I’m not a lawyer, and when I read legalize my mind recoils in horror. However, I’ve been curious about the recent claim by Wisconsin’s Republican legislators that they are not obligated to follow the open meetings law when convening in special session. While there may be other issues for the courts to adjudicate concerning the process by which the Republicans passed the bill that decimates Wisconsin’s public unions, the charge that they violated the open meetings law seems to be front and center at the moment, and they adamantly claim that they complied with the letter of the law when they met with virtually no advance notice. Trying to evaluate this claim, I came up with the following information, which seems fairly reliable and at least partially relevant-
First, the Wisconsin Open Meetings Compliance Guide (written by Attorney General J. B. Van Hollen and dated August 2010) makes it clear that the open meetings law applies to all government bodies, with no exception made for the legislature. However, the law also seems to include a rather gaping loophole-
Generally speaking, the open meetings law applies to the state Legislature, including the senate, assembly, and any committees or subunits of those bodies. Wis. Stat. § 19.87. The law does not apply to any partisan caucus of the senate or assembly. Wis. Stat. § 19.87(3). The open meetings law also does not apply where it conflicts with a rule of the Legislature, senate, or assembly. [Emphasis added]
Okay, perhaps it’s not surprising that legislators should write a loophole for themselves that allows them to flaunt laws that apply to everyone else in the government. But the question remains as to whether there is a rule of the Legislature that allows a committee to ignore the open meetings law when convening in special session. On the Senate side, the relevant rule seems to be #93, particularly clause (2)-
Senate Rule 93. Special, extended or extraordinary sessions. Unless otherwise provided by the senate for a specific special, extended or extraordinary session, the rules of the senate adopted for the regular session shall, with the following modifications, apply to each special session called by the governor and to each extended or extraordinary session called by the senate and assembly organization committees or called by a joint resolution approved by both houses:
(1) No senate bill, senate joint resolution or senate resolution shall be considered unless it is germane to the subjects enumerated by the governor in the proclamation calling the special session or to the subjects enumerated by the committees on organization or in the joint resolution calling the extended or extraordinary session and is recommended for introduction by the committee on senate organization or by the joint committee on employment relations.
(2) No notice of hearing before a committee shall be required other than posting on the legislative bulletin board, and no bulletin of committee hearings shall be published.
(3) The daily calendar shall be in effect immediately upon posting on the legislative bulletin boards. The calendar need not be distributed.
(4) Any point of order shall be decided within one hour.
(5) No motion shall be entertained to postpone action to a day or time certain.
(6) Any motion to advance a proposal and any motion to message a proposal to the other house may be adopted by a majority of those present and voting.
Now, I’m really flying by the seat of my pants here, but as I read Senate Rule 93 (2), the only notice of a hearing that is required when in special session is a posting on a bulletin board. Assuming that the Republicans had the presence of mind to tack up a piece of paper on a bulletin board, it does appear that they did not violate the letter of the open meetings law by convening their committee with so little notice.
Although it might cause me to lose 10% of my paycheck sooner rather than later, perhaps that’s as it should be. After all, it’s the content of law that so many Wisconsinites find objectionable. The rather ugly process by which it was passed seems secondary.