On Why the Wisconsin Union Busting Bill is Not A Law…Yet…

/ seanpmassey

I didn’t intend to use my blog to comment on a political situation.  While I don’t mind discussing politics, I prefer to talk about politics without everybody being able to see my posts (for those of you who are reading this after seeing it on my Facebook feed and going “what the hell,” my Facebook privacy settings are set up so that everything I post is restricted to a sub-section of my friends list).

One further note to any readers – I am not a lawyer, and I don’t play one on TV.  Everything expressed below is an opinion and has no actual legal bearing.  It is based on my reading of the relevant documents which I attempt to link to.

There has been a lot of discussion over the past month and a half about Scott Walker’s “budget repair bill.”  I won’t editorialize on the content of that bill here, nor will I give a full history of the bill except where necessary as most of those events are well known.
This particular part of the story starts on March 11th.  After finding a way around the quorum issue in the State Senate and getting the bill passed, Governor Scott Walker signed the “Budget Repair Bill” into law.  This, however, did not cause the Act to go into effect.  Wisconsin has a public notice clause in it’s Constitution that specifies that a law cannot go into effect until it is “published.”  Secretary of State Doug La Follette stated that he would wait until March 25th to publish the law in order to allow legal challenges to be presented in court.
Shortly after that, the District Attorney of Dane County filed suit alleging that Wisconsin’s Open Meetings Laws were violated in the process of this bill becoming law.  Wisconsin has a statute that allows the District Attorney of the County where the violation occurred to file suit, and if successful, the actions taken during that meeting would be voided.  On March 18th, Judge Sumi of Dane County issued a temporary restraining order baring Secretary of State Doug La Follette from publishing the law and baring further action in implementing the law until the case can be heard.  Text of the decision can be read here.
On March 25th, Senate Majority Leader Scott Fitzgerald (R-Juneau) asked the Legislative Reference Bureau (LRB), a non-partisan agency that serves the Wisconsin Legislature, to publish the law in accordance with Statute 35.095(3)a which requires the LRB to publish Acts within 10 days.  After the LRB had published the law, Senator Fitzgerald issued a statement that it was now officially a law, and other Republican lawmakers including the Governor and Attorney General also issued statements to that effect.
But is it?  The answer, based on my reading of Wisconsin statutes and other relevant legal documents, is no.
There appears to be two statutes that govern how an Act of the Legislature goes into effect after it is signed into law by the Governor and are the most applicable in this case.  Those statutes are:
Statute 35.095(3)A and B read as follows:

(3) PUBLICATION.
(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.
(b)  The 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.

Statute 991.11 reads as follows:

991.11 Effective date of acts.
Every 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). 

So while the LRB has published the law in accordance with 35.095(3)(a), it hasn’t actually taken effect.  Judge Sumi’s restraining order prevents the Secretary of State from setting a publication date in 35.095(3)(b). Since the act does not include a date that it takes effect, Statute 991.11 applies and the act is officially in limbo.
The act did have a date of publication at one point, the Secretary of State’s office has rescinded it in compliance with Judge Sumi’s order.  The official text of the act does have a date of publication of March 25, 2011 in accordance with 35.095(3)(b), but the footnotes also note that this is not the official date as the Secretary of State’s office is barred from officially publishing the Act and that the LRB’s publication was performed under 35.095(3)(a).
In plain English, that means that while the LRB published a copy of the Act, it hasn’t taken effect as law because the Secretary of State is barred from officially assigning it a publication date, and the LRB doesn’t have the legal authority to publish it into law.
There are two other statutes that direct how the LRB and the Secretary of State’s office as to coordinate in preparing, publishing, and providing public notice of the Act or fill in other details of the process, but aren’t directly relevant to the issue.
Finally, to make matters more confusing, Article IV, Section 17, Subsection 2 of the Wisconsin Constitution states:

“No law shall be enacted except by bill.  No law shall be in force until published.”

The Constitution doesn’t define what “publication” entails.  However the annotations in the document point to Milwaukee Journal Sentinel v. Department of Administration (2009) that does discuss the publication requirement, and all of the statutes listed above cover this in some fashion as well with 14.38(10)C being the most direct application of publishing an Act of the Legislature.  I won’t touch on that further here as the publicity surrounding the this law has, in effect, generated sufficient notice nor is it relevant to the issue of whether this Act is in effect.