No Runny Eggs

This one’s going to be rambling, partly because I’m out of practice, partly because I still feel like death warmed over, and partly because I’m still loopy from election-induced sleep deprivation. I also promise words that are not going to be safe for work. Most of my thoughts over the last 24 hours have been scattered across the ether, so it’s time to collate them in one place.

On August 1, the signs declaring Wisconsin The Kingdom of Dane closed to business on order of the Wisconsin Kingdom of Dane Supreme Court will go up as Joanne Kloppenburg will join and create a freshly-minted liberal majority. That will put an end to any further action by the still-sitting-for-now Republican majority in the Legislature and Governor Scott Walker, which were already stopped by the opening move by the Democrat Party of Dane County (which is the DPW and has been since 2002) to invalidate and (at least in the hopes of the Left) ultimately prematurely reverse their elections.

I’ve seen the movie of those who at least claim to be right of center showing up for one election and one election only, thinking the job is done, before. Indeed, I lived through the prequel, which featured the same leading politician, Scott Walker. Back in 2002, after an unconscionable 2000-era pension grab by the Milwaukee County politicians in power was discovered, we tossed out the county executive and replaced him with Walker. The bad news – we thought we were essentially done with that and failed to replace more than 6 of the 25 board supervisors with people who would vote to implement the changes Walker wanted. Ultimately, Walker was left with only 3 reliable votes of 19 on the board once it was resized and two election cycles happened.

Fast-forward to the present. While we gave Walker a Legislature who would not be, at the end of the day, a roadblock, we forgot to make sure that the Democrats could simply run away to stall things. Worse, when push came to shove, we once again forgot that the Left considers the judiciary, and especially the Supreme Court, THE END-ALL, and that this particular election could (and ultimately did) give them the launching point to return state government to the state which they see it: of the lawyers, by the Democrats, for the unions.

Looking over the county-by-county numbers, there is a serious warning light flashing at Sean Duffy. For all the focus, and rightly-so, on how it was Dane County that led the charge, the lowest drop-offs from Tom Barrett’s vote totals in November to Kloppenburg’s, and the highest from Scott Walker’s to David Prosser’s, happened not in Dane County or even in its geographical “sphere of influence”, but in northwest Wisconsin.

By the same token, the Fox Valley proved that their one-time infatuation with Steve Kagen was an abberation. Yes, I know Prosser is from Outagamie County, but the surrounding counties also had, on a percentage basis, more liberal dropoff than conservative drop-off.

For those who want to blame Walker, or the Brothers Fitzgerald for losing the messaging war, fuck you. No, FUCK YOU! Where the fuck were we (and yes, I include myself because I didn’t do long-form post after long-form post after long-form post) when Walker’s office released a week-long series of press releases detailing outrageous exploitations of the collective bargaining system that was dutifully ignored by the legacy press? Where the fuck were we when the Greater Wisconsin Committee threw the utility sink at Prosser? If there’s one thing we should have learned in the age of New Media, it is that WE are the messengers.

For those of you who want to blame the fact that the Brothers Fitzgerald never really did move on voter ID, much less as the first thing, or for moving on collective bargaining, once again, fuck you. Instead of the Left using collective bargaining as their rallying cry, they would have unleashed the same fucking tactics against voter ID with, as far as yesterday is concerned, more success. Indeed, any action on any idea on our agenda, or even inaction would have been used as their “spark”.

Even though the war, at least for the next 4 years, is lost, there are “skirmishes” (battles, really, even though only four people matter in the Kingdom of Dane and these skirmishes will be duly ignored by them) to be won in preparation for the next war – the 2015 Supreme Court race and the liberation of Wisconsin. That it took both the utility sink and a brain-fart-induced apathy for the Left to hit parity is at least somewhat encouraging, even in Wisconsin. It is especially encouraging for those in other states; the lesson of the day is to keep up the skeer because the Left never gives up.

Over at Piece of Work In Progress, Kirsten tells how AFSCME and SEIU sold their represented workers in Sauk County down the river. In exchange for 33 more months of forced union dues, AFSCME and SEIU both ceded more than what the budget repair bill would have forced (emphasis in the original, typo corrected):

So, according to each of the revised contract drafts (a representative sample of which you can find here), the county would have the power through 2013 to:

• Implement a 0% pay increase each year
• Hire and fire at will in the face of economic difficulty
• Change or even abolish pay classifications
• Determine type and level of healthcare coverage offered
• Increase healthcare contribution levels over time
• Set the level of pension contributions

The kicker – the SEIU and AFSCME sheep went along with it, while the clerical workers in the sheriff’s office turned it down.

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.

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.

I’m actually doing a bit of a homer nod here because I am the e-mailer in question. Tom Blumer wrote about how the duelling recall efforts are playing nationwide, and the fact that, to the LeftStreamMedia, the only recalls that are happening are being organized by the Democrats. With a modification for events that happened since I sent the e-mail Monday night (specifically, a DailyKos/PPP poll) as relayed by WisPolitics’ JR Ross on Jay Weber’s show yesterday, here’s my take on who is actually vulnerable, in order of decreasing vulnerability (updates in italics, some of the original text was edited by Tom):

– Dan Kapanke (R-32nd) – Given the two college towns (La Crosse, Eau Claire) and the Mississippi River shoreline in his district, I don’t know how he ever won election. Indeed, he was beaten in the Congressional race in November. Ignore the fact that there were, until Mike Huebsch was chosen as Administration secretary, 2 Republican Assemblymen out of the 3 Assembly districts that make up the Senate district – both of them were liberal “Republicans”, and the one that is still in the Assembly voted against the budget repair bill. Further, Kapanke has been the target of multiple incidents of personal property damage.

– Jim Holperin (D-12th) – His district is the mirror opposite of Kapanke’s. All three Assemblymen in the district are Republicans. It also is one of 4 districts where there is a local effort, and it’s the one that has had the most threats directed against it (to the point where one business ordered the recall organizers to not set up there after receiving threats, and not the boycott variety).

– Dave Hansen (D-30th) – The district is slightly less Republican than Holperin’s, but once again, all three Assemblymen are Republicans. Again, there is an active local recall committee.

– Randy Hopper (R-18th) – On paper, he “shouldn’t” be vulnerable. In generic terms, the district is middle-of-the-R spectrum. However, the district is home to several prisons (think corrections officers), and Hopper is not particularly well-liked, especially by his soon-to-be-ex.

– Robert Wirch (D-22nd) – Despite the fact that 2 of the 3 Assemblymen are Democrats, this district is a toss-up. The top-line races were virtually identical to the statewide races. Once again, there is a local group at work.

Luther Olsen (R-14th) – I didn’t have this on my radar initially, but a DailyKos/PPP poll seems to suggest he’s vulnerable to the generic Dem. Much like the neighboring Hopper’s district, on paper, Olsen really “shouldn’t” be vulnerable. The fact that Olsen is “not exactly” a conservative, however, points to one of two things, both potentially troubling for Olsen – either the district is more liberal than the “top-line” races suggest, or Olsen could be vulnerable to a challenge from his right.

– Alberta Darling (R-8th) – I probably shouldn’t include this as a “vulnerable” district, but the North Shore suburbs are a bit “funny”, especially since it is right next to the UW-Milwaukee campus. The main reason the 2008 election was close was Darling had a health issue at a time that was aggressively used against her. Of note, the same DailyKos/PPP poll that suggests Olsen is vulnerable gives Darling a comfortable advantage over the generic Dem.

H/T – Kevin Binversie)

WisPolitics is reporting that Secretary of State Doug La Follette will be taking the full “10 working days” (which excludes Saturdays, Sundays, and holidays per state statute section 35.095 (1) (c)) he has under state statute section 35.095 (3) (b) to publish what is now Wisconsin Act 10. Since the state Constitution states no act is in force until it’s published, that gives the unionistas and their bought-and-paid-for local units of government two more weeks to ram through sweetheart deals.

I wish David King had been able to make it a clean sweep.

Since I’m borrowing Milwaukee Journal Sentinel story as the initial source, I’ll also borrow their headline. With a few strokes of Gov. Scott Walker’s pen this morning, the clock has now run out on unions and local units of government attempting to get one more round of one-upsmanship upside the taxpayers’ wallets. The budget repair bill, which limits public-employee collective bargaining to base pay (except for public-safety employees) is now law.

Shortly before Walker signed the bill into law, he also rescinded the planned layoffs of 1,500 state workers slated to begin on April 1. WLUK-TV has posted (H/T – Kevin Binversie) the letters delivered to the heads of the unions informing them that the layoffs will no longer be happening.

As Jim Geraghty tweeted for an alternate headline – “Walker, Wisc. GOP save or create 1500 jobs”.