The anti-union law was "published" today despite a judge's issuance of a TRO to prevent publishing the law. Here is the "published" law. Some officials, including Secretary of State Doug La Follette, are not sure whether this publication was lawful or not and need time to obtain a legal opinion. I also did not have time this afternoon to do legal research. But, a little googling indicates that there may be at least two issues: (1) If the publication was effective, what is the impact of violating the spirit and intent of the TRO issued by the judge to prevent publication of this law; and (2) Was the publication proper in terms of who posted it and where the law was published? Not only was the law apparently published at the wrong place, but it did not exactly provide the type of notice to the public envisioned by the reason for publication. The prevailing view is that the GOP posting of a link to the anti-union law does not constitute the publication required by law to render it legally effective. But it does show, once again, how the GOP love to try to violate the law.
Update #1: Secretary of State La Follette instructed the LRB to rescind earlier instructions to publish the bill today and remove any reference to March 25 as publication date and not proceed with publication until he informed them of a new publication date. This is consistent with my interpretation below that the statutes appear to envision a publication process whereby the role of the Secretary of State is to designate the publication date and order the LRB to do the actual publication.
After the restraining order was issued on March 18, La Follette sent a letter that same day to the reference bureau rescinding earlier instructions to publish the bill on Friday. "I further instruct you to remove all reference to March 25, 2011, as the publication date and not to proceed with publication until I contact you with a new publication date," his letter said.
Update #2: A staff attorney with the Wisconsin Legislative Council issued an opinion that the LRB and Secretary of State have different roles in the publication process, but the law is not legally effective until the Secretary of State, not the LRB, publishes the law:
Generally, as we discussed, it is my understanding that the LRB did not intend for its action to independently determine the effectiveness of Wisconsin Act 10, and that further action by the Secretary of State is required in order for Act 10 to take effect. The following is a brief summary of our conversation and the statutory analysis on which I believe the LRB relied in reaching its conclusion.
While s. 35.095, Stats., refers to publication‐related activities of both the LRB and the Secretary of State, s. 991.11, Stats., makes specific reference to the publication activities of the Secretary of State for purposes of determining the effective date of an act. Section 991.11, Stats., states that every act that does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated under s. 35.095 (3) (b), Stats. As described above, s. 35.095 (3) (b), Stats., refers to the publication activities of the Secretary of State, rather than the publication activities of the LRB. Accordingly, while certain statutory obligations regarding publication of Act 10 have been satisfied by the LRB, the statutory obligation that relates to the effective date of Act 10 has not yet been satisfied by the Secretary of State, and at this time the Secretary’s actions remain subject to the temporary restraining order issued in Dane County Circuit Court.
Update #3:Assembly Minority Leader Peter Barca says no legal effect from publication today:
"In conversations this evening with Legislative Council attorneys, I was informed that it is their opinion, as well as the opinion of the Legislative Reference Bureau director, that Act 10 will not take effect based on the actions taken by the Legislative Reference Bureau late this afternoon.
…"Official publication by the Secretary of State is required for this act to go into effect. The Secretary of State, the only Constitutional officer with the power to publish law, is prohibited by court order from publishing this Act.
Update #4: Press release DA Ozanne's Office just emailed me:
LEGISLATIVE REFERENCE BUREAU’S ACTIONS ARE OF NO LEGAL SIGNIFICANCE
I was surprised to learn shortly before 5 p.m. this afternoon that, despite Judge Maryann Sumi’s temporary restraining order, an effort was undertaken to try and make 2011 Wisconsin Act 10 (Governor Walker’s Budget Repair Bill) effective. I was even more surprised to learn that the impetus for an attempt at publication, contrary to Judge Sumi’s order, came from a named defendant in the lawsuit.
As Judge Sumi said in issuing the temporary restraining order enjoining publication of the bill on March 18, 2011:
Finally, the necessity to preserve the status quo. I think relief is essential to preserve the status quo, which is what exists here and now. The bill has passed. But it has not been published.
I believe that, pursuant to Judge Sumi’s order, the status quo is preserved. This case, including the legal significance of today’s actions, should be resolved in a court of law. I look forward to presenting our case on behalf of the People of the State of Wisconsin Tuesday morning, March 29, 2011, at 8:30 a.m.
Update #5: In the TRO, Judge Sumi states the next step in implementing the anti-union law is publication by the Secretary of State:
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.
The Wisconsin Constitution requires publication but does not state who will do the publication.
Therefore, today the anti-union law was "published," if one can call a link on a website publication, at the website of the Wisconsin State Legislature. The only publication I found was to the website of the Wisconsin State Legislature with a link to the text of the law.
If you click onto this obscure link, the publication of this anti-union law contains a footnote stating:
Pursuant to section 35.095 (3) (b), Wis. Stats., the secretary of state designated March 25, 2011, as the date of publication for this act. On March 18, 2011, the Dane County Circuit Court enjoined the secretary of state from publishing 2011 Wisconsin Act 10 until further order of the court.
Section 35.095 (3) (a), Wis. Stats., requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment.
The reason for the footnote is that the law was not published by the Secretary of State La Follette, who everyone believed had the legal duty to publish the law. The GOP think they have a loophole here because the TRO was technically not violated given that it was directed at the Secretary of State:
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.
The Wisconsin Department of Justice now says that it is the Legislative Reference Bureau that has a legal duty to publish laws:
As noted in the published act, section 35.095 imposes a mandatory, ministerial duty on the legislative reference bureau to "publish every act ... Within 10 working days of enactment." In the same statute, the date of enactment is defined as the approval of a bill by the governor. No action by the Secretary of State is required by this section for the legislative reference bureau to publish an Act.
No action is required by the Secretary of State? Section 35.095(3)(a) states that 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." However, the next section of this same provision states that "the secretary of state shall designate a date of publication for each act and every portion of an act which is enacted by the legislature over the governor's partial veto. The date of publication may not be more than 10 working days after the date of enactment." Thus, it may be that the Legislative Reference Bureau does the actual publication AFTER the Secretary of State designates the date for publication. In this case, the Secretary of State designated today for publication but that was before the TRO prohibited publication today, effectively removing the Secretary of State's prior action of designation.
The Legislative Reference Bureau appears to agree with this interpretation of those statutes. The Legislative Reference Bureau director agrees that this publication today does not mean that the law can become effective:
Legislative Reference Bureau director Steve Miller insisted the action doesn't mean his action will result in the law taking effect Saturday. He says that won't actually happen until Secretary of State Doug La Follette orders the law published in a newspaper.
"It's not implementation of all," Miller said. "It's simply a matter of forwarding an official copy to the secretary of state."
This interpretation would also be consistent with the practice and opinion of the Legislative Reference Bureau since 1994. According to a document called the Wisconsin Blue Book written by the Legislative Reference Bureau to explain the Wisconsin legislative process to enact a law in 1994, it is the Secretary of State who publishes a notice of enactment in the official state newspaper:
Once a bill is enacted, the secretary of state publishes a notice of enactment in the official state newspaper. The official state newspaper is designated by a joint resolution of the legislature and continues in that status until a new designation is made. The Milwaukee Sentinel has been the official state newspaper since May 31, 1984, based on 1983 Enrolled Joint Resolution 46.
The 2004 Blue Book similarly states:
The secretary of state must publish the act’s number, title, and original bill number within 10 working days after the date of enactment in the newspaper designated as the official state paper for publication of legal notices (currently the Milwaukee Journal Sentinel). The notice contains the date of enactment and date of publication and states the act is available for public distribution. The act takes effect the day after its assigned publication date, unless another effective date is specified in the law itself.
The 2009-2010 Blue Book also says publication lies with the Secretary of State:
The secretary of state must publish the act’s number, title, and original bill number within 10 working days after the date of enactment in the newspaper designated as the official state paper for publication of legal notices (currently the Wisconsin State Journal). The notice contains the date of enactment and date of publication and states the act is available for public distribution. The act takes effect the day after its assigned publication date, unless another effective date is specified in the law itself.
A recent newspaper article states that the Wisconsin State Journal of Madison is the official state newspaper in 2011:
The law can’t become effective until one day after it is published in the official state newspaper – the Wisconsin State Journal of Madison.
I did not find the law published at their website.
Typically, a law becomes effective one day after publication. Gov. Walker intends to implement this "law" that was published in violation of the spirit and intent of the TRO under the theory apparently that publish is publish no matter where the law is published, or the purpose of publication:
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."
La Follette and the two top officials at the reference bureau - Chief Stephen Miller and Deputy Chief Cathlene Hanaman - could not be reached Friday. The Legislature is run by Republicans, but the reference bureau is a nonpartisan agency widely respected by both political parties.
Senator Jon Erpenbach (D-Middleton) said it is not clear whether this publication actually effected an enactment of the law:
It is unclear if this publishing by the Legislative Reference Bureau enacts the law without publication by the Secretary of State.
What is clear is that Senator Fitzgerald's action ignored a temporary restraining order by a circuit court judge. Regardless of how Senator Fitzgerald feels, or what he thinks, there is no excuse for ignoring a court order and the judicial process.
Secretary of State La Follette says it is not clear what the legal effect of the publication is without a legal opinion:
But La Follette wasn't so sure, saying it wasn't clear what the action means.
"I think we're going to have to get some legal opinion on this," he said.
And Republican Senate Majority Leader Scott Fitzgerald said the action means the law takes effect Saturday.
"It's my opinion it's published, it's on the legislative website, it's law," Fitzgerald said.
Given that the purpose of publication is to inform the public about a new law, that this publication was not in the official state paper for publication of legal notices, and seems to have only been published as a link at the Legislature's website, and that the intent and spirit of the TRO was violated, it's not looking good for the GOP's latest endrun around the legislative process.