21 March 2011

By Hook Or By Court

The passage of changes in Wisconsin Public Union's abilities to use Collective Bargaining on non-salary issues remains controversial. Fourteen Democrat State Senators fled Wisconsin for several weeks to thwart the legislative process of the Republican majority in passing the budgetary changes. To show their syndical solidarity, thousands of Union led protestors rallied outside of the Capitol while the Democrat fleebaggers were FIBbers. Hundreds of enthusiastic, anarchistic opposition forces occupied the Capitol Rotunda causing $7.5 Million in damage. Yet Union sympathizers proudly proclaim about these actions "This is what democracy looks like" in our Federalist REPUBLIC.

After Wisconsin Republicans decided to separate fiscal components from the Collective Bargaining changes, the legislation was passed on an 18-1 vote. The absentee Democrat legislators wailed the talking point that passage was "an affront to democracy" Kind of ironic, isn't it? Union supporters have vowed to use the courts and the recall process to remedy their legislative loss. Big blowhard socialist cineaste Michael Moore declared "This is war". Unfortunately, some liberal partisans seem to have taken cartoonish call to arms war admonition literally

Ann Althouse, a Madison law professor who revels in proper federalism, received a special note on her blog:

WE WILL FUCK YOU UP. We will throw our baseballs in your lawn, you cranky old pieces of shit, and then we will come get them back. What are you gonna do? Shootus? Get Wausau Tea Patriots to form an ad hoc militia on your front lawn? That would be fucking HILAROUS to us. You could get to know the assholes on your side in realfucking life instead of sponging off the civil society we provide for you every single day you draw breath.

Should we resort to the saw "sticks and stones may break my bones but names will never hurt me"? Well, State Senator Dan Kapanke (R-WI 32 La Crosse) has suffered threats, broken windshield along with a persistent thug who twice spread nails on Kapanke's driveway. It's not just legislators who are targeted by these loser thugs. A bank was targeted for supporting Gov. Scott Walker (R-WI). The tagger was bold enough to declare that "Unions are forever" so it should not be blamed on rowdy youths.

A more civilized way to redress Public Sector Union grievances is to mount recall efforts. But union thugs do not fight fair and have been caught tearing up Republican recall petitions. Much to the chagrin of union loyalists, Gov. Walker can not be recalled until he has served a year in office. Wisconsin State Senate Majority Leader Fitzgerald intimated coordination between the White House and Wisconsin Labor activists to assist in recall efforts. While that seems legally questionable, it seems slightly more businesslike than being Tourist in Chief in Rio de Janeiro while "leading" the United States into war in the Maghreb. 

Gov. Walker had to sign the Collective Bargaining bill in a private ceremony before the public signing as localities were rushing to ink deals that favored the Public Sector employees before the law took effect. But why rush when WI Secretary of State Doug La Follette (D-WI) decided to drag his feet and not publish the bill for two weeks, which was his right.

The final component of this by hook or by crook strategy is to use the court system. The thin reed which Union sympathizers are holding their hopes is on the notice for the vote. Wisconsin state Open Meeting Laws generally require 24 hours notice, but in special circumstances allow. the legislators to give as little as two hours notice. The non-partisan legislative parliamentarian approved the notice so the State Senate voted, the Assembly followed suit and the Governor signed the legislation.

Yet a Dane Circuit Court Judge Maryann Sumi deigned that the Governor's signing may be invalid because of the lack of proper notice. Of course, the law has not even take effect, but Sumi ruled against it. Sumi also recently refused to order Madison teachers back to work as they "suffered from" blue flu while protesting at the Capitol for their generous benefits package courtesy of the Wisconsin taxpayers. Unfortunately, according to State Bar, Wisconsin's Judicial Recusal rules are amongst the worst in the country, since judges do not need to excuse themselves "soley" because of political contributions or parties independent expenditures. So the fact that Sumi's son is a political operative who is an AFL-CIO field operative and also working for SEIU may not be sufficient to cause recusal. Perhaps the fact that Sumi made a preliminary injunction on important public policy and then went on vacation for a few weeks might merit her removal. Maybe Sumi went to Rio.

Despite my preliminary impression is that this political hack opinion is dodgy but it may follow the anything goes judicial standards of the day. Issuing preliminary injunctions against laws that have not been implemented seems incredulous, but the same phenomenon occurred when a Federal Circuit Court judge prevented Oklahoma's constitutional referendum against Sharia law from being implemented. Then there was the California Federal Circuit Court judge who decided that the 18 year old Congressional Law for the Military's "Don't Ask, Don't Tell" policy was unconstitutional and the Obama Administration immediately acquiesced. As the Obama Administration has shown with DOMA and federal border enforcement, laws do not matter if the Administrative and Judicial Branches have actors who are not keen on applying them.

Although the case materials are not readily available, there are several strong challenges to Judge Sumi's kangaroo court preliminary injunction against the Collective Bargaining changes. Firstly, it is fascinating that a Circuit Court judge can overrule the implementation of the will of the Legislative and Executive branches of a state government. After implementation of the legislation, real harm is suffered, a court could rule on a legal matter and its constitutionality, but not before. Secondly, there is the fact that the non-partisan Legislative Parliamentarian approved the two hour window. Thirdly, there is the question of whether the Wisconsin Open Meeting laws strictly applied to legislative proceedings and if the exigency provisions are applicable. Lastly, there is the niggling notion that the separation of powers question. Namely, can Circuit Court Judge Sumi tell the Legislative Branch how they must proceed, or does a legislative branch set their own internal rules?

Via: HotAir  Via: SouthCapitolStreet   Via: Breitbart.tv  Via: Red State

UPDATE 3/22--  I found this detailed priliminary legal analysis on Judge Sumi's ruling from Prof. Rick Esenberg of Marquette University Law.  This piece confirmed a few of my suspicions with attaching the relevant Wisconsin laws to them. Eseberg must be commended this for composing this excellent analysis while Marquette was playing in the 2nd Round of March Madness

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