No Runny Eggs

Disclosure – I am not a lawyer. Further, I do not have access to the records of the Goodland case from 1943, so I cannot answer how the Supreme Court, and if memory serves, the appeals court before it, dealt with the timing issues related to the striking down of the circuit court’s attempt to block publication of an act. Therefore, there is a possibility this analysis could be in error.

In case you missed the news, the Wisconsin Supreme Court, as part of taking the case of Wisconsin Act 10 on original jurisdiction, vacated and voided ab initio all orders and judgements issued by Dane County Circuit Judge Maryann Sumi in the original case that had blocked implementation of the act as Sumi exceeded her authority set by both the state constitution and the Supreme Court by enjoining publication of the act.

Predictably, Democrat Secretary of State Doug La Follette thinks he can delay for at least a bit longer its enforcement because, based solely on the first of Sumi’s orders, he changed the designated publication date from March 25 to a date uncertain. Meanwhile, Assembly Speaker Jeff Fitzgerald (R-Horicon), speaking on Mark Belling’s show on WISN-AM shortly after the ruling, and Sen. Mary Lazich (R-New Berlin) believe Act 10 is now law. For his part Department of Administration Secretary Mike Huebsch says his office will begin implementing the act “when appropriate”. Let’s see if I can sort some of this out.

While the order from the Supreme Court does not directly address the date of publication, from which, in normal circumstances, the effectiveness of an act stems, it can be inferred from both the order and the statutes that the act is considered by the Court to have been published on March 25, and by Wis. Stat. §991.11, which states, “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),” and by the order yesterday voiding all of Sumi’s blocking orders, it is currently in effect.

I’ll leave the distinction between the three possible effective dates (March 26, June 14 or June 15) to the professionals as that can and probably will have legal consequences for those local units of government who cut deals with public unions on and after March 26. I will, however, push on with the publication date.

Paragraph 10 of the order comes closest to addressing whether the act is already published, and indeed is the only paragraph of the order itself that mentions either the office of the Secretary of State or the person who holds it:

10 Article IV, Section 17 of the Wisconsin Constitution vests the legislature with the constitutional power to “provide by law” for publication. The legislature has set the requirements for publication. However, the Secretary of State has not yet fulfilled his statutory duty to publish a notice of publication of the Act in the official state newspaper, pursuant to Wis. Stat. § 14.38(10)(c). Due to the vacation of the circuit court’s orders, there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c).

Let’s review what that section, which covers the duties of the Secretary of State says:

Publish 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. Costs under this paragraph shall be charged to the appropriation under s. 20.765 (1) (d).

Do note the “after the date of publication” part of the time limit to publish the notice, and the requirement to include the “date of publication” in the notice, in § 14.38(10)(c). Also, do notice the specific language in the order saying that La Follette had “…not yet fulfilled his statutory duty to publish a notice of publication of the Act…”. The inclusion of that specific language, and not any language that refers to the publication of the act itself, strongly suggests that the majority believes that the act was already published by state law.

The Supreme Court, as stated above, voided ab initio all of Sumi’s orders, including her first temporary restraining order on March 18 enjoining La Follette (and only La Follette) from any further action in the process of publication and implementation of Act 10. To put it in English, that means that in the eyes of the Court, none of Sumi’s orders ever were valid.

La Follette, who on March 14 had designated March 25 as the publication date, subsequently sent notice to the Legislative Reference Bureau informing them that, pursuant to that TRO he rescinded the publication date and would not issue a new one until a later date.

Since the TRO no longer has, and indeed never did have, any legal standing, the question is whether La Follette had any statutory authority to change the publication date days after designating one. A quick review of the timeline is in order:

• On March 11, Governor Scott Walker signed Act 10, thus enacting it, and deposited it in the Secretary of State’s office for publication.
• On March 14, La Follette, pursuant to § 35.095(3)(b), designated to the Legislative Reference Bureau March 25, the last date allowed by statute, as the date of publication of the act.
• On March 18, Sumi issued her first TRO enjoining La Follette from publishing the act. Also on that date, La Follette used that TRO as the justification in an attempt to change the March 25 date of publication to a date uncertain.
• On March 25, the Legislative Reference Bureau, pursuant to § 35.095(3)(a), published the act on the last date allowed by statute with a note that, due to the TRO, La Follette was enjoined from publshing the act.

There is a further limitation to the Secretary of State’s ability to designate a date of publication beyond the 10 working day requirement in § 35.095(3)(b). § 14.38(10)(a) reads, “No later than the next working day following the deposit of an act in his or her office, provide written notice to the legislative reference bureau of the act number and date of enactment, and the designated date of publication of the act under s. 35.095.”

There is, as far as I can tell, no statutory language that gives the Secretary of State any authority to, after the working day following the deposit of an act in his office, change the designated date of publication, much less to a date beyond 10 working days after the date of enactment.

In this case, since La Follette designated March 25 as the date of publication on March 14, the working day after the act was deposited in his office, and the Supreme Court voided the judicial justification for a date-of-publication change after March 14, La Follette’s attempt to change the date of publication on March 18 is without any legal basis.