Wisconsin Legislature Seeks to Make the Open Meetings Law Enforceable Against Everyone But Them

Update: May 27, 2011 (see below)

Last week, I wrote about a temporary restraining order (TRO) placed on the publication of a Wisconsin bill that was allegedly passed in violation of the state's open meetings law. However, the court placing the TRO took four legislative leaders off the complaint on grounds of legislative immunity. Only the secretary of state, who is required to publish a bill in order for it to become law, was left as a defendant.

The secretary of state (SoS), represented by the state attorney general, has appealed this TRO and filed a brief (attached; see below) that attempts to effectively gut the open meetings law with respect to the state legislature.

The first argument made by the AG is that the trial court lacks jurisdiction over the SoS "because the Legislature has not authorized a state officer who is not a member of a governmental body to be subject to an Open Meetings complaint."

This sets up a two-part legislative immunity argument (in fact, the AG says that the SoS "enjoys sovereign immunity"). Those subject to the open meetings law are not subject to being brought before a court, and the only other official involved in the bill's approval, who can be brought before the court, is not subject to the violated statute.

In other words, the AG wants the court to declare that the open meetings law is not enforceable against the state legislature, at least during a legislative session, even though the act expressly provides for the possibility of voiding a bill and gives the state courts the jurisdiction to do this.

Here's what the brief of the district attorney who brought the action (attached; see below) says about this (pp. 2-3):

Wisconsin's Open Meetings Law is a wholly contained statutory regime designed to implement the constitutional commands of openness and transparency in government. The Legislature has bound itself to its requirements and has consented to be sued when violations occur. The Law provides standing in the Attorney General or a district attorney to enforce these requirements. It grants courts  jurisdiction to hear claims arising under the Open Meetings Law. It provides remedies for when violations occur. It empowers a district attorney to seek, and a court to award, plenary relief, including forfeitures, declarations and injunctions. The Law authorizes a court to void action taken in violation of the Law's requirements. And the Legislature specified the test a court must apply in determining the appropriateness of this remedy.

The AG raises all sorts of other arguments, mostly constitutional, but they all ignore the same basic fact:  the Wisconsin legislature passed the open meetings law, expressly tied it to the state constitution, made the law apply to its own procedures, and provided remedies that applied to its members, committees, and houses. Any other argument is yet another attempt by state officials to look like they care about government ethics until it is applied to them. And then all of a sudden they start talking about the constitution.

This is the same situation I've written about in states and cities regarding conflicts of interest. This gambit might work with respect to open meetings as well, but it sends the worst signal possible for government ethics:  it's fine for you, but not for the people who wrote, amended, and chose not to further amend the applicable laws. This places hypocrisy at the center of government ethics, and dresses hypocrisy up in the constitution.

To non-lawyers, they're the emperor's new clothes these officials are wearing. What people see is naked self-interest.

For some excellent in-depth commentary on this matter, see the Patriot Daily News Clearinghouse on the Daily Kos.

Update: May 27, 2011
Yesterday, the Dane County circuit court declared the bill void due to violation of the state Open Meetings law. It found that, due to legislative immunity ("legislative privilege" in Wisconsin), legislators could not be fined for a violation while the legislature is in session, but that since the courts have the authority to void legislation passed in violation of the Open Meetings law, and since legislators were not essential to such a finding, the court could proceed on this issue. And it did.

Robert Wechsler
Director of Research-Retired, City Ethics

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