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Could legal challenges halt Wisconsin's collective-bargaining law?

Two local officials are challenging whether Senate Republicans broke legislative rules when they passed a bill that strips most state workers of collective bargaining.

By Staff writer / March 18, 2011

Wisconsin Gov. Scott Walker announces Thursday, March 17, that Catalyst Exhibits, Inc., a manufacturer of exhibits for trade shows, will move from Crystal Lake, Ill, to Pleasant Prairie, near Kenosha, Wis.

Mark Hertzberg/Journal Times/AP

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Critics’ outrage over how a bill to curtail collective-bargaining rights passed the Wisconsin Senate last week is now taking form in legal action.

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Two county officials in Wisconsin have filed separate legal challenges contending that the state’s Senate Republicans violated legislative rules when they created a special committee, met the same day to strip appropriations from the bill, and then passed it without a quorum.

The bill has since been passed by the Assembly and signed by Gov. Scott Walker (R). Opponents are running against a ticking clock to stop the bill, which strips most state workers of collective-bargaining rights, from becoming law March 26. Hearings on both challenges are scheduled Friday.

The situation is unprecedented, making it difficult to gauge whether the maneuvers are a desperate Hail Mary pass or whether they are on solid legal footing. There is not enough of a legal precedent “to have any good sense on how to handicap the case,” says Charles Franklin, a political scientist at the University of Wisconsin at Madison.

In one case, he suggests, the decision could boil down to an interpretation of which legislative rules applied to the controversial March 9 session. Republicans say that because it was a special session, they did not need to give advance notice of committee meetings.

Dane County District Attorney Ismael Ozanne disagrees. In his complaint, he said the Republicans ran afoul of legislative procedure by calling a meeting of both Senate and Assembly members to take action on a bill that had not yet passed either. So-called conference committees of Senate and Assembly members are intended only to reconcile differences in legislation already passed by both chambers.

The fact that the committee was not used in its proper fashion nullified the special-session exemption claimed by the Republicans, he said. The meeting therefore required 24 hours' notice in accord with state open-meetings law.

“The legal question will depend on whether you see this falling under the special session rules, in which [Senate Republicans] appear to have complied, or you see it falling under a broader open-meetings law, in which case there is more of an argument [that there was a violation],” Mr. Franklin says.

Mr. Ozanne’s challenge wants the law voided and the Republican senators involved fined $300 for violating the open-meetings law.

In the second legal action, Dane County Executive Kathleen Falk filed a restraining order and temporary injunction Friday against the state’s Republican leadership, saying the bill’s passage was illegal because not enough senators were present for the vote.

In her complaint, Ms. Falk states that the bill’s passage violated the state constitution and will likely result in civil lawsuits. She wants it paused “so that those negative effects can do no harm until it is certain the bill’s passage will survive the legal challenges.”

Resolving the legal battles before March 26 may be difficult. Dane Country Circuit Judge Maryann Sumi, who is hearing both cases, says that despite Friday’s hearing, she will likely not rule the same day, and she is out of the state next week. In a preliminary hearing Tuesday, Judge Sumi told both parties they could request a different judge if they wanted their cases expedited.

The origin of the legal challenges – Dane County, home of Madison, the state capital – is not surprising. It leans strongly for Democrats each election cycle, says Franklin. “There is a public opinion aspect of this that is driving it, where the Democrats and presumably some Republicans are outraged at the timing and the procedure of [the bill’s passage],” he says, which makes the legal actions “perfectly consistent with what is going on.”

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