Legerdemain on BRB - Publication a Prosser Plus?

Earlier today I described why I think the Budget Repair Bill ("BRB") with its restrictions on collective bargaining is now the law of Wisconsin.  It seems to me that it was published in accordance with the statutes, and the Supreme Court's decision in the Milwaukee Journal Sentinel v. DOA case from 2009 supports the idea that the important test about effective publication is not all the technical niceties, but whether the word about the new law was effectively communicated to the citizenry.  Act 10 probably set a Guiness World Record for percentage of state citizens informed about the adoption and general provisions of a state statute.  The percentage of impacted citizens well informed about this legislative act was probably only overshadowed by the percentage of impacted citizens well-informed about the legislative act of Congress on December 8, 1941.

If 4 out of 7 Justices of the Supreme Court currently agree that the law is now effectively published, I know of no basis for the Supreme Court to do anything other than turn down the Court of Appeals' effort to certify the propriety of Judge Sumi's March 18 TRO to the Supreme Court.  The TRO is now moot (treated like it never happened), and the hearing in front of Judge Sumi on Tuesday is to take up whether Act 10 should be invalidated as having been passed in violation of the Open Meetings Law.  That issue is not moot, but requires fact-finding, which the appellate courts only do in special cases.  This isn't one of those cases.  Judge Sumi's hearing can now go forward.  I have already talked about one reason I think the Open Meetings Law can't be used to invalidate the passage of the BRB, as much as I think the BRB it is ham-handed and ultimately a very harmful law for the progress of the state. 

It is now virtually assured that the publication of Act 10 has taken the legal wrangling over the law off the Supreme Court's plate until well after the Supreme Court election on April 5, 2011.  I can't say whether that will serve to help or hinder Judge Prosser come election day, because I would be predicting how he might rule, and what kind of reactions that would engender from prospective voters.  But I have to think he is at least relieved by the turn of events in terms of the anti-union legislation not being a focus over the last few days of the campaign.