March 25, Milwaukee Journal-Sentinel:
In a stunning twist, Gov. Scott Walker's legislation limiting collective bargaining for public workers was published Friday despite a judge's hold on the measure, prompting a dispute over whether it takes effect Saturday.
The measure was published to the Legislature's website with a footnote that acknowledges the restraining order by a Dane County judge. But the posting says state law "requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment."
March 26, Daily Kos:
The judge has enjoined "further implementation" of the act, including but not limited to its publication by the secretary of state. Interpreting that should be fairly straightforward. The judge meant for the law to remain in limbo, and preventing publication was just one method of enforcing that order.
March 30, Washington Post:
Dane County Circuit Judge Maryann Sumi chastised state officials Tuesday for ignoring her earlier order to halt the law’s publication.
“Apparently that language was either misunderstood or ignored, but what I said was the further implementation of (the law) was enjoined,” Sumi said during a hearing. “That is what I now want to make crystal clear.”
[...]
Sumi’s order on Tuesday told state officials to stand down from any further action to put the law into effect. This time, she warned that anyone who defied it would face sanctions. She did not say what those sanctions might be.
Yes, hello. The judge, as Chris noted earlier, said to hold off on implementing the law until the legal issues could be sorted out. So, you know, hold off on implementing the law until the legal issues can be sorted out.
Now, there's some reason to believe the other side has a case. And we should be prepared for that. While opponents argue that the passage of the bill was procedurally flawed, supporters say the legislature ought to be the final arbiter of whether or not its rules were followed. Well, that'd be the adult way of putting it. Instead, we get this kind of hyperbole:
Attorneys for the Department of Justice, which is representing the Republicans, contend the case means nothing because legislators are immune from lawsuits and Sumi has no authority to intervene in the legislative process.
“Her action today again flies in the face of the separation of powers between the three branches of government,” Assembly Speaker Jeff Fitzgerald, R-Horicon, said in a statement.
Enjoining implementation of the law doesn't actually implicate legislators, though. All of the relevant activity in that case takes place after the bill has left their hands. Which is probably why the plaintiffs want to drop them as parties to the suit. A successful suit need not constrain the legislators at all. So we can probably drop that argument right now.
But there's another angle of approach for Republicans on this. As Marquette University law professor Richard Esenberg notes in this article, there's Wisconsin Supreme Court precedent that says courts can't interfere with legislation until it is published and becomes law.
What about the notion that the judge's action "flies in the face of the separation of powers"? Well, not so much, really. Now, it may happen that the argument could be made if the judge seeks to permanently invalidate the law on procedural grounds. I don't know exactly what kind of power the Wisconsin courts have to impose remedies in, say, open meetings laws. And on the question of whether or not the bill still contains "fiscal provisions" components, there might be a better argument for leaving that decision in the hands of the legislators and their parliamentarians if the prohibition on such provisions were a rule of the legislature. But since it's actually enshrined in the Wisconsin constitution, I'd say it's fair game for a judge to review. Because that's what judges do.
Finally, on the question of whether or not a judge can temporarily restrain implementation in order to gather the facts, solicit arguments, and make a determination about whether or not the key questions are political in nature? No, that doesn't fly in anyone's face. Again, that's what judges do. For a legislator to say that "flies in the face of the separation of powers" actually does fly in the face of the separation of powers.