Finding that there are too many issues that require clarification, a state appeals court on Thursday sent the state attorney general's appeal of a decision barring implementation of Gov. Scott Walker's bill to restrict public sector unions to the state Supreme Court.
"Plainly, this case has broad statewide implications for the general public and those most directly affected by the challenged Act, in addition to those interested in the manner of its passage," wrote a three-judge panel of the Fourth District Court of Appeals, consisting of Judges Paul Lundsten, Brian Blanchard and Paul Higginbotham.
The court sent two questions to the Supreme Court: Can a circuit court judge strike down a legislative act as a remedy for violation of the state's open meetings law? If so, does the court have the authority to stop the secretary of state from publishing the bill before it becomes a law?
When the court will take it up is, for the moment, anyone's guess. Court spokesman Tom Sheehan said there is no specific time line for any case, and the next step is up to the court.
Four or more of the seven members of the Supreme Court must agree to take the case, he said.
Attorney General J.B. Van Hollen did not immediately comment on the appeals court's action.
"The decision whether to accept certification, and upon which issues, is up to the state Supreme Court. We are awaiting an order from that court," said Van Hollen's spokesman, Bill Cosh.
Dane County District Attorney Ismael Ozanne, who filed the open meetings complaint in court on March 16, could not be reached for comment.
On March 18, Dane County Circuit Judge Maryann Sumi issued a temporary restraining order barring Secretary of State Doug La Follette from publishing the bill, the last step before it becomes law. La Follette had planned to publish the bill on Friday.
Sheehan said Sumi's order remains in effect. A temporary injunction hearing in the case is scheduled for Tuesday before Sumi.
On Monday, the state Attorney General's Office asked the appeals court to allow it to appeal Sumi's decision and put it on hold.
The measure strips most state employee unions of most collective bargaining rights.
Ozanne had sought the restraining order when he filed a lawsuit alleging that a March 9 meeting of a legislative conference committee violated the state's open meetings law for several reasons, among them that the public was not given proper notice of the meeting and that the state Senate had never voted on the bill before the conference committee took it up.
The appeals court, in its statement asking the Supreme Court to take the case, wrote that cases cited by Ozanne and the AG's office in support of their positions are at odds with one another in their interpretations of the state constitution and should be rectified by the Supreme Court.
One of the issues, the court wrote, is whether or not the state open meetings law is viewed as protecting a constitutional right. If it is not, then Sumi has no authority to void the bill based on an alleged open meetings violation.
If it is viewed as protecting a constitutional right, however, the question becomes whether the court must wait until the legislative process is completed before acting, the court wrote.
La Follette said Thursday that he won't publish the law until the order is lifted. He added that it may never be published.
"I have to wait and see if the Supreme Court acts," he said.
La Follette accused Walker and Van Hollen of being "desperate" to get the law published, adding that they could simply pass the bill again — if they still have the votes among Republican state lawmakers.
La Follette said he's trying to proceed "very judiciously and very carefully."
On Thursday Ozanne filed an amended complaint with Sumi's office adding conference committee members state Sen. Mark Miller, D-Monona, and state Rep. Peter Barca, D-Racine, along with the committee and the state Senate and Assembly. Ozanne noted in another court filing Thursday that Miller and Barca have waived their legislative immunity from civil service, which had been invoked by the four Republican legislators who are defendants in the lawsuit.
La Follette, a Democrat, is also a defendant.
Also on Thursday, several unions representing thousands of state workers and teachers asked to join the case to advocate that the bill be voided.
— State Journal reporter Mary Spicuzza contributed to this article.