Wisconsin Secretary of State Doug La Follette listens to Assistant Attorney General Maria Lazar make her opening statements at a hearing in front of Dane County Circuit Judge Maryann Sumi at the Dane County Courthouse on Tuesday. Credit: Associated Press

By of the

Madison - For the second time in less than two weeks, a Dane County judge Tuesday issued an order blocking the implementation of Gov. Scott Walker's plan to curb collective bargaining for public workers.

Dane County Judge Maryann Sumi said that her original restraining order issued earlier this month was clear in saying no steps should be taken to advance the law. The GOP governor's administration did so after the bill was published Friday by a state agency not named in Sumi's earlier temporary restraining order.

"Further implementation of the act is enjoined," Sumi said.

"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear."

She warned that those who violate her order could face court sanctions.

But outside the courtroom, Assistant Attorney General Steven Means said the legislation "absolutely" is still in effect.

The statement by Means - the executive assistant to Republican Attorney General J.B. Van Hollen - shocked Assembly Minority Leader Peter Barca (D-Kenosha).

"It's just startling that the attorney general believes you should not follow court orders anymore," he said.

In a later statement, Department of Justice spokesman Bill Cosh said: "We don't believe that the court can enjoin non-parties. Whether the Department of Administration or other state officers choose to comply with any direction issued by Judge Sumi is up to them."

The new restraining order bars Democratic Secretary of State Doug La Follette from designating a publication date for the law or running a notice about it in the official state newspaper, the Wisconsin State Journal. Sumi's written order does not name anyone else.

It is in effect until further order of the court, and another hearing is slated for Friday. Dane County District Attorney Ismael Ozanne, a Democrat, has asked her to permanently halt the law because he believes a legislative committee violated the open meetings law when it approved the legislation.

Sumi has not yet ruled on whether lawmakers violated the open meetings law, but she noted the Legislature could resolve the litigation by passing the measure again. Republicans who control the Legislature showed no signs of considering that.

"It's disappointing that a Dane County judge wants to keep interjecting herself into the legislative process with no regard to the state constitution," said a statement from Assembly Speaker Jeff Fitzgerald (R-Horicon). "Her action today again flies in the face of the separation of powers between the three branches of government."

A pair of Marquette University law professors had different takes on the ruling.

To Edward A. Fallone, it confirmed his view that clients should not "look for technicalities in order to evade" a temporary restraining order "but rather to behave in the spirit of the order and not try to push the envelope."

"I think it was predictable that the judge would not be happy with the actions of the Walker administration in implementing the law," he said.

Richard Esenberg said he was not surprised by the ruling but criticized the judge.

"There is applicable Supreme Court precedent that a court has no authority to enjoin the publication of a law," he said. "The state has repeatedly cited that law to her and as far as I know she has not only failed to explain herself about why she feels she has the authority, she hasn't even acknowledged there is an issue. That just leaves me speechless."

Esenberg was referring to a 1943 state Supreme Court opinion that said courts could not interfere with legislation until it is published and becomes law.

Tuesday's dramatic court maneuvering added yet another twist in the saga that has dominated state politics for six weeks.

Workers in limbo

Walker's plan would eliminate most collective bargaining for public workers and require state workers to pay more for their benefits. As the legal and political skirmishing continued, thousands of state workers remained in limbo over how much cash would be deducted from their paychecks.

On Monday, Administration Secretary Mike Huebsch announced he believed the law took effect Saturday, and the state was now charging employees more for their benefits and had ceased collecting dues on behalf of unions. Those changes would show up on checks issued April 21.

Whether the state will continue on that track remains unclear. Huebsch issued a brief statement Tuesday that said only that he was studying the judge's order.

Last month, Republicans tried to quickly pass the measure, but were stymied when all Senate Democrats left the state. The bill required 20 senators to be present to hold the vote because it included appropriations, and the Republicans hold just 19 seats.

After three weeks, on March 9, Republican leaders quickly formed a conference committee of lawmakers from both houses. The committee stripped the appropriations from the bill and forwarded the bill to the Senate, which passed it minutes later with all Democrats absent.

The Assembly then forwarded it to Walker, who signed it March 11.

Ozanne then filed a complaint alleging the committee violated the open meetings law because it didn't give enough public notice before meeting and because access to the Capitol was limited. Republicans say they did not violate the meetings law.

Sumi on March 18 determined Ozanne was likely to succeed in the case and issued a temporary restraining order against La Follette to halt the law.

But on Friday, the Legislative Reference Bureau - which was not named in the restraining order - published the law, and the administration said that put the law into effect on Saturday. Ozanne and others disagreed.

State law requires the secretary of state to designate a date to publish laws within 10 business days of the governor signing it. Unless otherwise specified in legislation, laws take effect the day after the date designated by the secretary, but the reference bureau prints paper copies of the law and publishes them on the Legislature's website.

La Follette had told the reference bureau to publish the bill on Friday, March 25, and the reference bureau prepared a copy of the law with that publication date, testified Cathlene Hanaman, deputy chief of the Legislative Reference Bureau.

La Follette later rescinded his order designating the publication date because of the court order, and on Thursday the reference bureau removed the publication date, Hanaman said.

On Friday, after top reference bureau officials met with the Senate Majority Leader Scott Fitzgerald (R-Juneau), the bureau reinstated the publication date and added a footnote mentioning the restraining order, Hanaman testified.

"He is our boss, so a request from him would be at the level of insisting," Hanaman said of Fitzgerald.

Stephen Miller, chief of the reference bureau, said he concluded at the meeting he was required to publish the law, but he did not believe that the law would go into effect until the secretary of state designated the date the bill was to become law.

Miller and Hanaman said they had never been in a similar situation and knew of no other instances in which a law was published without a date being established by the secretary of state.

Also during the hearing, Sumi allowed La Follette to choose his own attorney because he disagrees with the Department of Justice on key issues. The Department of Justice maintains the reference bureau's actions were enough to put the law into effect, while La Follette says he must act as well.

Roger Sage will represent La Follette, but it is unclear if the state or La Follette will pay those costs.

That left the Department of Justice without any clients in the courtroom. The four Republican leaders that the agency represents are immune from civil process while the Legislature is in session.

As the legal fight continues, Sumi said the dispute could be resolved by the Legislature again passing the measure.

"I am dismayed at this point given the relative easy fix for this that thousands and thousands of dollars are being spent, all being footed by the taxpayers of this state to pursue this litigation," Sumi said.

Other legal challenges have been filed. They contend 20 senators had to be present to approve the measure because some fiscal provisions remained in it. The merits of the law itself have also been challenged in court, and the state Supreme Court is widely expected to decide the ultimate fate of the legislation.

After Sumi issued her original restraining order, the Department of Justice filed an appeal. The appeals court, without weighing in on the matter, said the Supreme Court should take it up.

But after the reference bureau published the law, the Department of Justice asked to withdraw its appeal. On Tuesday, the appeals court declined to allow that, saying it was in the hands of the Supreme Court.

The high court hasn't said if it would take the case, though the justices met in closed conference on the matter.

Because the appropriations were taken out of the legislation, lawmakers must still resolve a shortfall in the fiscal year that ends June 30. Huebsch said that could be done with a $165 million bond restructuring that could be taken up as early as Tuesday, but he did not yet know what else might be included in a bill to do that.