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Friday, March 25, 2011

Wisconsin Publishes Budget Repair Bill Despite TRO

The Legislative Reference Bureau (LRB) in Wisconsin has published the budget repair bill which is subject to a TRO against the Secretary of State.

The LRB felt that the law could be published, and take effect tomorrow [see Update], because the LRB was not a named party in the court proceedings and arguably not subject to the TRO.  As reported by JSOnline:
The legislation was published Friday with a footnote that acknowledges the restraining order, but says state law "requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment."

The restraining order was issued against Democratic Secretary of State Doug La Follette, but the bill was published by the reference bureau. The reference bureau was not included in the temporary restraining order.

Laws normally take effect a day after they are published, and Gov. Scott Walker's administration is proceeding as if it takes effect Saturday.

"Today the administration was notified that the LRB published the budget-repair bill as required by law," said a statement from Administration Secretary Mike Huebsch. "The administration will carry out the law as required."
Although Republicans control the legislature, the LRB is considered non-partisan, according to JSOnline:
The Legislature is run by Republicans, but the reference bureau is a nonpartisan agency widely respected by both political parties.
Here is the applicable language from the TRO, and it certainly seems to apply specifically to the Secretary of State, not all of Wisconsin government:
I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.  The next step in implementation of that law would be the publication of that law by the Secretary of State. He is restrained and enjoined from such publication until further order of this court.
According to Wisconsin State Journal, the LRB acted alone:
Under state statutes, the secretary of state is required to set a publication date no more than 10 working days after a law is signed. A separate law requires the Reference Bureau to publish legislation within 10 days of enactment.

No action by the secretary of state is required for the Reference Bureau to act, Department of Justice spokesman Bill Cosh said, adding that La Follette did not direct the publication of the law and is not in violation of a temporary court order barring him from publishing the law.
The Dane County District Attorney appears to have made a tactical error in not naming all necessary parties.  The D.A. already has served an Amended Complaint after the TRO to add parties, but still does not name the LRB as a party.  The Amended Complaint does name the Assembly and Senate as entities, but if the LRB is independent, it may be necessary to serve a Second Amended Complaint. 

That said, I'm not sure where this gets the State other than getting the law into effect and preventing arguments later that the failure to comply with the 10 day deadline nullified the votes.

Even if technically the LRB did not violate the TRO, Democrats will be back in Court as soon as they can find a Judge (Judge Sumi is not back until Tuesday), to get a TRO which covers all necessary parties.  Of course, at that point, the law will have taken effect, so the issue will be implementation of the law, not whether the Secretary of State could publish it. 

Also expect contempt proceedings, as Democrats will argue that the LRB was covered.

Updates:  The Green Bay Press Gazette quotes the head of the LRB as describing the publication as ministerial, and not necessarily meaning the law will be in effect:
But the head of the bureau says its action was purely ministerial and wouldn’t result in the law taking effect. Steve Miller says the law won’t actually take effect until Secretary of State Doug La Follette orders it published in a newspaper.

La Follette, though, says it’s not clear what the action means.

Gov. Scott Walker’s office says it’s been notified that the law had been published and will carry it out as required. Walker signed the measure March 11.
So does the bill become "law" tomorrow?  This analysis by the pro-union Center for Media and Democracy indicates that the law is effective under the statutes:
News outlets are reporting that the Legislative Reference Bureau has published Governor Walker's union-busting bill, despite a court order preventing publication on grounds that the bill's passage likely violated Open Meetings laws. A quick review of the statutes suggests the bill may have become law, but also suggests the entire court battle may have been focused on the wrong characters, and that the state has arguably violated the court order....

Section 991.11 of the Wisconsin Statutes states that "every act . . . shall take effect on the day after its date of publication as designated under [Section] 35.095 (3)(b)."

Section 35.095(3)(b) states that the Secretary of State shall designate a date for publication not more than ten working days after the date of enactment. Note that this does NOT say that the Secretary of State actually publishes the act: according to § 35.095(3)(a), the Legislative Reference Bureau is tasked with publication, not the Secretary.

After the bill was passed by both houses and signed by Governor Walker, Secretary of State LaFollette designated March 25 (today) as the publication date. This designation appeared to fulfill his duty under § 35.095(3)(b). Judge Sumi's order enjoined LaFollette from publication (a duty not noted in § 35.095(3)), but the order did not alter the March 25 publication date.
Added:  Commenter Simon links to an e-mail from the legislative counsel indicating more than LRB publication is needed, but the e-mail is not categorical, and simply summarizes preliminary indications.

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  1. Good - beating the Left at its own rancid game of splitting hairs. It's just necessary.

    "Because the Only Good Progressive is a Failed Progressive"

  2. Well, at least now it can "ripen"

  3. A couple of Madison PEU's have filed another lawsuit. This one charges that the bill does not treat all public employees equally--that is, that police and fire personnel were NOT included in the bill.

    They'll be filing lawsuits until the State runs out of paper, which is why Walker's just going to go ahead and implement the law.

    Either he reduces the benefit cost OR we lay off 10-12K public employees Statewide.

  4. I do say their 9 lb balls have grown to 10 pounders.


  5. http://www.thewheelerreport.com/releases/March11/0325/0325barcaatty.pdf


  6. It's good to see the professional hysterics on the Left who go ballistic about every jot and tittle of legal niceities get hoist by their own petard. Actually, the good burghers of WI, of which I am a native son, detest excessive litigation and the hysteria that accompanies all the Leftist agitprop, so pretty soon I imagine they'll have their bellies full.

    Short term, however, the Commissars are trying to get their cadres worked up over a Supreme Court election on April 5th, and this thumb in the eye, even though it's by a non-partisan State Commission, might get a few extra voters out to try to pack the Supremes with leftoids.

  7. The reason why Simon's link is relevant is, subsequent to the Sumi TRO, La Follette rescinded his designated date of publication.

  8. Either he reduces the benefit cost OR we lay off 10-12K public employees Statewide.

    If they're the vermin that blocked access to the capitol building, tried to pin down one of the GOP Assemblymen, threatened Ann Althouse, etc. - that might actually be the preferred alternative.

  9. I'd also be "publishing" a bunch of pink slips for a bunch of teachers that were going to be fired prior to the collective bargaining law now stalled in limbo. I'd pro-rate it and adjust the layoffs accordingly. The longer they stall, the more teachers (and others) get laid off.

  10. The section 35.095 (3) (a) has had different language in the past

    Up to 1981 it read.

    35.095 (3) (a) Every law shall be published once in the official state paper within 10 working days after its date of enactment

    Then from 1981 to 1991 it read.

    35.095 (3) (a) The secretary of state shall publish every act and every portion of an act which is enacted by the legislature over the governor’s veto within 10 working days after its date of enactment .

    Then in 1991 it was changed to.

    35.095 (3) (a) The legislative reference bureau shall
    publish every act and every portion of an act which is enacted by the legislature over the governor’s partial veto within 10 working days after its date of enactment.

    This would seem to me to show that the intent is that the act of “publishing” the law is done by the legislative reference bureau not the secretary of state.

  11. Well, the good news is that when Obamacare was declared unconstitutional by a judge, the left uniformly agreed that it was now unconstitutional and couldn't go forward, so at least they are consistent.

  12. Bill, you might find this by a member of the Marquette Univ law school useful:

  13. Can the lawyers who sued the wrong person to stop publication of the law, be sued for malpractice for not including an indispensable party?
    This is just a delicious situation. You can't unring this bell (publication). While theccourt might consider contempt the publication happened so now Socialist Sumi will have to consider the merits.

  14. geoffb, some other portion of Wis. Stats. amplifies on the portions that you note and requires that publication be in the officially designated state newspaper (the Wisconsin State Journal now). Also being reported (with links to a .pdf of the letter) is that Doug La Follette specifically wrote to the LRB not to publish until the court challenge is resolved, but the LRB answers to the legislature, and specifically to the Senate majority leader, who ordered the LRB to publish. So what they have there now may be quite the constitutional crisis, as the executive branch aka La Follette under order from the judicial branch aka Sumi has been countermanded by the legislative branch aka Senate majority leader Fitzgerald.

    It will be interesting if and when the AG (a Republican, Van Hollen) weighs in; so far, the DoJ is just saying that he's thinking through it all. And it will be interesting to see if there is an appeal to the courts again, expedited to the state Supreme Court, to resolve the constitutional battle and balance-of-powers question in this. That would be too bad for the Republican incumbent on the high court, a crucial seat, only 10 days away from election -- as the signs had been that the high court would not go near the Open Meetings Law violation case before the election.

    But the question of whether a law is in effect would seem to mean expediting to the high court -- in part as an estimated five percent of the state's workforce works for the state so do not know if their pay has started to take the take-home pay hit of as much as 10 percent yet, if the law is in effect -- or not, if it is not.

  15. geoffb, here's one of the pertinent statutes still extant re the role of the Secretary of State:

    (b) "Date of publication" means the date designated by the secretary of state. . . .

    Also useful is the section of statutes regarding the roles and responsibilities of the legislative council and legislative reference bureau.

  16. geoffb, see Wis. Stats. 35.095, "Acts":

    (1) Definitions. In this section:

    (a) "Date of enactment" means the day on which a bill becomes an act through approval by the governor, passage over the governor's veto or failure of the governor to act on it or the day on which a portion of a bill which has been vetoed in part is enacted over the governor's partial veto.

    (b) "Date of publication" means the date designated by the secretary of state. . . .

  17. If you want something screwed up, have the government do it! Lawless Dimicrat fascist commie traitors who should be jailed at their own expense.