Friday, March 25, 2011

A Primer on Publication of the Collective Bargaining Law

I have made clear my view that the attempt to enjoin publication of the collective bargaining law and Judge Sumi's TRO enjoining publication was wholly without merit. Challenge the law if you wish but it seems clear that you must wait until after it's published. The Supreme Court's decision in Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943) makes this clear.

In an odd twist, the law was nevertheless published today and will become effective tomorrow. This isn't defiance of the judge's order by the Republicans or Scott Walker. They didn't do it. It's not defiance of the law at all. It seems to have been mandated by the law. Let's work through it.

It used to be that the Secretary of State had the responsibility for publication of laws. (Thus the defendant in Goodland was the Secretary of State.) This is no longer the case. Sec. 14.38(10) provides that the Secretary shall "[n]o later than the next working day following the deposit of an act in his or her office, provide written notice to the legislative reference bureau of the act number and date of enactment, and the designated date of publication of the act under s. 35.095." Secretary of State LaFollette did that, specifying that the law would be published today - March 25, 2011. This was latest day that he could have done so under sec. 35.095(3)(b) which provides that "[t]he 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."

But publication itself is not the responsibility of the Secretary of State. It is the responsibility of the Legislative Reference Bureau. It is obligated to "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 presumably be on the date designated by the Secretary of State, although it is not clear that this obligation is contingent upon the designation of a date by the Secretary.

The order in Ozanne was directed to the Secretary of State. Judge Sumi held that "[t]he next step in implementation of the law would be publication of that law by the Secretary of State." That assumption was incorrect. She then ordered that "[h]e is restrained and enjoined from such publication until further order of this court."
Secretary of LaFollette has complied with that order.

But, the thing is, he had no responsibility for the law's publication. The Legislative Reference Bureau was obligated to publish the law. It's duty is mandatory and not something that the Governor- or the Secretary of State - can either mandate or stop. The LRB did this because the LRB had to do it. If District Attorney Ozanne wanted to stop it, he should have sued the LRB. He didn't.

Now I understand that people will say that the LRB should have figured out what Judge Sumi wanted and did what the DA did not ask for and she did not order and that it was not obligated to do. The law doesn't work that way. It doesn't allow state agencies to do whatever they think is right or whatever they think a judge in a case to which they were not a party would have ordered them to do had they been a party. The LRB had a clear legal obligation that was not altered by any court order and it followed it.

So what is the effect of publication? There are some suggestions that the chief of the LRB thinks that some further action by the Secretary of State is required to make the new law effective. Maybe, but probably not. Let's break it down.

The Secretary of State does have publication responsibilities. He is required to "[p]ublish in the official state newspaper within 10 days after the date of publication of an act a notice certifying the number of each act, the number of the bill from which it originated, the date of publication and the relating clause." I would think that Judge Sumi's order prevents him from doing that.

But is that necessary for the law to become effective? In a word, no. Sec. 991.11 provides that "[e]very act and every portion of an act enacted by the legislature over the governor's partial veto which 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)." Indeed, the requirement to publish in the state newspaper is expressly required to happen ten days after the date of the publication. Any argument that "publication" means publishing in the state newspaper would seem, as far as I can tell, to be frivolous.

But apparently the LRB wants to say (according to an e-mail from a staff attorney) that sec. 991.11's reference to sec. 35.095(3)(b) is meant to refer to the "publication activities of the Secretary of the State, rather than the publication activities of the LRB." The point is, I suppose, that 35.095(3)(b) refers to the publication date specified by the Secretary that is not to be more than ten days after enactment of the act. The e-mail states that the "statutory obligation that relates to the effective date of Act 10 has not yet been satisfied by the Secretary of State."

One's initial reaction is that it has been satisfied. The Secretary is required to designate a publication date and he did so. The "publication activity" then becomes the responsibility of the LRB. But Secretary LaFollette did attempt to rescind his designation of the publication date. The issue now becomes whether that means anything.

The statute does not say that he has the power to rescind the publication date. Indeed the statutory framework does not seem to contemplate that there can be a publication date that is distinct from the date that the LRB publishes. There is a single date that is to be specified by the Secretary but that, in any event, must be accomplished by the LRB within ten days of enactment. The best reading of 35.095(3)(a)and (b) is that there is a single date of publication because there is no act of publication that is required of the Secretary to make the law become effective. The LRB seems to think that the Secretary has some further publication obligation that is related to the Act's effectiveness. But there does not seem to be anything that can fairly be called that. All he can do is pick another day for something that the LRB had to do by today.

The Secretary is supposed to inform the LRB of its obligation. The LRB is supposed to carry it out. If you want to stop publication (which, under Goodland, a court may not do), you had better sue the LRB.

In any event, Secretary LaFollette was not ordered to rescind his designation of a publication date by Judge Sumi. Her order only enjoins him from doing something - publishing - that he had no power to do. Perhaps recission of the date is to be implied from her order but one would have expected both the DA and the judge to be more precise about that.

At the end of the day, it's possible to argue that the law will not go into effect tomorrow but the greater likelihood is that it will.

Two final points. I am sure some folks will argue that the law has become effective only because of the errors of the Dane County DA and Judge Sumi. That's not right. The statutory framework here - one that confers only ministerial duties on the Secretary of State to choose a publication date and the LRB to publish - is consistent with the notion that publication is part of the legislative process. District Attorney Ozanne and Judge Sumi never had the authority to stop publication and their failure to read the law has only resulted in their own errors being negated. There is poetic justice in that.

And the larger point. The case does not go away. If District Attorney Ozanne wants to stop implementation of the law, the ball is in his court. He probably has some work to do. It's not clear that he has standing or the proper defendants. But that's a whole other set of issues.

UPDATE: My colleague Ed Fallone is quoted as saying that publication was unconstitutional. You never know how accurate quotes are but his point seems to be "you cannot take powers away from the Secretary of State, the person whose job it is to publish a law."

I'd like to hear Ed's arguments, but, if that's the point, I think it's wrong. The Wisconsin Constitution does not give the Secretary of State the power or duty to publish laws. To the contrary, it is the legislature that is empowered by Art. IV, sec. 17 "to provide by law for the speedy publication of all laws." The Secretary of State's only constitutional duties are to "keep a fair record of the official acts of the legislature and executive department and ... when required [to]lay the same before same and all matters relative thereto before either branch of the legislature." Art. VI, sec. 2. He is also to "perform such other duties as shall be assigned him by law." Id. In other words, he keeps records and does whatever else the legislature enacts into law for him to do.

He used to have responsibility to publish laws. As noted above, that was the case in 1943 when the Supreme Court decided Goodland v. Zimmerman. Four years earlier, in State ex rel. Martin v. Zimmerman, 233 Wis. 16, 288 N.W. 454
(1939), the Court, in ordering the Secretary to publish a law that he thought was unconstitutional, treated the publication obligation as a ministerial duty commanded by the legislature. ("When an act so approved reaches the office of the Secretary of State, the Legislature has commanded that he immediately publish it.")

Now, if the Secretary has only duties (other than keeping a record of official acts) that are prescribed by law, then those duties - being the creation of the statutes - can be changed. In this case, the legislature took the duty of "publication" (at least that publication which renders a law effective under 991.11) and gave it to the legislative reference bureau. This was a perfectly appropriate exercise of its constitutional authority under Art. IV., sec. 17.

109 comments:

George Mitchell said...

Yet another helpful and informative post.

We would benefit from your thoughts on Kloppenburg's refusal to call for the GWC ad to be taken down, an ad that arguably violates the NYTimes v. Sullivan test for libel against a public figure, i.e., malice aforethought and reckless disregard of the truth.

Steve Austin said...

Rick, we debated the whole situation over on BootsandSabers.com last night and came to the same conclusion.

http://www.bootsandsabers.com/index.php/weblog/permalink/it_is_law/

No matter how hard Peter Barca, Ozanne, Sumi and the young staff attorney at LRB (Scott Grosz) try to impart super powers on the Secretary of State as to his proclaimed ability to be the final arbiter of whether or not a law becomes effective, those powers are not at all enumerated in the statutes.

The Madison left needs to accept the law as valid today and move on to challenging this on the other issues they have.

LawGirl said...

I've written a concurring opinion at:

althouse.blogspot.com/2011/03/wisconsin-collective-bargaining-law-is.html

. . . which I did not recognize as a concurring opinion until the next commenter there pointed it out to me. Having been clued in to your post, I figured I'd cross-pollinate in return. Your analysis is, of course, far more comprehensive than mine. Thank you for that!

Anonymous said...

Brilliant! It never ceases to amaze me how inept the so-called legal scholars/practitioners on the left are. Where did they go to school?

Anonymous said...

There appears to be no mistake that proper procedures were adhered to allowing the law to be published. I suppose that the TRO could be construed to restrain the Secretary of States authorization to the LRB to publish the law. After-all, the procedural rule appears to fall under the laws of delegation.

Nevertheless, it appears that it will still fall in the hands of the court to determine if the open meeting law trumps the procedural laws being used. It would be much better if we could give Gov Walkers bill a chance and work out the bugs as we go along.

Very good post, thank you!

Kim Grimmer said...

My analysis that the law is now in effect, based on the Journal Sentinel case from 2009 is here:

http://madcityexit.blogspot.com/2011/03/whaaassuppp-did-zany-scott-fitzgerald.html.

Nice analysis.

illusory tenant said...

"[I]t's possible to argue ... "

That much is correct.

Steve Austin said...

Rick, read all the briefs in this matter filed by the Attorney General's office. It seems to me that Rule 93 is the open and shut case on the issue of open meetings notice based on the legislature being in special session. No violation.

Rule 93 specifically answers the question in both Sumi's opinion and the appellate opinion that seem to acknowledge the Open Meetings can be modified by other statutes. Both opinions say they have seen no exceptions and would be persuaded if one could be found.

I think Van Hollen could get summary judgment on this whole thing if he based his work on Rule 93.

But he doesn't. Why not?

illusory tenant said...

Incidentally I've been advised by the Legislative Referance Bureau that this blog post may not take effect nor be enforced until it's published by Charlie Sykes and Patrick McIlheran.

Bruce Boyden said...

Hi Rick. Do the Wisconsin rules have an equivalent to Fed.R.Civ.P. 65(d)(2): "The order binds only the following who receive actual notice of it by personal service or otherwise . . . (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B)"? Based on a quick search I couldn't find a provision addressing persons bound one way or the other.

Anonymous said...

Proceed with the statue as enacted? Proceed with layoffs? What can't we do both?

Anonymous said...

the legislature took the duty of "publication" (at least that publication which renders a law effective under 991.11) and gave it to the legislative reference bureau.

How did "the legislature" do this? Fitzgerald sent a letter to the LRB about publishing it as already prescribed by law under 35.095, but how is that an act of the legislature?

ed said...

Hmmm.

Does anybody really think that the Secretary of State of Wisconsin has veto power over both the Legislature and the Governor?

How does that table of organization look?

Rick Esenberg said...

Anon 8:26

The legislature - years ago - amended the statute to give publication responsibility to the LRB. That's the act of the legislature I am referring to.

xoff said...

George Mitchell:

As one non-lawyer to another, let me remind you that the last person to file a frivolous lawsuit over a Greater Wisconsin Committee commercial, JB Van Hollen, ended up dropping it and paying the costs. Link.

Anonymous said...

Every post I read about this cites the same statute you do, which contains the phrase "enacted by the legislature over the governor's partial veto." This bill was not enacted over the governor's partial veto. Is there another statute that deals with this circumstance?

Anonymous said...

Collective bargaining was eliminated in Indiana in 2005. Once given a choice, 95% of union employees chose not to pay union dues.

Anonymous said...

Professor, thanks for such a thoughtful analysis.

Is the following point worth thinking about? If I remember correctly, when the Secretary of State sent his letter to the LRB telling it that he was in effect rescinding the date of publication of Act 10, he wrote that he was acting pursuant to Judge Sumi's order. There is obvioulsy an argument that Judge Sumi's order was pointless and without legal force because it ordered the Secretary of State not do to something--publish Act 10--that state law did not in fact give him the authority or responsibility to do anyway. Is there thus an argument that the Secretary of State's instructions to the LRB in his rescinding letter were pointless and without legal force because these instructions were expressly given by the Secretary of State pursuant to Judge Sumi's order?

kaye said...

Fascinating dialogue. Please excuse this stupid question, but is the consensus of the author and readers of this blog that no court applying state law could enjoin the effectiveness of the law before its publication? And so any challenge would have had to be brought after publication/effectiveness/possible enforcement? Or is it that the wrong person was sued, which in many jurisdictions might be remediable by writ? Thank you for your enlightening comments.

Anonymous said...

That's the act of the legislature I am referring to.

What you're trying to argue is that 35.095(3)(b) and 991.11 effectively have no purpose, except to allow the Sec of State to set a date of publication between 1 and 10 working days of enactment. If the legislature wanted to write the Sec of State out of the act of publishing a law, why not just eliminate 35.095(3)(b), leaving 991.11 to solely reference the date after which the LRB opts to publish the law?

Anonymous said...

That's the act of the legislature I am referring to.

Not to mention it's interesting that not even the LRB thinks that is has the legislative authority you're saying it does.

Seth said...

That's the act of the legislature I am referring to.

And 991.11 specifically refers to 35.095(3)(b), which is the provision that the Sec of State set a date of publication. You're saying that "[i]n this case, the legislature took the duty of 'publication' (at least that publication which renders a law effective under 991.11) and gave it to the legislative reference bureau."

So, I'll ask again, how did the legislature, in this case, take 991.11 and redirect it to apply to 35.095(3)(a), which is the provision directing the LRB to publish laws within 10 days after enactment?

Anonymous said...

This blog is yet further proof that law school professors are about as worthless as a law school education is in this country these days. Did you count the number of tautological phrases in your post? 'clear' 'perfectly' clearly' etc. Nice legal argument...

bobbi said...

What can I say? I won't even attempt to argue against your case. You have neither the experience nor the qualifications to out smart our top lawyers, judges or scholars. But I will say this: if and when this law does pass don't pat yourself on the back. The republicans in this state will lose plenty if they win. The open meetings violation, Fitzgerald's latest shadowy action, and a host of other unethical moves have left a sour taste in the mouths of Wisconsinites. When you win through deceit, lies, and arrogance you never do really win, do you?

Mark said...

Anon, it's called "rhetoric" and good attorneys use it when arguing in public. I note that you did not supply an example of where the usage was incorrect.

Anonymous said...

One thing I have not seen is a discussion of the validity of enjoining the SoS from doing his constitutionally bound duties.

From the Wi Constitution:
Article VI, §2
Secretary of state; duties, compensation. Section 2. [As amended Nov. 1946] The secretary of state shall keep a fair record of the official acts of the legislature and executive department of the state, and shall, when required, lay the same and all matters relative thereto before either branch of the legislature. He shall perform such other duties as shall be assigned him by law. He shall receive as a compensation for his services yearly such sum as shall be provided by law, and shall keep his office at the seat of government. [1943 J.R. 60, 1945 J.R. 73, vote Nov. 1946]

To me it would appear that following judge Sumi's TRO would require the SoS to violate his constitutional duty. Is this within her judicial authority?

Ed Fallone said...

Rick:

The Wisconsin Constitution requires that legislation be published before it becomes law. The legislature, in Section 35.095, gives this responsibility to the Secretary of State. There is no evidence that the text of Section 991.11 withdraws this responsibility or otherwise alters it (that section deals with the LRB's job to print and make available copies of the laws). There is no evidence that it was the intent of the legislature when it passed Section 991.11 to give it the meaning that you ascribe to the words. Most tellingly, there is no evidence that anyone in state goverment had ever interpreted Section 991.11 in the way that you suggest it should be interpreted until it became convenient for short term litigation purposes. Attempting to bypass the constitution's reuirement of offical publication is an unconstitutional action. The state legislature can, if it wants, amend the law in order to take responsibility for publication away from the Secretary of State. It hasn't done so, and no one (not even advocates who have argued for years that the Office of SOS should be abolished) claimed to believe that this responsibility had already been stripped from La Follette's office until this past Friday.

Seth said...

There is no evidence that the text of Section 991.11 withdraws this responsibility or otherwise alters it (that section deals with the LRB's job to print and make available copies of the laws). There is no evidence that it was the intent of the legislature when it passed Section 991.11 to give it the meaning that you ascribe to the words. Most tellingly, there is no evidence that anyone in state goverment had ever interpreted Section 991.11 in the way that you suggest it should be interpreted until it became convenient for short term litigation purposes.

Not only does 991.11 not have the meaning Rick ascribes, it doesn't have the actual words Rick seems to assert it does.

991.11 reads, in full: "Every act and every portion of an act enacted by the legislature over the governor’s partial veto which 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)."

35.095 (3) (b) reads, in full: "The secretary of state shall designate a date of publication for each act and every portion of an act which is enacted by the leg- islature over the governor’s partial veto. The date of publication may not be more than 10 working days after the date of enactment."

The act of publishing the bill within 10 days by the LRB is 35.095 (3) (a). If 35.095 (3) (b) has not taken place, the effect conferred in 991.11 cannot either.

So, unless one is going to argue that the authority to establish a date given to the Sec of State in 35.095 (3) (b) does not include the ability to rescind and re-set a stated publication date in advance of when that date occurs, there is no way to argue that the law has taken effect by virtue of the LRB publication.

StoneColdBlkConservative said...

I'm thinking Judge Sumi is complaining to some Dem back-office smoke-master that she's been made to look like Charlie Sheen's twin sister in this whole thing. And, of course, her law school is probably also ringing their hands over the drop in admissions from her little dance.

Jay said...

According to State Statutes an unofficial publication of an Act is not enough to raise it to Law.

Wisconsin State Statutes specifically allow that an Act will only become Law
the day after the "Secretary of State" officially "designates" a "date of publication".

The Secretary of State officially rescinded the March 25th date, in light of a Court Order.
Thus publication by the Legislative Reference Bureau (LRB), or anyone else, is
irrelevant towards officially raising the Act to Law.

Wis State Statute 991.11
"acts....shall take effect on the day after its date of publication..."

Wis State Statute 35.095(1)(b)(b)
" "Date of publication" means the date designated by the secretary of state..."

The states Legislative Reference Bureau (LRB) went ahead and published the Act online on March 25th.
The LRB cited a Statutory Law requiring a 10 day limit for publication as
one of their two reasons for their publication of the Act
(a request for publication by a Congressman Fitzgerald being the other reason).

However a Court Order, which has Restrained the Official Publication and Date Designation duties
of the Secretary of State, would also inherently and legally postpone temporarily that 10 day requirement.

Without Official Secretary of State designation any publication will be unofficial and
not raise the Act to Law. LRB has acknowledged this.

===================================

milwjay

Rick Esenberg said...

Ed

The law does not give the SOS the responsibility of publishing or make the LRB's duty to publish contingent on anything he does. What it does do is require him to specify the publication date and makes that date the effective date of the enactment. Thus the possibility of arguing that the act is effective on the chosen date rather than the LRB's publication date.


The problem with that is that the statutes don't seem to contemplate that the two are different or that the publication date - once chosen - can be rescinded. (In fact, Judge Sumi never ordered that it be rescinded.)

All of this is I think illustrative of what happens when courts act rashly. She ought not to have enjoined publication in the first place without explaining why she thought she had the authority to do so and why it was even necessary. To some extent, I think this is a side show because the issue of the law's validity will eventually get presented properly.

Rick Esenberg said...

Bruce

I don't think there is a state version although I bet there's some law about injunctions applying to those who are, in some sense, in privity with the parties. But I haven't looked at it.

Rick Esenberg said...

Milwjay

As I mentioned in the post and reiterated to Ed, the question becomes whether the recission is effective for the reasons that I raise.

Seth said...

According to Sumi's order: "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 concern here is over an act of publication that leads to implementation, not simply publication of any kind. Setting the date of publication is an act of publication. The Sec of State set a date, but then was restrained and enjoined from maintaining that date via Sumi's TRO.

What's more, from the Wisconsin Legislative Council: "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."

So, it's clear the LRB similarly considers the Sec of State's role in setting a date of publication constitutes an act of publication, separate, as you point out, from the LRB's act of publication. Sumi didn't need to restrain or enjoin the action of the LRB since it's role doesn't lead to implementation, as stated in 991.11.

In the interest of full disclosure, I'm a non-represented state employee who, for obvious reasons related to my compensation, doesn't like the non-fiscal "budget repair" legislation. But, due to retroactive contribution provisions in Section 9111 of Act 10, knowing that the legislation is inevitable at this point (whether through what's currently passed or another version that's later passed), I'd actually prefer the legislation to take effect sooner rather than later.

I was disappointed by the TRO, and the court challenge that led to it, since I agree with you that it relies on a slip-shod reading away of the fact that Senate and Assembly rules related to special session notice provisions supersede the requirements in the open meetings legislation. I think the non-partisan Senate Chief Clerk, whose job it is to deal with these issues on a daily basis, is correct in that the Senate and Assembly rules apply.

The same is true here -- a slip-shod reading of the TRO and how it relates to the Sec of State's role in the publication of acts is being employed, and it's leading to all sorts of aggravation and confusion for the people who the law impacts (I'm referring to the "this is now law" pronouncements by Fitzgerald and Huebsch, not this blog).

Let's just let the Sumi hearing, and the appeal of the TRO to the Supreme Court play out. I'm sure, and truly hope, it will be done this week, and the law will be implemented by next week, at the latest. There's no need for Fitzgerald and Huebsch to thump their chests and, in turn, muddy the waters even more.

Anonymous said...

"I was disappointed by the TRO, and the court challenge that led to it, since I agree with you that it relies on a slip-shod reading away of the fact that Senate and Assembly rules related to special session notice provisions supersede the requirements in the open meetings legislation."

That is EXACTLY why, for this novice, why a court of law ought to decide, not legislators who in a position of power to act for their own benefit, whether their procedural rules apply in certain cases and even trump state laws.
Yes, procedural rules are necessary for state laws to be implemented, but it seems to me that the procedural rules are being used as a loophole to circumvent a state law, and that the claims that the Secretary of State must, no matter what, publish the law even if the law is in question appear to be self-serving.

Even more telling is that the common everyday John and Jill would, in all likelihood, be frustrated by this discussion. A ton of legalese, with lawyers trying to outdo one another. No wonder why the general public is in the dark regarding how the judicial system works in this country!

Anonymous said...

Steve Austin--The Madison left needs to accept the law as valid today and move on to challenging this on the other issues they have.

Well, then, it's all settled. Walker is right, everyone else is wrong. Nothing to see here, people, nothing to see. [sarcasm]


anony 10:15 a.m.--Brilliant! It never ceases to amaze me how inept the so-called legal scholars/practitioners on the left are. Where did they go to school?

Here's a BRILLIANT counter...

illusorytenant.blogspot.com/2011/03/wisconsin-statutes-couple-three-of-them.html

Ed Fallone said...

I have posted a more detailed explanation of my reasoning here:
http://law.marquette.edu/facultyblog/2011/03/28/publish-or-perish-the-budget-bill-is-not-law/

LawGirl said...

In an attempt to untangle the knotted web woven by some who are trying to read the clear statutes in a deceitful way that advances their agenda, here's another way to state some of what Rick's excellent blog post said:

Wis. Stats. 991.11provides: "Every act and every portion of an act enacted by the legislature over the governor’s partial veto which 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)."

(As an aside - Anonymous 11:20 apparently thinks this applies only to acts that withstand a partial veto - Anon. 11:20 is wrong. By its plain language, it obviously applies to whole acts AND to those parts of acts that withstand a veto. I'll give you the benefit of the doubt and assume you're not a lawyer, because if you are a lawyer, you should be ashamed.)

So, we have this at 991.11: "every act ... shall take effect on the day after its date of publication as designated under sec. 35.095 (3)(b)."

35.095(3)(b) provides: "The secretary of state shall designate a date of publication for each act . . . . The date of publication may not be more than 10 working days after the date of enactment."

So, Sec State needs to "designate" a publication date - it says absolutly nothing about him actually publishing it (anymore - see historical references by other commenters and Rick further up).

After the bill at issue was passed by both houses and signed by the Governor, Sec State LaFollette designated March 25 as the publication date. This fulfilled his duty under the plain language of § 35.095(3)(b).

It appears that he later attempted to revoke this, but I could find no authority for the Secretary to withdraw his designation of a publication date or to instruct the Legislative Reference Bureau to violate § 35.095(3)(a), which requires that the Bureau publish (not just "designate" for publishing, which is the Sec State's job) every act "within 10 working days after its date of enactment."

The Secretary of State has no authority to actually publish the law (any longer), but has clear authority to designate a publication date, which he did.

All of that on top of the fact that the legislature in no way violated the open meetings laws (as if anyone who read the Senate Rules and the open meetings statute ever truly believed they did, but that's for another post) . . . means there is no basis to believe that this is not now law.

jimspice said...

From the various opinions argued here, it's seems the law, or more accurately, mix of laws, is not clear. Could we not all agree that the next act of the legislature should be to spell it out clearly?

Mendoza said...

Professor, thanks for such a thoughtful analysis. Is the following point worth thinking about? If I remember correctly, when the Secretary of State sent his letter to the LRB telling it that he was in effect rescinding the date of publication of Act 10, he wrote that he was acting pursuant to Judge Sumi's order. There is obvioulsy an argument that Judge Sumi's order was pointless and without legal force because it ordered the Secretary of State not do to something--publish Act 10--that state law did not in fact give him the authority or responsibility to do anyway. Is there thus an argument that the Secretary of State's instructions to the LRB in his rescinding letter were pointless and without legal force because these instructions were expressly given by the Secretary of State pursuant to Judge Sumi's order?

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According to State Statutes an unofficial publication of an Act is not enough to raise it to Law. Wisconsin State Statutes specifically allow that an Act will only become Law the day after the "Secretary of State" officially "designates" a "date of publication". The Secretary of State officially rescinded the March 25th date, in light of a Court Order. Thus publication by the Legislative Reference Bureau (LRB), or anyone else, is irrelevant towards officially raising the Act to Law. Wis State Statute 991.11 "acts....shall take effect on the day after its date of publication..." Wis State Statute 35.095(1)(b)(b) " "Date of publication" means the date designated by the secretary of state..." The states Legislative Reference Bureau (LRB) went ahead and published the Act online on March 25th. The LRB cited a Statutory Law requiring a 10 day limit for publication as one of their two reasons for their publication of the Act (a request for publication by a Congressman Fitzgerald being the other reason). However a Court Order, which has Restrained the Official Publication and Date Designation duties of the Secretary of State, would also inherently and legally postpone temporarily that 10 day requirement. Without Official Secretary of State designation any publication will be unofficial and not raise the Act to Law. LRB has acknowledged this. =================================== milwjay

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