If the attorney general's office had its way, no court could overturn a law even if everyone agrees that the state legislature violated every requirement of the states open meetings law, Dane County District Attorney Ismael Ozanne wrote Tuesday.
Ozanne was responding to the attorney general's appeal of a court decision last week that blocked implementation of Gov. Scott Walker's budget repair bill over an alleged violation of the state's open meetings law by a hastily convened legislative conference committee on March 9.
"Nothing in the open meetings law limits the authority of a court, in the appropriate case, to enjoin publication of legislation that results from a violation of the open meetings law, so long as the balancing of public interests supports that outcome," Ozanne wrote.
The state Fourth District Court of Appeals is considering a motion filed Monday by the attorney general's office to accept its appeal of a decision issued Friday by Dane County Circuit Judge Maryann Sumi that temporarily barred publication of the bill into law.
On Monday, a three-judge appeals court panel consisting of Judges Brian Blanchard, Paul Higginbotham and Paul Lundsten asked Ozanne to cite legal authority that allows courts to take the action that Sumi did. Ozanne also has until late this afternoon to comment on other aspects of the appeal application.
In a 12-page brief, Ozanne found much disagreement with the AG.
In 1975, he wrote, when the state legislature rewrote the open meetings law, it did not exempt itself from injunctions as a possible remedy to violations of the law.
And voiding legislative actions that violate the law, Ozanne wrote, like the meeting of the legislative conference committee, must extend to subsequent actions taken afterward by the state Senate and Assembly.
And if the appeals court finds otherwise, he said, violations of the open meetings law would happen without consequence.
"The district attorney's power to enforce the open meetings law would be largely eviscerated in this situation," Ozanne wrote.
The legislature can itself remedy the open meetings law violations, Ozanne wrote, by starting over and re-enacting the law by following proper public notice.