Yesterday, the Wisconsin Department of Justice filed motions for both the repeal of Judge Maryann Sumi’s temporary restraining order and the withdrawal of its emergency appeal of the case because it asserts Act 10 is now in force and has been since Saturday. I’ll provide the Cliff’s Notes version:
- With regard to the actual publication of an act, the Secretary of State has but one role – within one working day (i.e., a weekday that is not a state-recognized holiday) of the deposit of an act in his office, designate a date of publishment that is within 10 working days of its enactment. It is the Legislative Reference Bureau, which must publish on that designated date, or if there is no date designated, within that same 10 working-day window, that accomplishes the publication.
As there is no statutory mechanism for that date to be changed after the first working day after deposit has passed, the “good faith” attempt by Doug La Follette to rescind the assigned date following Sumi’s TRO does not have any statutory weight.
- As Dane County DA Ismael Ozanne failed to name the Legislative Reference Bureau in his attempt to overturn established case law barring judicial restraint on the publication of an act, it published the act in accordance with state law, and “(t)hat bell cannot be unrung now”.
- As for the argument that it is a post-publication notice (one that can be as late as 10 days after the date of publication set by the Secretary of State and the act of publication by the Legislative Reference Bureau) by the Secretary of State in the official state newspaper, the Wisconsin State Journal, that is publication for the purposes of the constitutional requirement to publish, the DOJ notes the distinction in the state statutes between the actual publication of the act and a post-publication notice that includes the date of publication to knock that argument down.
- As for the argument that a failure by the Secretary of State to designate a date of publishment (or specifically in this case, attempt a recession of designation), the DOJ asserts that, when the various mandates on the publication of an act are read together, the intent of the Legislature was that, unless specified in the act, it is to take effect no later than the day after ten working days after enactment, with a Secretary of State-exercised option to make that date earlier. I’ll quote from the request if this is not the case (emphasis in the original):
To read these statutes any other way would permit a Secretary of State to delay publication of the act, thus granting far more power to the office of the Secretary of State than the Legislature intended when it imposed a series of ministerial, non-discretionary duties on the office. It would also effectively nullify the statutory directive to LRB to publish acts based upon the time the governor approves of a bill, and not when the Secretary of State acts. And most significantly, it would deprive the legislative of its prerogative to pass laws and put them into force. Goodland, 243 Wis. at 468 (“If a court can intervene and prohibit publication of an act, the court determines what shall be law and not the legislature…. This it may not do.”)
The ball is now squarely in Sumi’s court (no pun intended). If she were honest in her opposition to the act, she would vacate the existing TRO and replace it with one that blocks enforcement. Something tells me, however, she is going to try to retain her ill-conceived seizure of power for herself, the remainder of the liberal wing of the judiciary, and Doug La Follette.