Void ab Initio

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As I am sure most of you know, the Wisconsin Supreme Court in a 4-3 decision vacated the order of Judge Maryann Sumi enjoining the bill passed by the Wisconsin legislature regarding public employee unions.  The court divided along partisan lines.  The bluntness of the majority opinion is something to behold.

IT IS FURTHER ORDERED that all orders and judgments of the Dane County Circuit Court in Case No. 2011CV1244 are vacated and declared to be void ab initio.  State ex rel. Nader v. Circuit Court for Dane Cnty., No. 2004AP2559-W, unpublished order (Wis. S. Ct. Sept. 30, 2004) (wherein this court vacated the prior orders of the circuit court in the same case). 

Declaring the orders of a trial court void ab initio is an unusual step for an appellate court.  It basically says that the trial court completely misconstrued the relevant law from the beginning, and is not to be trusted by the appellate court simply reversing the trial court and remanding the case back to the trial court.  Instead the Supreme Court ruled on all of  the issues in the case itself, with Judge Sumi now tossed out of the case by the action of the Supreme Court.  

This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.  It is important for all courts to remember that Article IV, Section 1 of the Wisconsin Constitution provides:  “The legislative power shall be vested in a senate and assembly.”  Article IV, Section 17 of the Wisconsin Constitution provides in relevant part:  “(2) . . . No law shall be in force until published.  (3) The legislature shall provide by law for the speedy publication of all laws.”

You don’t get blunter than that in the law.  Judge Sumi is held by the Court to have usurped the power of the legislature!

The Court then notes that what Judge Sumi attempted to do, enjoin publication of a bill in order to prevent it from becoming law, was in direct defiance of a prior case decided by the Wisconsin Supreme Court:

In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the court focused on fundamental separation of powers principles and addressed whether a court has the power to enjoin publication of a bill duly enacted by the legislature.  The court first explained that “governmental powers are divided among the three departments of government, the legislative, the executive, and judicial.”  Id. at 466-67.  The court then explained that the “judicial department has no jurisdiction or right to interfere with the legislative process.  That is something committed by the constitution entirely to the legislature itself.”  Id. at 467.  The court held that “[b]ecause under our system of constitutional government, no one of the co-ordinate departments can interfere with the discharge of the constitutional duties of one of the other departments, no court has jurisdiction to enjoin the legislative process at any point.”  Id. at 468.

The Court then rejected the argument that failure by the legislature to follow the Open Meetings Law invalidate the law regarding public employee unions:

  It also is argued that the Act is invalid because the legislature did not follow certain notice provisions of the Open Meetings Law for the March 9, 2011 meeting of the joint committee on conference.  It is argued that Wis. Stat. § 19.84(3) required 24 hours notice of that meeting and such notice was not given.  It is undisputed that the legislature posted notices of the March 9, 2011 meeting of the joint committee on conference on three bulletin boards, approximately 1 hour and 50 minutes before the start of the meeting.  In the posting of notice that was done, the legislature relied on its interpretation of its own rules of proceeding.  The court declines to review the validity of the procedure used to give notice of the joint committee on conference.  See Stitt, 114 Wis. 2d at 361.  As the court has explained when legislation was challenged based on allegations that the legislature did not follow the relevant procedural statutes, “this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments.”  Id.at 364.  “[W]e will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns.”  Id.  The court’s holding in Stitt was grounded in separation of powers principles, comity concepts and “the need for finality and certainty regarding the status of a statute.”  Id. at 364-65. 

Go here to read the entire decision.  A stunningly good decision in that it is a reminder that courts should refrain from acting as one judge super legislatures and that trial courts are required to follow the precedents set by higher courts.  It is also a major setback in the ever popular tactic on the Left to win through the courts what they are unable to win at the ballot box.

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  1. cut/paste from earlier comment:

    It’s all good.

    WI Supreme Court upheld Gov. Walker’s bill reforming public employee unions – abolishing automatic withholding of dues, which was the main cause of all this thuggery. Less taxpayer money to fund lib/looter candidates’ campaigns.

    The legislature, a judicial special election (where union organization should have been decisive), and the WISC all righteously beat them down.

    And, all along they showed us that they are thugs and, even worse, hurt a lot of (Special Olympics) little children.

  2. Declaring the orders of a trial court void ab initio is an unusual step for an appellate court. It basically says that the trial court completely misconstrued the relevant law from the beginning, and is not to be trusted by the appellate court simply reversing the trial court and remanding the case back to the trial court.

    I don’t know, I wouldn’t be so strong in stating void ab initio that way. Generally, it occurs when the trial court acted without jurisdiction, therefore the order it entered had no force or effect from the moment it was entered. It is usually not a comment on the trust to be placed in the trial court or its legal acumen, rather simply a statement that the order lacks validity from a legalstandpoint. Many jursidictional questions can be close calls, with reasonable arguemtns both for and against. teh question of separation of powers and what legisaltive actions (or failure to act) a court can and cannot review is not a simple question.

  3. As a general rule I don’t disagree with you cmatt, except that in those situations normally the case is remanded back to the trial court with the expectation that the trial court will follow what the appellate court orders. It is far more unusual here where everything the trial court did is vacated, and the apellate court takes the case away from the trial court and decides it completely itself. I have not seen that too often, and I think the decison here was intended to be a slap at the trial judge, especially when the rest of the opinion is considered.

  4. Except now the unions are suing over the constitutionality of the law, saying it treats different public sector unions unequally – some lose their collective bargaining rights, while others – such as police, fire, et al – get to keep them. One hurdle crushed, another to get over.

    What’s your opinion on their lawsuit? Does it depend on the judge hearing the case, or does it have merit?

  5. The judge hearing the case usually has a vast impact on litigation. I doubt if it has merit since government contracts usually do not come under equal protection analysis unless discrimination is evident on some basis such as race or sex. A government is under no obligation to recognize public employee unions at all, so the argument that a state government may not treat them differently under statute strikes me as farcial on its face. Many states, for example, restrict the ability of certain unions, usually police and firemen, to strike, and those restrictions have been upheld time and again.

  6. Turning out to be “the Lawyer Relief bill.” The unionistas are already in federal court trying yet another legal maneuver to block implementation. Meanwhile the Democrats, as usual, are doing everything they can to be obstructionist including prolonging recall elections in senate districts where they were challenged. WI, my home for the past 15 years, is a national embarrassment.

  7. Joe,

    NY has WI beat by miles.

    They’re about to legislationally sanctify sodomy and we hear not one word from any church leader anywhere in the Umpire Stake.

    Plus, they keep voting for sordid solons like Anthony Weiner.

  8. Mr. Shaw. Re Weiner, not any more. And, yes, I was born and bred in NYC and know all too well about its sordid past and present.

  9. T. Shaw,

    While I agree with youur sentiment (NYS is worse than WI), it is inaccurate to state that nno clergy on NYS has spokeen against the pending sanctificattion of homosexual filth by the NYS legislature. The USCCB president, Archbishop Timothy Dolan of NYC, has issued the obligatory statements against tthis at the USCCB meeting televised yesterday afternoon on EWTN TV. I got home from work about 5 pm and caught somethinng about him speaking on this very topic. Please see this web link for more details:


    Nevertheless, you are correct. Bishop Hubbard of Albany, NY – the guy who eulogized Andy “I am an adulterer” Cuomo who is intent on sanctifying godless sodomy and who lives with his concubine and to whom Hubbard distributed Holy Communion – has done much to damage the Church in NYS. Yet he remains the USCCB social justice flunky. NYS is filled with like-minded clergy, and thus when I visit my children in Syracuse, NY, I find more than half the pews in the Catholic Churches empty.

    The clerical embracing of godless liberal progressive demokracy has done much to weaken the Church in the Empire State. Sorry, folks. That’s the way it is. Too few good clergy and too many heterodox ones

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