Court Teaches Judge Sumi the Law

Published June 28, 2011

The Wisconsin Supreme Court Tuesday not only reversed Dane County Circuit Court Judge Maryann Sumi’s May ruling that Gov. Scott Walker’s budget repair bill was not law and could not be published as such. The state supreme court also vacated her ruling, wiped it off the books by declaring it “void ab initio” and gave her a humiliating lesson in state constitutional law, which should not be necessary for any sitting judge.

One can almost hear Judge Sumi saying “ouch!”

Walker’s bill will now be published, which is the final step in the process by which a bill passed by the legislature and signed by the governor becomes law. Publication is usually an automatic, uncontroversial act performed by the state’s secretary of state. But the current holder of that office, Democrat and union supporter Doug La Follette, announced Wednesday he will delay the publication process as long as he can, which is until June 28.

La Follette is just delaying the inevitable. The state supreme court’s 43 decision is final. It can’t be appealed any further because that court has the final word in cases interpreting the state constitution. The bill will become law.

Meanwhile, Judge Sumi must cope with public humiliation, because the language in the majority’s opinion was unusually harsh for law-speak.

“It is important for all courts to remember that [the state constitution] … provides: ‘The legislative power shall be vested in a senate and assembly,'” the majority wrote. It also observed state courts, under the state constitution, have “‘no jurisdiction or right to interfere with the legislative process. That is something committed by the constitution entirely to the legislature itself.'”

The supreme court added, “[i]f a court can intervene and prohibit the publication of an act, the court determines what shall be law and not the legislature. If the court does that … it invades the constitutional power of the legislature to declare what shall become law. This [a court] may not do.” Courts may not decide “the wisdom or lack thereof” of a particular enactment, the majority wrote, under the classic constitutional principle of separation of powers.

The mainstream media covers court decisions as if they were baseball games—one side won and the other side lost. While it certainly is true winners and losers are involved, the language used in court opinions conveys more-subtle messages to legal insiders.

Higher courts usually use mild wording in referring to lower court decisions. They say the lower court “erred.” Or that it “misapprehended” the law—as if to say, hey, this case is difficult, and legal misunderstandings are entirely understandable.

On Tuesday, though, the majority reminded Judge Sumi it “is important for all courts to remember” the doctrine of separation of powers, under which the legislature enacts laws, courts interpret them, and the executive branch enforces them. Lawyers reading this “reminder” fully understand the court’s bench-slap of Judge Sumi: The separation of powers doctrine is among the first lessons learned by first-year law students.

Judge Sumi had fair warning how wrong she was. In late May, the Wisconsin Department of Justice (DOJ), representing the Republicans in the legislature, filed papers with the state supreme court in this case urging it to vacate Judge Sumi’s May ruling, not just because it was erroneous but also because the sheer number of legal errors she made in it amounted to a constitutional violation. “These errors amount to a fundamental denial of due process and reveal the extent to which the circuit court was willing to exceed its jurisdiction in order to invalidate a politically controversial act of the Legislature,” the DOJ argued.

Such an accusation is highly unusual. Errors in law are typically said to warrant reversal, but they are almost never said to constitute, in and of themselves, a constitutional violation of due process rights.

Furthermore, some court observers said Judge Sumi should have refused to hear the case in the first place because of her conflicts of interest. According to Red State, her son has been employed by two unions representing state employees who oppose the Walker budget repair bill. Their opposition arises because the bill requires them to contribute to their own health care insurance premiums and their own pensions and because it limits collective bargaining to wages.

In addition, Judge Sumi’s husband made campaign contributions to three of the state senators who vamoosed to Illinois to prevent a vote on the Walker bill. Effectively, campaign contributions by her husband amount to contributions to the same candidates by Judge Sumi herself. In Wisconsin, there is no such thing as his-and-her money; it is their community property.

This entirely sordid litigation episode is now at an end. Walker’s budget repair bill will shortly be law. Amen.

Maureen Martin ([email protected]) is senior fellow for legal affairs at The Heartland Institute.