It Is Law
A controversial bill limiting collective bargaining for public workers has been officially published despite a temporary restraining order barring its publication.
The legislation was published Friday with a footnote that notes the restraining order, but says the law “requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment.”
The publication of the law means that it will take effect Saturday.
The restraining order was issued against Secretary of State Doug La Follette, not the reference bureau. La Follette is a Democrat and the Legislature is run by Republicans, but the reference bureau is a nonpartisan agency widely respected by both sides.
It is being challenged already,
on the basis that some state employees are exempt and that it was a fiscal bill
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 1709 hrs
Interesting. Now for the deluge of legal challenges. We all knew it would end up at the Supreme Court.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 1818 hrs
This is a fascinating development.
At this point the TRO to prevent publishing the bill is a moot point and the Wisconsin Supreme Court can dismiss most of the Madison DA’s suit.
But there is still an open question as to whether an open meetings violation (if found, and Judge Sumi will no doubt find it given her political bent) can invalidate the substance of a bill (now law). I just wonder if that line of inquiry can survive here or will be dismissed.
Then you’ve got the new suit by the Madison public employees referenced in post #1. I’m wondering if they can get a TRO issued on enforcement of the new law over the weekend from either Sumi or some other lefty judge. I’m guessing the Madison union folks do not have a judge assigned and likely didn’t request a TRO in their filing, but we’ll see the docs later tonight.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 1822 hrs
Delicious!!!! Ooooops, DA forgot to name a proper party i.e. the LRB….dang it! Will be fun to watch…. pass the popcorn, please.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 1845 hrs
:popcorn:
Posted by Owen on March 25, 2011 at 1850 hrs
Beautiful!
Section 35.095 (3) (a), Wis. Stats:
“(3) PUBLICATION. (a) The legislative reference bureau shall
publish every act ... within 10 working days after its date of enactment.”Looks like Ozanne neglected to sue the Leg Reference Bureau.
Ozanne will be compared to the Dem official who screwed up with the Butterfly Ballot in Palm Beach County FLA in the 2000 election.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 1857 hrs
As you read the MJS article, there are a couple comments that somehow the Secretary of State must publish to law in the newspaper of record. And that the State Journal is not running the publication.
I think the link below has the proper statute:
https://docs.legis.wisconsin.gov/statutes/statutes/35/I/095/2/b
On a clear reading of that statute, it doesn’t appear that the Secretary of State must publish the law for it to be effective. Rather the Secretary of State selects the date for publication and it can’t be more than ten days after the law was passed and signed. I see nothing in there that says the SOS must do the publishing. Looks like he only picks the date. And he doesn’t have discretion not to publish.
Is there something out there to the contrary? As noted above, it appears Ozanne assumed the SOS was the entity that published and got the injunction against him. That may have been completely incorrect unless there is some other statute provisions at spell out power the SOS has in this process.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 2013 hrs
Wis. Stat. 985.04? Official state newspaper. The joint committee on legislative organization shall recommend to the legislature to designate some newspaper published in Wisconsin to be the official state newspaper, which shall publish all legal notices required to be published therein. Any such publication from any of the state agencies shall be deemed official. . . .
That is, a bill is not a law until (a day) after meeting the requirement to be published, and the publication is required to be in the officially designated state newspaper. (As of now, the Wisconsin State Journal.)
I really can’t figure out why Fitzgerald, Walker, et al., with all that needs to be done in this state, are pushing this to the precipice—or perhaps past the precipice now to inviting constitutional crisis by pre-empting the powers of the Secretary of State and the judiciary. How is this good governance toward stability for the state? Perhaps more will become clear in some grand strategy, just as we now know why Fitzgerald refused to consider re-voting on the bill.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 2118 hrs
Gee——I am reading the stat you highlighted.
https://docs.legis.wisconsin.gov/statutes/statutes/985/04
It doesn’t say in that statute anything about the law not being valid unless published. Nor is there anything that says the SOS must be the one to publish it. That provision you cite only says that a legislative joint committee will designate the official newspaper and that if the legislature designates a paper, that will be sufficient for public notice to be imparted. That statute relates more to providing power to a specific newspaper to be the authoritative point of notice.
I haven’t seen anyone cite anything that definitively states the Sec of State must be the one to publish the law. The only statute I’ve seen that references the SOS is the one above. Where the SOS picks the date of publication, not more than 10 days. (Again, there may be some statute empowering the SOS but no one has cited it yet)
The fascinating thing about all of this is that we’ve seen modern society completely obliterate all these arcane provisions that were suited for a different technological time.
Quorum of 20 Senators for a fiscal bill? To prevent a simple majority from passing a spending bill while other legislators couldn’t get to the Capitol in time on horseback. Yet we know all the fleebaggers were in the Capitol when the bill was coming up for vote. Then they fled.
Open Meetings law? To prevent laws from being passed in secrecy and without public knowledge. Yet much of this bill was passed with live TV and radio coverage for weeks on end.
Publishing of a Bill in an official newspaper? The internet makes that provision completely pointless and redundant.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 2143 hrs
Gee: the law you cite does not say “a bill is not a law until (a day) after meeting the requirement to be published” I think that is your conclusion, yes?
Wis. Stat. 985.04 merely describes the procedure for designating the “official” state newspaper “which shall publish all legal notices required to be published therein.”
The issue is: is there a statute or case law that clearly indicates a law is not in effect until it appears as a legal notice published in the official newspaper? That might be the case, but
Wis. Stat. 985.04 doesn’t say it…Also: What happens if there is a strike or other problem at the “official state newspaper”? Can the official newspaper, by not functioning, effectively shut down government?
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 2149 hrs
I guess that means we really can get rid of the Secretary of State for Wisconsin.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 2154 hrs
Also, read the footnote at the link provided by Steve Austin:
“Methods other than newspaper publication, under s. 985.04, may be utilized to give public notice of our general laws. 63 Atty. Gen. 346.”
The Leg Ref Bureau put the law on-line. It’s out there, baby! The public knows. There has been much wider dissemination than the circulation of ever could be of “official state newspaper.”
Thank you, Al Gore, for the Internet.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 2156 hrs
WTMJ’s Shelley Walcott just interviewed a liberal law prof (Ed Fallone from MU) who was screeching that this was not valid. Of course WTMJ presented this as fact without any questioning. WTMJ—“A law professor says this isn’t legal!”. Yeah and Johnny Cochran saying the glove doesn’t fit so you must acquit meant OJ was actually innocent.
I am waiting for some statutes or case law empowering the SOS as the final arbiter of whether a law becomes a law. I’m not sure it is out there, but the law clerks at the Daily Kos have to be working away tonight looking for it.
It might be there. Or it might not. I’d guess though that the GOP and AG have looked for it this week.
Posted by .(JavaScript must be enabled to view this email address) on March 25, 2011 at 2217 hrs
Read it and weep, boys and girls. :popcorn:
Posted by capper on March 26, 2011 at 0319 hrs
You kids are trying so very very hard to convince yourselves that it’s law. You’re bound to be disappointed when real lawyers and real judges weigh in.
Fitzgerald’s declaration of absolute certainty that they’d done everything perfectly is tied around his neck like the albatross. If he backs off and just repasses the Disappearing Democracy Bill he looks weak and falliable and there is nothing this crop of GOPers likes more than a little blood in the water.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 0606 hrs
True enough Grumps! Let’s see how these teabaggers would scream if all these shennanigans with the law were being done to negate some action they favored rather than to consummate it. Politics and sausage…don’t think I’ll be touring Oscar Mayer anytime soon.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 0702 hrs
16.You kids are trying so very very hard to convince yourselves that it’s law
15.Read it and weep, boys and girls
With all due respect, which side is acting like children here?
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 0706 hrs
I read the link Capper posted to the memo from LRB to Peter Barca.
It is a circular argument that doesn’t address any of the points we raised above. The memo is citing the same statutes as above and reading into it what the statutes don’t specifically say.
Again, there is nothing in either of those statutes cited that say the Wisconsin SOS must be the entity to publish a bill before it would become law. Nothing. The plain text of the statute only says the SOS must pick a date when the law will be published and it can’t be more than ten days. In the absence of the action of SOS picking a date, the law then becomes effective.
Now, if it has been “custom” for the SOS to pick a date and publish (and it has) it would be logical to then “think” the SOS was the entity that “blessed” the law with publication, thus the SOS makes the law “effective”. But that is a common practice and is not at all specified in any of these statutes, no matter how hard these guys in Madison try to claim it is.
This is a case where the statutes on their face do not support all the power that some in Madison are ascribing to the SOS. But then again, Dems typically always try to ascribe power to the government or judiciary when it isn’t specifically there.
The finding that the SOS doesn’t have control over implementation of a law is also somewhat consistent with the issue raised by the Appeals court in their opinion the other day. They asked the Wisconsin Supreme Court to answer the question over whether you can prevent a law from taking effect before challenging it. I’m guessing in most jurisdictions you simply can’t bring these challenges until the law is in effect. Which again makes the publication flap by the SOS completely irrelevant.
I think the legal concurrence is that Capper’s hero Peter Barca will be able to bring his open records suit. But not until AFTER the law is published and made effective. And a judge can still lay down an injunction to stay enforcement after the law is effective.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 0811 hrs
MU Law prof Rick Esenberg runs through the same drill we did above in a very nice essay:
http://sharkandshepherd.blogspot.com/2011/03/primer-on-publication-of-collective.html
Too bad Carole Meekins and Shelley Walcott at WTMJ didn’t interview Esenberg.
Ozanne and Sumi completely screwed this up and no amount of circular arguments can change that. Those two should simply move on. They’ve got plenty of other areas they can bring challenges.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 0820 hrs
Honestly, This entire thing is the epitome of what happens when people try force things when they don’t need to. The Senate had all of the votes they needed. They really just needed to wait the 24 hours and they would have gotten all that they wanted and none of the legal crap. This was Fitzgerald just giving the dems the finger or an “up Yours” to show them who is in charge. Everyone involved is being childish.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 0939 hrs
They really just needed to wait the 24 hours and they would have gotten all that they wanted and none of the legal crap.
Do you honestly believe that? At no point have the Dems/unions demonstrated any regard for the process, yet you think they suddenly would have done so?
Posted by Jed on March 26, 2011 at 0958 hrs
yes, they would have been well within the law had they waited 24 hours. The legal process is pretty clear for passing bills and creating law. would there have been challenges? yes, but they would have been much more tenuous.
This has from the beginning been about getting even with dems and unions for things done in the past. sadly in the future when the pendulum swings the other way the dems will do the same thing. It is BS for these people to play politics with other peoples lives.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1007 hrs
The issue with waiting 24 hours was twofold.
a) They didn’t need to do under Rule 93, because they were in special session. This had been done many times in the past with no objection. Van Hollen isn’t playing his strongest card in his briefs, which is Rule 93. I think he could get summary judgment on that issue alone.
b) As Fitzgerald said, the second they sent out the email on the vote, he noticed that through social media, the mob was activated. Said he could see them coming down Bascom Hill down State Street.
I don’t think any of his members felt safe at that point in history. There were enough death threats against the State Senate that they wanted to vote and then be able to leave. Not have to come back 24 hours later and try to enter the building.
Ask any of those 18 who voted yes if they would have a revote. I’d guess all 18 would do it immediately if you could guarantee their safety.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1202 hrs
My posting of the provision of law re publication in the officially designated newspaper was to that specific question. As to other questions raised above re the role of the SoS, etc., all of those also are answered in other provisions of state statutes—and all are there for others to read as well, if they truly are adherents to law and order in Wisconsin. Sorry that I have no more time today to do all of that digging into statutes again for you; I found those other provisions last night and found good reading for myself, so I hope that you do so, too. Btw, I also recommend finding and reading the filings of all sides on the court case to be able to better follow the debates to come this week.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1203 hrs
I meant to add that I agree with the comment that newspaper publication may be an arcane holdover in this day and age—and if so, that provision ought be removed by our lawmakers but not ignored by them, as it is the current law, and they were elected to uphold the law, too, unless and until they draft, debate, and change the law under the law.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1206 hrs
Why all the worry about publication? If anything, now that it has been published and is “law”, any ambiguity as to whether or not the various legal actions have standing is resolved. IMO it’s a waste of time and resources for the left to fight on this front.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1233 hrs
Steve Austin - Why do you think Hollen has not referenced rule 93?
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1245 hrs
Let’s review: Leg Ref Bureau (LRB) yesterday complied with its independent requirement under the law (because, as we all know now, Ozanne screwed up).
And, admittedly, some at the LRB seem to think La Follette still needs to do ‘something’ for the law really, truly, actually, to be in effect. Fine. Ambiguity.
So ... what do union leaders have to say about LRB compliance with the law?
Mary Bell (WEAC): “These tactics are not in the Wisconsin tradition of open government and do not represent the will of the people.”
Wow. Publishing a law online for millions to see is “not in the Wisconsin tradition of open government.”
Phil Neuenfeldt (Wisconsin AFL-CIO): an “illegal backdoor maneuver.”
Interesting. Following the law’s requirements is “illegal.”
The quotes are here:
http://abcnews.go.com/US/wireStory?id=13224449&page=3
Hilarious, Orwellian stuff. The left’s ‘By Any Means Necessary’ strategy in operation.
Can you hear them now? Do you understand what is at stake?
Wisconsin taxpayers, pay attention.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1325 hrs
I do not know why Van Hollen has not referenced Rule 93. He briefly talks about it but last week was fighting the case more on the fronts of whether or not you could enjoin a bill from becoming a law and the issue of the separation of powers. But Rule 93 is what the Fitzgerald brothers relied upon here and has been used by both parties in the past. It may be as simple as incompetent lawyering by Van Hollen, just as we’ve seen incompetent lawyering here by Ozanne.
As to Gee’s post above, a number of us have read these statutes the past 24 hours. If there is something in there, he’ll have to cite it rather than leaving one to wish it were in the plain language of the law.
A Madison attorney who I have not read before and seems middle of the road thinks this is law.
http://madcityexit.blogspot.com/2011/03/whaaassuppp-did-zany-scott-fitzgerald.html
The interesting part of his analysis is that in the Wisconsin Supreme Court opinion from 2009 that the appeals court referenced, Justice Roggensack, writing for the majority, seems to say that publication in an official newspaper isn’t needed for a law to be effective, as long as some type of effective notification is provided.
If I were Judge Sumi, I’d dismiss Ozanne’s case on Monday as moot, declare the law published, but then allow Ozanne to refile his case regarding whether or not the Open Meetings law was violated.
Of all these cases, I think most are junk that should face summary judgment with the one exception being the equal protection case that the Madison workers filed yesterday, claiming the police and fire employees got special treatment. I don’t know whether equal protection applies in that instance, but it is a worthwhile inquiry.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1422 hrs
Van Hollen isn’t playing his strongest card in his briefs, which is Rule 93.
Maybe that’s because Rule 93 does NOT specifically cover Joint Committee meetings. Covers Ass’y, has a mirror for Senate, but not “joint.”
BTW, I think that the implication is clear: Joint is covered if both the others are covered. But you’d have to ask Cullen, who wrote it, eh?
Posted by dad29 on March 26, 2011 at 1624 hrs
Steve Austin, thanks for a link to an interesting addition to discussion—but I’m not too confident of the blogger’s research, as he doesn’t even cite the correct officially designated state newspaper. (It’s not the Journal Sentinel.) I do think that the 2009 JS decision may enter into court discussion. However, the construction of the first sentence quoted of Sumi’s order could be significant if seen as standing alone. That is, the implementation in the next sentence specific to the SoS is separate.
All of this will lead us to more perusing and parsing of legal rulings, filings, and more, which I weirdly find fascinating, too. And if all of this helps to educate even some of the populace to the importance of law, as well as the importance of precision in writing, all the better! The comments in so many blogs are so uninformed and uneducated that I can only hope that they’re from the legendary paid operatives in pajamas, waiting for their moms to call them to supper.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1808 hrs
Gee: Re “the construction of the first sentence quoted of Sumi’s order could be significant if seen as standing alone”:
(The first sentence quoted: “I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.”)
A judge’s order can only apply to parties properly before the court. Sumi’s order applied to actions by La Follette, as he was the relevant party named.
Leg Ref Bureau had no option but to follow its publication obligations under the law. LRB would have no basis to consider itself bound by a judge’s order not addressed to LRB, nor would it have any authority to do anything other than what it did.
The litigation game is a precise one & Ozanne’s error in not naming LRB cannot now be undone.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 1840 hrs
One of the commentators on Althouse noted that the statute in question back in 1981 used to only refer to the SOS publishing a bill. Over the years, through different amendments, the SOS has had his name removed and replaced by the LRB as the publisher of a bill. That would show intent to replace the SOS.
Of course Doug LaFollette tonight claims he is the one who decides when laws are effective, even though he appears to have no statutory support for it.
Posted by .(JavaScript must be enabled to view this email address) on March 26, 2011 at 2234 hrs
Howard Bannister, yes, La Follette was named by Sumi in terms of implementation per statutes (those that still do specify the Secretary of State’s role)—but the Fitzgeralds and others also were named as defendants. So the enjoining sentence of Sumi’s order easily could be construed as bearing upon all defendants. We will see, in another interesting week ahead, whether Fitzgerald was correct in getting his idea to go ahead with the LRB from a story in the State Journal rather than from the state consttution! I, for one, am not reassured by that, by the leader of our legislature taking direction from reporters. After all, all they needed to graduate with journalism degrees was a C average.
Posted by .(JavaScript must be enabled to view this email address) on March 27, 2011 at 1040 hrs
Gee: The Fitzgeralds (even assuming their legislative immunity wasn’t applicable) do not play a formal role in the implementation of passed bills once signed by the Governor.
Sumi’s ‘enjoining sentence’ you refer to may have reflected Sumi’s overall plan, but she was limited to issuing orders only to (a) named parties to the suit who (b) have something to do with the formal process of implementation.
Scott Fitzgerald was entirely free to meet with the LRB about whether the LRB had a publishing obligation under state law (although I would hope the LRB didn’t need too much reminding: don’t they read the state statutes?).
Risser says Fitzgerald’s meeting with the LRB was “arrogant”—this from a guy who ignored for weeks the Compulsory Attendance for legislators requirement under the state constitution (Article IV, section 7).
Posted by .(JavaScript must be enabled to view this email address) on March 27, 2011 at 1455 hrs
Total Entries: 19998
Total Comments: 134037
Most Recent Entry: 05/24/2012 05:43 pm
Most Recent Comment on: 05/25/2012 12:32 am
Total Members: 9751
Total Logged in members: 0
Total guests: 98
Total anonymous users: 0
Most Recent Visitor on: 05/25/2012 06:04 am
The most visitors ever was 538 on 12/01/2007 02:11 pm
Protected and licensed under a Creative Commons License (some rights reserved).