Right Wing Nut House

My FrontPage.com column this morning looks at the fallout from Judge Sumi’s decision yesterday to issue a permanent injunction against Governor Walker’s Budget Repair bill that reforms collective bargaining rights in Wisconsin.

A sample:

Judge Sumi, appointed by former Republican Governor Tommy Thompson, badly botched the decision according to some legal experts. Christian Schneider at National Review Online and others point to a glaring error made by Sumi, who wrote in her decision that the there was “no conflicting senate” rule that would contradict the open meeting law’s time requirements (24 hours notice for a legislative conference committee, from which a bill can then be brought to the floor).

But as law professor William Jacobson points out on his blog, there is indeed such a rule and that it specifically exempts committee meetings held during special sessions.

That’s not the only curious thinking in Judge Sumi’s opinion. Jacobson points to a critical precedent that says “courts must await a law coming into effect before ruling on the law, Goodland v. Zimmerman.” Sumi dismissed the impact of the precedent by claiming that it was decided before the open meeting law was passed. But Jacobson pointed out the obvious: “[T]he principle is the same; courts rule on legislation, courts do not stop legislation from being made.”

Some court watchers were surprised at the timing of Judge Sumi’s decision. Rick Esenberg, a Marquette University law professor who has tracked the court’s activities, told JS Online that he was not surprised at Sumi’s ruling, but was surprised that she handed down the decision now. “She had clearly indicated that was her view,” he said.”[Y]ou had the sense that she had established that she wasn’t going to rule this early, but apparently she decided she needed to do it.”

What might have compelled Sumi to issue the ruling now? Christian Schneider at NRO reports that the state’s Department of Justice wrote a letter to the judge on Wednesday asking her to recuse herself from the case because of a brief she had filed with the supreme court last week. The state DOJ objected to Sumi’s pronouncement that legislation can be thrown out due to violations of the open meeting law. The department argued that a judge should recuse his or herself from a case when a public comment has been made that “commits, or appears to commit” the judge to any issue or controversy in the case before him or her. So, to head off trouble with the Wisconsin Department of Justice, Sumi rushed her decision into print.

The issue of her recusal doesn’t matter now. But it underscores the slipshod manner in which Judge Sumi has handled this case from the beginning. Her original temporary injunction did not include a stricture against the Wisconsin Secretary of State scheduling the publication of the law — an oversight that allowed the Republican majority to ignore her original restraining order. On March 29, Sumi was forced to issue an additional injunction, enjoining the Secretary of State from officially designating a date for publication. But Bill Cosh, a spokesman for the Department of Justice, said at the time, “We don’t believe that the court can enjoin non-parties. Whether the Department of Administration or other state officers choose to comply with any direction issued by Judge Sumi is up to them.”

There is also the matter of recall elections for GOP senators that could tip the balance of the senate to the Democrats if they sweep all three of them. All in all, this issue will still be alive going into the fall.