News outlets are reporting that the Legislative Reference Bureau (LRB) has published Governor Walker's union-busting bill, despite a court order preventing publication on grounds that the bill's passage likely violated Open Meetings laws. A quick review of the statutes suggests the bill may have become law, but also suggests the entire court battle may have been focused on the wrong characters, and that the state has arguably violated the court order.
Article updated: see below
Judge MaryAnn Sumi's order from one week ago enjoins Secretary of State Douglas LaFollette from publishing the bill, with publication being a necessary step before it can become law. Sumi states "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 Legislative Reference Bureau, though, is not subject to the order and is arguably not prohibited from publishing the bill. However, Judge Sumi's order may have been stated broadly enough that the state could still be found in contempt.
Section 991.11 of the Wisconsin Statutes states that "every act ... shall take effect on the day after its date of publication as designated under [Section] 35.095 (3)(b)."
Section 35.095(3)(b) states that the Secretary of State shall designate a date for publication not more than ten working days after the date of enactment. Note that this does NOT say that the Secretary of State actually publishes the act: according to § 35.095(3)(a), the Legislative Reference Bureau is tasked with publication, not the Secretary.
After the bill was passed by both houses and signed by Governor Walker, Secretary of State LaFollette designated March 25 (today) as the publication date. This designation appeared to fulfill his duty under § 35.095(3)(b). Judge Sumi's order enjoined LaFollette from publication (a duty not noted in § 35.095(3)), but the order did not alter the March 25 publication date. (correction 7:30pm: see below)*
Can the State be Found in Contempt?
Judge Sumi's order did not change the publication date, and did not mention the Legislative Reference Bureau. By publishing on the date originally set by the Secretary of State, the Attorney General may argue, the Bureau is merely satisfying its duty under § 35.093(a). The District Attorney did not ask the court to enjoin publication by the Legislative Reference Bureau, and the order does not mention the Bureau in any way. Therefore, the argument would go, Judge Sumi's order does not enjoin publication by the Legislative Reference Bureau.
On the other hand, Judge Sumi concludes her order by stating "I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10." And although she (perhaps erroneously) mentions "[t]he next step in implementation of that law would be the publication of that law by the Secretary of State," it does not change the clear intent of her order. More wild times in Fitzwalkerstan.
CMD has found that LaFollette sent a letter to the Legislative Reference Bureau revoking the March 25 publication date, and instructing the Bureau to not proceed with publication until he sets a new date. This raises at least two questions.
First, can the Secretary of State revoke his publication date once it is set? In particular, can it be revoked for purposes of § 991.11, which states that "every act ... shall take effect on the day after its date of publication" set by the Secretary of State?
Second, does the Secretary have the authority to instruct the Bureau to not publish the law? In particular, can the Secretary instruct the Bureau to violate § 35.095(3)(a), which requires that the Bureau publish every act "within 10 working days after its date of enactment"?
In response to an inquiry from Rep. Peter Barca, Wisconsin Legislative Council attorney Scott Grosz writes that Legislative Reference Bureau Chief Steve 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."
Grosz' letter interprets the relevant statutes the same way I do, but differs with my interpretation in that he assumes that the Secretary of State has a publication duty (and publication authority). Neither the duty nor the authority are mentioned in any of the statutes he and I have referenced. While there may certainly be other statutes establishing the Secretary of State's publication duties and authority, they are not cited in his letter.
After giving Grosz' letter a closer look, it appears that the LRB Chief Miller is the one who assumes the Secretary of State has independent publication authority, whereas Grosz' interpretation subtly recognizes that the Secretary may not have authority to publish, and might only have authority to designate a publication date. By calling the Secretary's duty "publication-related," Grosz gives the impression that his interpretation squares with Miller's, but a closer look suggests that he has identified the problem with Judge Sumi's order only enjoining the Secretary's "publication."
UPDATE Mar 26/Noon:
Dane County's on-call judge has declined District Attorney Ismael Ozanne's request for a hearing on the LRB's action. Judge Sarah O'Brien originally scheduled a hearing for 10am this morning, but cancelled it on grounds that restraining orders are issued to protect the status quo, not to undo something that has already been done. She writes "[o]rdering that the bill be taken off the [LRB] website, as I believe Attorney Ozanne would like to request, would have no legal significance." O'Brien explains that she is taking no position on the issue of whether the LRB posting the law on its website amounts to "publication."
DA Ozanne also released a statement last night declaring the LRB's actions have no legal significance. Ozanne also states that he is looking forward to Tuesday's at 8:30am in front of Judge Sumi (which may be affected by how the appellate courts treat the AG's appeal).
UPDATE Mar 27:
Secretary of State Douglas LaFollette insists the bill has not yet become law, saying "It's still an act of the Legislature that has not yet become law because I have not yet designated a publication date." The Secretary of State apparently has an additional publication duty besides designating a publication date-- he directs publication in the official state newspaper, the Wisconsin State Journal (the LRB only "published" on their website). While newspaper publication has not happened, it is unclear whether that is necessary for a bill to become law. Some caselaw relevant to the appeal of Judge Sumi's decision suggests "publication" can be construed broadly.
Senate Majority Leader Scott Fitzgerald (R-Juneau) stated that the LRB's action alone means "[i]t's published," Fitzgerald said. "It's law. That's what I contend."
Governor Walker's office has only issued a vague statement saying that "the administration will carry out the law as required."
Department of Administration Secretary Mike Huebsch said in a written statement: "Upon the advice of my legal counsel, the Department of Administration will begin the process of implementing (the law) as we are required to do the day after a bill is lawfully published. We are mindful that this Act is continuing to be litigated and we will continue to be responsive to the courts as the law begins to be applied."
Senate Minority Leader Mark Miller (D-Monona) said Huebsch's statement "is just another example of how desperate the governor and the Republican leadership is to try to circumvent the law and circumvent having a court determine whether or not they acted appropriately with the law."
At least one school district has suspended negotiations on a new teacher contract amid uncertainty about whether the union-busting bill has become law.
UPDATE March 28:
The Wheeler Report has released the memo from Senate Majority Leader Scott Fitzgerald to the LRB ordering publication. Fitzgerald is a party in the lawsuit and was subject to Judge Sumi's restraining order. If Judge Sumi's order is read broadly (she says "I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10"), he may have violated it by ordering publication.
In a press release issued today, Attorney General JB Van Hollen, whose office is defending against DA Ozanne's suit seeking to block the union-busting bill from becoming law, has asked Judge MaryAnn Sumi to vacate her order enjoining Secretary of State La Follette's publication. Van Hollen alleges that the LRB's publication on Friday means the bill is now law, and that DA Ozanne's suit to keep it from becoming law no longer has any purpose. Van Hollen also claims that Secretary of State LaFollette made a good faith effort to comply with the court order, and because the LRB was neither named in the suit nor mentioned in Judge Sumi's order, its publication did not violate the court order. Van Hollen also asked to withdraw his appeal of Judge Sumi's decision, alleging that there is nothing to appeal because the case is moot.
Madison City Attorney Michael May has issued a memorandum today opining that the bill is not yet law, as the LRB does not have authority to establish a date of publication, and the date of publication determines when the Act is effective. City Attorney May finds a distinction between the "date of publication" determined by the SOS, which according to 991.11 establishes the effective date of the act, and "publication" by the LRB. May also refers to Wis. Stat. § 14.38(10)(c), which requires the SOS to publish in the state newspaper within 10 days of the date of publication; he says that prior statutes had required this SOS publication in the state paper for a law to become effective, but in recent years, the statutes have been modified to make publication a joint effort between the SOS and LRB. His memo states that the LRB overstepped its legal authority in publishing without the SOS setting a date, and that the bill is not law until the SOS does so.
The Marquette University Law School faculty blog has looked at the statutes and surrounding statutory materials to find that the LRB's publication does not make it law.