It depends on who you ask. WI GOP Senate Majority Leader Scott Fitzgerald harbors no doubt, with the wispolitics.com budget blog reporting that he said:
It's law tomorrow.
Scottie Walker's Department of Justice, under the control of Scottie's partner-in-crime and fellow right-wing thug Attorney General JB Van Hollen, also finds nothing wrong with what happened yesterday:
The Wisconsin Department of Justice learned this afternoon that the Legislative Reference Bureau published Act 10. 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. The Secretary of State did not direct the publication of Act 10 by the legislative reference bureau and he is not in violation of the TRO issued by the Dane County Circuit Court.
But what happens when you ask an actual non-partisan lawyer, one under contract to the state legislature? Legal wonkery on the flip...
Peter Barca is the Democratic Minority Leader of the WI State Assembly. It was Barca who stood up at the Joint Committee Meeting and attempted to stop the proceedings on the grounds the meeting violated the state's open meetings law -- an argument that later laid the foundation for Dane County Judge MaryAnn Sumi's temporary restraining order enjoining publication and implementation of the bill.
Barca asked Legislative Council Staff Attorney Scott Grosz whether the collective bargaining bill had become law as a result of the Legislative Reference Bureau's publication of it yesterday. Here is Grosz's response:
Following your initial inquiry, our office spoke with LRB Chief Steve Miller. Mr. Miller indicated that the effectiveness of Act 10 is based on publication of the Act by the Secretary of State, rather than publication by the LRB. He indicated that the LRB published the Act in order to satisfy a statutory publication requirement that is separate from the publication duty of the Secretary of State, and that such separate and additional publication by the Secretary of State is required in order for Act 10 to take effect.
In reviewing the relevant statutes, it appears that the LRB reached its conclusion in reliance on the following points. Section 35.095, Stats., specifies obligations of both the LRB and the Secretary of State relating to the publication of acts. Section 35.095 (3) (a), Stats., directs the LRB to publish every act within 10 working days after its date of enactment. Section 35.095 (3) (b), Stats., directs the Secretary of State to designate a date of publication for each act, and specifies that the date of publication may not be more than 10 working days after the date of enactment.
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.
Let me try to put that into plain English. There are two statutes in Wisconsin that govern the publication and implementation of bills so that they become law. The statute that deals with publication says a) that the LRB must publish the law on the date established by the Secretary of State, and b) that the Secretary of State must order the publication of the law within ten days of its signing by the governor.
The statute that deals with implementation, furthermore, says that a law like the collective bargaining bill goes into effect the day after the Secretary of State orders its publication.
Grosz's legal theory, then, is that because the Secretary of State has not -- and cannot, under the temporary restraining order -- ordered the publication of the law, the law cannot go into effect. Grosz furthermore says that the director of the Legislative Reference Bureau agrees with that interpretation of the law.
When Democrats say the bill is not yet law, this is the legal opinion they are relying upon. When Republicans say it is law, what is their foundation? Here's Fitzgerald again:
Senate Majority Leader Scott Fitzgerald said he sent the head of the Legislative Reference Bureau a letter asking him if the agency could publish the law.
Fitzgerald, R-Juneau, said he began researching the possibility after a media report earlier this month mentioned it.
"It became clear that this was an option and they were on equal footing with the secretary of state," Fitzgerald said.
This bit of wonkery wouldn't be complete without mentioning the optimism of certain progressives in Wisconsin, who believe that a) the bill has already become law and b) it will now be easier to overturn it completely. You can read about that here.