and therefore the defendant (the Secretary of State) should not publish it.
So the issue is exactly the same: the claim that the legislature used improper procedure to pass a law. In Goodland, the procedure had a constitutional dimension, yes. But the complaint was not that the law’s effect was unconstitutional, but that procedure used to pass the law was unconstitutional.
Obviously yours is a sarcastic response, but in fact, I’m now defending Judge Sumi because now her order correctly reaches the right party, and thus should be obeyed. You, in contrast, support your side, regardless of what the law might say. It’s absolutely clear that I approach this with better objectivity than you do.
I don’t get to define what the Right Thing is for anybody but myself and I suppose those whose fists meet my nose. Well, in my more mature moments I recognize this, at least. Like anyone, I can get caught up in promoting what I feel is right.
I tend to agree with your argument here, actually, when it comes to how the rules should be set. We may differ in some respects when it comes to how the rules should be followed (whereas you might complain about my preference for “spirit” and “emanating penumbras” I would dismiss that and instead complain loudly about certain types of “gaming the system” and “taking advantage of the disenfranchised” - we’d be coming from non-intersecting perspectives).
I don’t care to debate that particular issue other than to note that I disagree with your views. I would bet, however, that we would both agree that being more careful about setting the rules in the first place would decrease a lot of the conflicts in cases like this. For instance, I’m hoping that you’re wrong about Judge Sumi, but I agree she should have been more careful and thorough in her ruling.
No, I’m not nearly that partisan.
I disagree that the Republicans “won the right to govern” in the way that you mean. They won the right to represent their constituents, along with the Democrats who won their seats.
No one in Wisconsin ran on a platform of busting unions, or of refusing to hold debate and discussion before passing laws. The actions taken by the Republican leadership in this state amounted to a bait-and-switch, and an unfair use of their legislative power to attempt to prevent public discourse. I suspect that their subversion of the democratic process in this state began some time before anything was ever brought to the floor, but in any case it became evident very quickly that they were not interested in allowing debate, or even allowing a response from their constituents.
I regret that the Democratic representatives were pushed into a position where they had to pull a Jimmy Stewart in order to bring public awareness to this issue, but it was clearly a last resort sort of response, one that would have been unnecessary if the Republican leadership in this state had not already acted to subvert the democratic process.
First let me say I truly appreciate the introspection and quality in this post.
This may be simply an “agree to disagree” moment… but I believe the history of the country is rife with politicans that don’t disclose, during the campaign, the moves they end up taking once in office. Sometimes this is a reslt of genuine change in point of view (Ryan’s moratorium on the death penalty, for example) and sometimes it was the cynical recognition that disclosing the full scope of plans would alienate voters (this case, or gun rights restrictions approved by Dems whose campaigns did not hint at an antipathy to Second Amendment rights).
Obviously, I like it when the death penalty is stopped, even though the politican failed to advise voters that this was his plan. Equally obviously, I dislike it when a politician restricts gun rights, regardless of whether he informed voters in advance.
But the nature of a democratic republic means that these sorts of events are a feature of the system, not a disavowal of it. We do not submit each decision to a majority vote – and if we did, I suspect the same-sex marriage folks might not be happy about it. As a democratic republic, we elect leaders and assign them the power to govern. If we feel they lied, we remove them from office. None of that isanti-democratic. It’s the very DEFINITION of a democratic republic.
What?!? Why? If anything, procedure mandated by constitutional command is STRONGER than procedure mandated by mere law. But you’re saying the procedural violations of constitutional dimension can’t stop a law from being published, but when procedure mandated by mere law is violated, that’s sufficiently egregious to stop publication?
Aw, Bricker, you should know better than this. Constitutional violations in potentia are different from procedural violations in effect. Or are you saying that no judge can ever order a stay of any law on procedural grounds?
Cause, you know, this one did. And when you make a statement and it winds up being false to fact, then something there is wrong.
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