When I first read about this, I actually dismissed it. There was no way that the laws of the state of Wisconsin would be so consistently abrogated in this fashion, I thought. Well, fool me once…
The Legislative Reference Bureau, a nonpartisan bill drafting and library organization that works for the state Legislature in Wisconsin, published the controversial anti-union bill. A Dane County judge has put a restraining order on implementation of the bill. However, the LRB claims in a footnote that the restraining order only applies to the Secretary of State, who normally publishes bills. Here is the content of the footnote in the legislation:
Pursuant to section 35.095 (3) (b), Wis. Stats., the secretary of state designated March 25, 2011, as the date of publication for this act. On March 18, 2011, the Dane County Circuit Court enjoined the secretary of state from publishing 2011 Wisconsin Act 10 until further order of the court. Section 35.095 (3) (a), Wis. Stats., requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment.
With the bill officially published, the Secretary of Administration, Mike Heubsch, put out a statement: “Today the administration was notified that the LRB published the budget repair bill as required by law. The administration will carry out the law as required.” Laws in Wisconsin normally take effect the day after publication.
This means that, despite a restraining order against the implementation of the bill, the Governor’s office plans to implement it anyway. This goes below the admittedly low bar I normally set for conduct by public officials.
State Sen. Jon Erpenbach alleged on his Facebook page that Senate Majority Leader Scott Fitzgerald forced the LRB to publish the bill:
Fitzgerald ordered LRB [Legislative Reference Bureau] to publish the law. It’s unclear if that does in fact make it law. LRB is unclear on that too. Lawyers are sorting things out [...]
Fitzgerald has ordered a non partisan agency to do something that us clearly partisan. Never ever has that been done before.
Not even the LRB knows if their publication makes the bill a law. Traditionally, as I said, the Secretary of State has that power.
At the same time as all this is going on, a third lawsuit has been filed against the anti-union legislation, this time by city of Madison firefighters and public works employees, claiming that it included fiscal items and therefore should require a quorum, which it did not have in the state Senate.
AFL-CIO Laborers Local 236 and Firefighters Local 311 allege that despite claims to the contrary, the bill contained provisions that have fiscal impacts on the state and required a quorum of three-fifths of the Senate to vote on it.
There were only 19 of the 33 senators present for the vote, all Republican. The Senate’s 14 Democrats were in Illinois to deny Republicans the quorum for the fiscal portions of the bill.
We still don’t know if the state Supreme Court will take up the restraining order on the bill, which has been appealed by the state Attorney General. But the Walker Administration is acting like the restraining order didn’t exist.
The level of contempt for the law is astounding to me.
UPDATE: Assembly Minority Leader Peter Barca just released this statement:
“In conversations this evening with Legislative Council attorneys, I was informed that it is their opinion, as well as the opinion of the Legislative Reference Bureau director, that Act 10 will not take effect based on the actions taken by the Legislative Reference Bureau late this afternoon.
“This bill has been under a cloud of suspicion since day one. Today’s actions and statements are only perpetuating the problem. The people of Wisconsin expected that because of the court injunction, Act 10 will not be able to take effect.
“Official publication by the Secretary of State is required for this act to go into effect. The Secretary of State, the only Constitutional officer with the power to publish law, is prohibited by court order from publishing this Act.
“I can only hope that the confusion resulting from today’s actions and comments does not harm the many communities and people who will be impacted if this does becomes law. The statements by the administration and legislative leaders only add to the confusion. We can only hope that their misstatements were not intentional or malicious.”
Of course, the point is not necessarily whether the Secretary of State has the sole power to publish law – that looks clear to me. It’s whether the Walker Administration THINKS the bill is now published and law that’s the problem, and what will be the remedy for that.