Thursday, March 31, 2011

In Sumi's court prophecy is law.....and testimony

Tom Foley:
Prophecy, is what Oliver Wendell Holmes, Jr. called the law.
On Tuesday, WisPolitics Budget Blog reported (my emphasis):
Dane County Judge Maryann Sumi issued an order this afternoon blocking further implementation of the collective bargaining bill.

Sumi stopped short of signing off on a proposed declaration that publication by the Legislative Reference Bureau does not make the law take effect. But she made clear during her ruling that "further implementation of the act is enjoined."...

Sumi struck that portion of the order, saying that testimony on that issue has not concluded. The case is set to resume Friday.
Today, that would be Thursday, the Journal Sentinel reports:
Madison — A state law to sharply curb union bargaining by public employees is not in effect, a Dane County judge ruled Thursday,...

"Based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011, evidentiary hearing, it is hereby DECLARED that 2011 Wisconsin Act 10 has not been published within the meaning of (state statutes), and is therefore not in effect," Dane County Circuit Judge Maryann Sumi ruled in a two-paragraph order.

So on Tuesday, sufficient testimony hadn't been reviewed to issue a ruling on whether or not Act 10 was law. That testimony was scheduled to resume on Friday.  On Thursday, however, the very same testimony that had been in evidence on Tuesday was cited as the reason for declaring Act 10 "not in effect". Huh?

I would like nothing more than to give Judge Sumi the benefit of the doubt, but even the most generous interpretation of her actions make her look bad.  What happened on Wednesday that allowed for this dramatic new ruling?  Perhaps the judge was able to divine Friday's testimony and rule preemptively.  On the other hand, perhaps the ruling was preordained and Tuesday's protestations about insufficient testimony were little more than a farce.

It seems easy for testimony to remain "uncontrovertd" if you just stop taking it, but hey, I'm not a lawyer.


Dad29 said...

Oh, yes, the execrable O W Holmes, who opined that neutering the 'feeble-minded' was just fine and dandy...

No wonder IT uses him as a guide-star.

illusory tenant said...

While the temptation to quote from Buck v. Bell is almost overwhelming, I'll resist because I take no delight in Dad29's desperation.

Dad29 said...
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Dad29 said...

Better phrasing:

It's not a large distance from "eliminating the feeble-minded" to "eliminating the addicts."

Since we already "eliminate" human beings who are not yet born, there's no judicial impediment to people of the O W Holmes persuasion, either.

illusory tenant said...

Père vingt-neuf, are you seriously suggesting that quoting OWH Jr. on a point of philosophy of law necessarily entails an endorsement of a specific decision of law that he made? Because if you are, then you've officially relinquished your already tenuous grasp on your one remaining marble.

And I am well aware of the devolution of Holmes Jr.'s reputation among the legal cognoscenti. So it's in that spirit that I mention him. In any event, he is right: law is prophecy in the sense that we attempt to predict how courts will rule.

As if you've never done it yourself.

Dad29 said...

law is prophecy in the sense that we attempt to predict how courts will rule

Only if one accepts 'the courts' as some sort of substitute for wisdom.

That would be fallacious. And while I think you retain more than one marble, you're betting both of them on the wrong horse.

illusory tenant said...

Only if one accepts 'the courts' as some sort of substitute for wisdom.

No, that acceptance is not required because I never said nor even implied any such thing nor did I say nor imply that court rulings are a species of "wisdom" (however your peculiarly subjective understanding of wisdom might be). There are two sets of adverse parties here and one is going to win and the other is going to lose. You can draw whatever inferences you like from that objective fact but please don't attribute them to me.

Dean Weichmann said...

OK, I admit I a confused.

You say that Sumi has not been clear? She has been inconsistent?

She had to repeat herself, so citing the same evidence again is somehow wrong?

How does she look bad to you?

Act 10 has a cloud of improper actions around it that has to be investigated and ruled upon before the law is put into effect.

I ain't a lawyer either so maybe you ought to ask one or two.

Jeremy R. Shown said...


Don't confuse the restraining order with invalidating Act 10.

The judge declined to invalidate the act on Tuesday, saying testimony was still pending. Before testimony could resume on Friday, she changes her mind and invalidates the Act. If she had heard enough to do so on Tuesday, why wait until Thursday. What happened on Wednesday?

If the Act has a cloud around it, as you say, why the strange sequence of events in invalidating the law?

Dean Weichmann said...

Gosh Jeremy, I think all she did was say that the act is not in effect...yet. It is delayed and possibly may be invalidated. She has not yet invalidated the act. The act can't be implemented till the it can be determined if the rules were followed. "Printing" the act on a website was an attempt to get around her orders and IMHO (NOT a lawyer) was contempt.

illusory tenant said...
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illusory tenant said...

Jeremy, Judge Sumi explained her decision on Friday morning in response to the AAG's objection (one among a litany of objections, some new, most continuing from previously). The AAG questioned Judge Sumi's use of the word "uncontroverted" in her order, stating that the AG's office had not yet presented its case "nor any case" -- the latter concession which I mischievously interpreted as a Freudian slip.

Judge Sumi reminded the AAG that witness lists had been solicited well in advance, and that the AAG had listed and called one witness, whose testimony had already been made and entered into the record. The plaintiffs, meanwhile, had called numerous witnesses, many of whom were subjected to what Judge Sumi described as "robust cross examination" by the AAGs.

While I think it's perceptive of you to make the point you have in this blog post, and you may find yourself unsatisfied by Judge Sumi's explanation, my sense is that she went away, read the law and the cases some more, and determined that there wasn't going to be any "controverting" evidence presented on Friday. And in fact there wasn't, but only more damaging testimony for the AG and the Fitzdefendants.

Judge Sumi "decided she'd heard enough," as your humble correspondent put it.

(Prior comment rev. 0 deleted for speling.)