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The Dems and Sumi enjoined the wrong entity – UPDATE – Or did they?

by @ 17:41 on March 25, 2011. Filed under Politics - Wisconsin.

The Milwaukee Journal Sentinel reports that despite the injunction placed on Democrat Secretary of State Doug La Follette prohibiting him from publishing Wisconsin Act 10, the non-partisan Legislative Reference Bureau has published it. Perhaps a review of Wisconsin Statute Chapter 35.095(3) is in order:

(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.
(c) Copies of each act or portion of an act enacted by the legislature over the governor’s partial veto shall be available on or before its date of publication to subscribers under s. 35.87 who pick up their documents. At appropriate intervals, the officer designated under s. 35.87 shall certify to the secretary of state that each act or portion of an act was available to subscribers on or before its date of publication.

Prior to the injunction, La Follette designated today as the date of publication of Act 10. At that point, his role over the publication of Act 10 ended. Therefore, as of tomorrow, Act 10 is the law of Wisconsin.

I will note that there is now another act of notification La Follette must do according to statute. According to Wisconsin Statute Chapter 14.38(10)(c), he must “(p)ublish in the official state newspaper within 10 days after
the date of publication of an act a notice certifying the number of each act, the number of the bill from which it originated, the date of publication and the relating clause. Each certificate shall also contain a notice of where the full text of each act can be obtained.” That notification, however, does not affect whether the law can be enforced.

Revisions/extensions (10:53 pm 3/25/2011) - I’ve been gone a few hours, and some further things have fallen into place. First, I’d like to thank Allahpundit for linking here. Much appreciated, AP.

While I was out, the gang at WisPolitics (and specifically, the Budget Blog) have been busy throwing cold water on the matter. First, they dug up a letter sent by La Follette to the LRB telling them to not publish Act 10 today or on any date until he sets a new date.

That throws into doubt whether the bill, even though it is published, can take effect. In a letter to Assembly minority leader Peter Barca (D-Kenosha), Wisconsin Legislative Council staff attorney Scott Grosz noted that State Statute Section 991.11 “states that every act that 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), Stats.” Indeed, Grosz cited LRB chief Steve Miller as saying that Act 10 will not take effect tomorrow because of a lack of date from either La Follette or a specific written date in the Act.

R&E part 2 (7:35 am 3/26/2011) - Rick Esenberg weighed in on the matter late last night (or at least later than my feed reader’s last update from Shark and Shepherd – Google #FAIL). For those of you hopping in here from Hot Air, Esenberg is a faculty member at Marquette University Law School and a lawyer. The money quote from Esenberg, who is of the opinion that it is law as of today:

One’s initial reaction is that it has been satisfied. The Secretary is required to designate a publication date and he did so. The “publication activity” then becomes the responsibility of the LRB. But Secretary LaFollette did attempt to rescind his designation of the publication date. The issue now becomes whether that means anything.

The statute does not say that he has the power to rescind the publication date. Indeed the statutory framework does not seem to contemplate that there can be a publication date that is distinct from the date that the LRB publishes. There is a single date that is to be specified by the Secretary but that, in any event, must be accomplished by the LRB within ten days of enactment. The best reading of 35.095(3)(a)and (b) is that there is a single date of publication because there is no act of publication that is required of the Secretary to make the law become effective. The LRB seems to think that the Secretary has some further publication obligation that is related to the Act’s effectiveness. But there does not seem to be anything that can fairly be called that. All he can do is pick another day for something that the LRB had to do by today.

The Secretary is supposed to inform the LRB of its obligation. The LRB is supposed to carry it out. If you want to stop publication (which, under Goodland, a court may not do), you had better sue the LRB.

In any event, Secretary LaFollette was not ordered to rescind his designation of a publication date by Judge Sumi. Her order only enjoins him from doing something – publishing – that he had no power to do. Perhaps recission of the date is to be implied from her order but one would have expected both the DA and the judge to be more precise about that.

At the end of the day, it’s possible to argue that the law will not go into effect tomorrow but the greater likelihood is that it will.

R&E part 2 (12:37 am 3/29/2011) - I posted some non-lawyer analysis of the Department of Justice motion to vacate the TRO, specifically dealing with the alternative world where the Secretary of State is an Übergovernor and the judiciary is the Überlegislature.

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