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Justice Department Files Appeal to Restraining Order


MADISON – Today the Wisconsin Department of Justice filed an appeal in the 4th District Court of Appeals seeking to lift a Temporary Restraining Order placed on Secretary of State Doug La Follette's duty to publish 2011 Wisconsin Act 10.


Taken directly from the brief the Department asserts:


[The] “Court does not need to determine whether the Open Meetings Law was violated. Instead, it must only assess whether a court may issue an injunction against a party over whom it has no personal jurisdiction, whether a court may issue an injunction to interfere with the constitutional power of the Legislature to declare what shall become law, and whether a court may issue an injunction to suspend publication of a law on a legal basis that does not provide the court with the authority to declare the law void. If the court lacks any of these powers, the TRO must be promptly vacated.”


In summary, today's action by the Justice Department argues:


(1) The (Dane County Circuit) court had no jurisdiction over the legislators (who have legislative immunity) or the Secretary of State (who is not a proper defendant in an Open Meetings case and also enjoys sovereign immunity;


(2) The court may not interfere with the legislative process and enjoin the publication of a bill as the last step in the legislative process; and


(3) Even if the Budget Repair Act were published law, a court could not void it on the basis of an Open Meetings violation. Supreme Court decisions have made clear that a court may not void a law based upon the legislature's failure to follow rules of legislative process, whether those rules exist in statute or legislative rules. Courts may only evaluate whether constitutional procedural requirements were met.


The State's brief may be viewed at:


2011 file: