The Legislative Reference Bureau (LRB) in Wisconsin has published the budget repair bill which is subject to a TRO against the Secretary of State.
The LRB felt that the law could be published, and take effect tomorrow [see Update], because the LRB was not a named party in the court proceedings and arguably not subject to the TRO. As reported by JSOnline:
The legislation was published Friday with a footnote that acknowledges the restraining order, but says state law “requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment.”
The restraining order was issued against Democratic Secretary of State Doug La Follette, but the bill was published by the reference bureau. The reference bureau was not included in the temporary restraining order.
Laws normally take effect a day after they are published, and Gov. Scott Walker’s administration is proceeding as if it takes effect Saturday.
“Today the administration was notified that the LRB published the budget-repair bill as required by law,” said a statement from Administration Secretary Mike Huebsch. “The administration will carry out the law as required.”
Although Republicans control the legislature, the LRB is considered non-partisan, according to JSOnline:
The Legislature is run by Republicans, but the reference bureau is a nonpartisan agency widely respected by both political parties.
Here is the applicable language from the TRO, and it certainly seems to apply specifically to the Secretary of State, not all of Wisconsin government:
I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10. The next step in implementation of that law would be the publication of that law by the Secretary of State. He is restrained and enjoined from such publication until further order of this court.
According to Wisconsin State Journal, the LRB acted alone:
Under state statutes, the secretary of state is required to set a publication date no more than 10 working days after a law is signed. A separate law requires the Reference Bureau to publish legislation within 10 days of enactment.
No action by the secretary of state is required for the Reference Bureau to act, Department of Justice spokesman Bill Cosh said, adding that La Follette did not direct the publication of the law and is not in violation of a temporary court order barring him from publishing the law.
The Dane County District Attorney appears to have made a tactical error in not naming all necessary parties. The D.A. already has served an Amended Complaint after the TRO to add parties, but still does not name the LRB as a party. The Amended Complaint does name the Assembly and Senate as entities, but if the LRB is independent, it may be necessary to serve a Second Amended Complaint.
That said, I’m not sure where this gets the State other than getting the law into effect and preventing arguments later that the failure to comply with the 10 day deadline nullified the votes.
Even if technically the LRB did not violate the TRO, Democrats will be back in Court as soon as they can find a Judge (Judge Sumi is not back until Tuesday), to get a TRO which covers all necessary parties. Of course, at that point, the law will have taken effect, so the issue will be implementation of the law, not whether the Secretary of State could publish it.
Also expect contempt proceedings, as Democrats will argue that the LRB was covered.
Updates: The Green Bay Press Gazette quotes the head of the LRB as describing the publication as ministerial, and not necessarily meaning the law will be in effect:
But the head of the bureau says its action was purely ministerial and wouldn’t result in the law taking effect. Steve Miller says the law won’t actually take effect until Secretary of State Doug La Follette orders it published in a newspaper.
La Follette, though, says it’s not clear what the action means.
Gov. Scott Walker’s office says it’s been notified that the law had been published and will carry it out as required. Walker signed the measure March 11.
So does the bill become “law” tomorrow? This analysis by the pro-union Center for Media and Democracy indicates that the law is effective under the statutes:
News outlets are reporting that the Legislative Reference Bureau has published Governor Walker’s union-busting bill, despite a court order preventing publication on grounds that the bill’s passage likely violated Open Meetings laws. A quick review of the statutes suggests the bill may have become law, but also suggests the entire court battle may have been focused on the wrong characters, and that the state has arguably violated the court order….
Section 991.11 of the Wisconsin Statutes states that “every act . . . shall take effect on the day after its date of publication as designated under [Section] 35.095 (3)(b).”
Section 35.095(3)(b) states that the Secretary of State shall designate a date for publication not more than ten working days after the date of enactment. Note that this does NOT say that the Secretary of State actually publishes the act: according to § 35.095(3)(a), the Legislative Reference Bureau is tasked with publication, not the Secretary.
After the bill was passed by both houses and signed by Governor Walker, Secretary of State LaFollette designated March 25 (today) as the publication date. This designation appeared to fulfill his duty under § 35.095(3)(b). Judge Sumi’s order enjoined LaFollette from publication (a duty not noted in § 35.095(3)), but the order did not alter the March 25 publication date.
Added: Commenter Simon links to an e-mail from the legislative counsel indicating more than LRB publication is needed, but the e-mail is not categorical, and simply summarizes preliminary indications.DONATE
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