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.