Saturday, March 26, 2011

WHAAASSUUP? Did Zany Scott Fitzgerald get the job done?

Are the citizens of Wisconsin now living under the new union-busting measure of Act 10 or not?  The answer is probably "You betcha!" 

Here is what Article IV, Section 17 (2), of the Wisconsin Constitution says about publication as a prerequisite for an Act to be transformed into effective law:
(2) No law shall be enacted except by bill. No law shall be in force until published.  (Emphasis supplied.)
What the Legislative Reference Bureau did late yesterday in putting Act 10, the union-busting measure, out for on-line access to the world (and universe) as a PDF formated document, may have, in fact, published the act and made it the law of the State.  Wis. Stats., sec.35.095(3)(a) seems to place a duty on the Legislative Reference Bureau, independent of any duty on the Secretary of State, to get the law published (at least by the LRB) no later than 10 days after its enactment by the Legislature and signing by the Governor:
Wis. Stats. sec. 35.095(3)(a) reads:
(a) 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.  (Emphasis supplied.)
Does the Secretary of State have to be the constitutional officer that causes the Milwaukee Journal Sentinel, (currently under contract with the state as the "offical state newspaper" for publication of notices of state govenrment) to publish the law in order for it to go into effect? 

Based on a 2009 Wisconsin Supreme Court case, seemingly not.  In Milwaukee Journal Sentinel v. Wisconsin Department of Adminstration, 319 Wis.2d 439, 768 N.W.2d 700, the issue was whether the Wisconsin legislature's ratification of a collective bargaining agreement with the Wisconsin State Employees Union (WSEU) by an bill passed by the legislature served to effectively amend the state's Open Records Law.  The Journal Sentinel and others were looking, by open records requests, to secure some records on poor drivers employed by the state.  The DOA refused the requests citing a provision of the collective bargaining agreement and arguing it had the force of providing an exception to the Open Records Law. 

In resolving the question, the Court considered two main issues:  (1) Was the collective bargaining agreement's provision making the records confidential actually in the text of a bill passed by the legislature?  (2) had the collective bargaining agreement provisions been properly "published" under the constitutional provision cited above. The WSEU's lawyer creatively argued that because the CBA's provisions had been placed into the records of legislative hearings, the constitutional requirement for publication had been met.  It would have been easy for the court to dismiss this argument by simply saying:  "Hey, publication of a law requires the Secretary of State  to physically cause the law to be placed in the Official State Newspaper." Instead, the court seemed to say that it would be prepared to find several guises of publication acceptable to meet the constitutional mandate of publication:  Justice Roggensack, writing for the court said:
Nearly, 150 years ago, we noted the purpose of the constitutional publication requirement is:
the protection of the people, by preventing their rights and interests from being affected by laws which they had no means of knowing. But all are bound by, and are bound to take notice of public statutes.... [If the publication requirement is not enforced,] it is manifest that the object of this clause of the constitution is in a great measure defeated. And the people are liable to act blindly with reference to their most important interests, and to have their rights sacrificed by the operation of laws which they are bound to know, but have no means of knowing. Such a result is in conflict with the first duty which a state owes to its people. Clark v. City of Janesville, 10 Wis. 119 (*136), 141-42 (*181) (1859).
General notice to the public of laws by which all will be bound is the policy that drives publication.  Accordingly, if some action is argued to be sufficient to constitute publication. that action must be evaluated in light of the purpose publication seeks to achieve, i.e., was the public provided with sufficient notice of the law that is being enacted or amended. (Emphasis supplied.)
We have addressed methods by which the constitutional publication requirement may be satisfied:
While it is true that the employment of the art of printing is the best means of publication, still publication cannot be confined to the limited signification of mere printing, but comprehends the exercise of additional labor and skill. This provision implies a discretion to be exercised in the method of publication; for instance,-that the general laws which cannot be in force until published, shall be published in the public journals, that being the most speedy method; or in pamphlet form, that being more convenient for many purposes; or even by proclamation at the door of the court house in each county.... All these would be different forms of publication, and all would answer the constitutional requirement....Sholes v. State, 2 Pin. 499, 511-12 (Wis.1850) (emphasis in original). (Underlined emphasis supplied.)
It is apparent from this discussion that the legislative branch, which has been vested with the legislative power under the Wisconsin Constitution, has discretion in choosing how to comply with the publication requirement. However, it is also apparent that, despite this discretion, the legislature may not ignore the constitutional publication requirement altogether. While we are conscious of the substantial deference we owe to the other independent branches of government in the exercise of their constitutional responsibilities, we are also conscious of our own responsibility to determine whether the provisions of the Wisconsin Constitution have been followed.
This language from Justice Roggensack went much farther than it needed to in order to dispose of the Union's argument on the publication issue, but if this line of reasoning is applied to the current dispute as to the publication of the BRB, then it would seem to support upholding the BRB as properly published.

Could the LRB be seen as restrained by Judge Sumi's TRO?  Neither the Legislative Reference Bureau, nor any of its staff, had been sued by DA Ozanne, and Judge Sumi's temporary restraining order (TRO) was, at least on its face,  specifically directed at restraining the actions of Douglas La Follette only:
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.
Everyone at the LRB had to have known about Judge Sumi's TRO.  Did they have some duty to read it as impacting every state agency or employee that might be called on to take any kind of action to facilitate publication?  If a secretary in LRB was asked to type the effective date of publication at the top of the Act yesterday before it was released, should the secretary have been concerned with the TRO?  I think that would go too far under these circumstances. A TRO defines duties in a negative way:  "don't do this, don't do that."  That is why it's called a restraining order. The LRB had to balance the TRO, and whether it could even be read as impacting on their actions, against a statute that unquestionably called for them to affirmatively do something.  Had I been head of LRB, I would have come down on the side of following the statutory requirement that the Act be published in 10 days. 

Peter Barca, who, like Horatius at the Bridge, tried mightily to stand up to Scott Fitzgerald in the infamous conference committee meeting, received an email  from a Legislative Council  staff lawyer, Scott Grosz, with Grosz' opinion that the Act was not effective until the Secretary of State acted to publish it.  Grosz does not address the Supreme Court's above-discussed decision in Milwaukee Journal Sentinel in his email, however.

If the Legislative Reference Bureau is treating the Act as in force now, the official statutes published on its website don't reflect it as of this morning.  Act 10 deleted some provisions of existing statutes, and modified some parts of existing statutes, and added entirely new statutes.  None of the changes from Act 10 appear today in the official statutes of the state that are available on-line.


  1. Hunh? But you omitted Wis. Stats. sec. 35.095(3)(b)! Participation of the S of S is not optional.

  2. 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.


    Congressman Fitzgerald, who requested LRB to publish the Act hoping to bypass the Sec. of State requirement as well as
    bypass the Court Order, is a named defendant in the case which requested the Court Order. Fitzgerald has stated that
    he thinks that now the Act is Law. Fitzgerald is mistaken