Legal Limbo in Wisconsin

JOHN FUND

On March 11 Scott Walker, Wisconsin's Republican governor, signed into law a bill restricting the power of state employee unions and increasing what state employees pay into their pension and health plans. Is the bill now state law or has it been enjoined from taking effect by a local judge? It depends who you ask.

Yesterday, Judge Maryann Sumi of Dane County reissued a restraining order she had first issued last week. Her contention is that the ruling prevents the state from taking any steps to implement the law. She warned that those who violate her order could face court sanctions. Her ruling came as part of a challenge to the law which claims the legislature violated the state's open-meeting requirements in passing it.

But the position of Gov. Walker's administration is that the law is in effect because it was published last Friday by a non-partisan state agency that was not named in Judge Sumi's earlier restraining order. The state is already halting the automatic collection of union dues for state workers, forcing the unions to seek dues money directly from members. It's also begun deducting the higher payments for health and pension benefits from employee paychecks.

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Associated Press

Wisconsin Gov. Scott Walker

Steven Means, the executive assistant to state Attorney General J.B. Van Hollen, says the law is "absolutely" in effect and that his boss does not believe Judge Sumi is acting with proper authority. He pointed to a 1943 Wisconsin State Supreme Court decision that says courts cannot interfere with a law until it is published and becomes law.

"There is applicable Supreme Court precedent that a court has no authority to enjoin the publication of a law," Marquette University assistant professor of law Rick Esenberg told the Milwaukee Journal-Sentinel. "The state has repeatedly cited that law to [Judge Sumi] and as far as I know she has not only failed to explain herself about why she feels she has the authority, she hasn't even acknowledged there is an issue. That just leaves me speechless."

This entire legal mess will ultimately be resolved by the state's Supreme Court, but likely not right away. On April 5, a critical election for the seat of Justice David Prosser is being held. Millions of dollars are pouring into the state both for and against Mr. Prosser, a member of the 4-to-3 conservative majority that has dominated the court since 2008. Mr. Prosser's opponent, assistant state attorney general JoAnne Kloppenburg, has been endorsed by the Sierra Club, the former national co-chair of the Green Party and a union that represents public employees in Milwaukee County.

Should Ms. Kloppenburg win, some fear that the collective bargaining bill that was passed by the state's legislature after so much bitter debate would be in serious jeopardy.