Dane County, Wisconsin, District Attorney Ismael Ozanne obtained a temporary restraining order to stop the Secretary of State from publishing the anti-union law on the designated date of March 25.

The Wisconsin Constitution provides that "no law shall be in force until published" (Milwaukee Journal Sentinel v. Department of Administration (2009)) because the purpose of publication is to inform the public of new laws.

After the TRO was issued, Secretary of State La Follette instructed the Legislative Reference Bureau to not proceed with publication and rescinded designation:

After the restraining order was issued March 18, La Follette sent a letter that same day to the reference bureau rescinding earlier instructions to publish the bill Friday. "I further instruct you to remove all reference to March 25, 2011, as the publication date and not to proceed with publication until I contact you with a new publication date," his letter said.

The Wisconsin statutes are clear that the Secretary of State has the constitutional duty and authority to determine when the law is published within the statutory time period before it can take effect and the LRB works with the Secretary to accomplish official publication of the law. The statutes set out the roles with the Secretary of State charged with the official publication of the law (designating the date of publication and instructing the LRB to publish) and the LRB does the publishing (assembling, printing, copying).

The key or trigger for publication is that the Secretary of State designates a date for the publication of the law. The Secretary of state "shall designate a date of publication for each act" which is "enacted by the legislature" and this "date of publication may not be more than 10 working days after the date of enactment," or the date of "approval by the governor." [Wisconsin Statutes, Section 35.095(3)(b)]

Two other statutes show that this designated date is the date of publication for the law. One, the "date of publication" is defined as the "date designated by the secretary of state under sub. (3)." [Wisconsin Statutes, 35.095(1)(b)]

There is another key statute that essentially defines when a law takes effect as the day after date of publication as determined by the Secretary of State:

991.11 Effective date of acts. 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).

The last part of this quote, "as designated under s. 35.095 (3) (b)," references the statutory section that sets out the role of the Secretary of State discussed above.

How do we know that Section 991.11 should be interpreted as vesting the publication of laws with the Secretary of State? Because, once again, this is how the Wisconsin Supreme Court has interpreted this statutory provision: The date of publication is the date determined by the Secretary of State, not the legislative reference bureau.

*State v. Koput (1988):

Section 991.11, Wisconsin Statutes 1983-84: Effective date of acts. "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" by the secretary of state [the date of publication may not be more than 10 working days after the date of enactment].

This is also the interpretation of nonpartisan Legislative Council that posting the link at the website would not cause the law to take effect:

That's because although state law provides for a separate role for both the reference bureau and the secretary of state in publishing laws, the section in state law on when legislation takes effect refers only to action by the secretary of state, the memo said.

Thus, the law cannot be published until the Secretary of State first designates a date for publication. After the Secretary of State determines a date of publication, then he or she directs the legislative reference bureau to do the actual publishing of the law on that date, as was done in this case before the instruction was rescinded.

The law also explains that the role of the LRB is that it "shall publish every act" enacted by the legislature "within 10 working days after its date of enactment." [Wisconsin Statutes, Section 35.095(3)(a)]

Another statute explains that the LRB is authorized to publish in the sense of preparing, assembling and printing copies of the law when it prepares volumes of the Laws of Wisconsin, and this definition is arguably applicable to publishing in this case. Chapter 35 of Wisconsin Code is called the Publication and distribution of laws and public documents and discusses how the LRB is charged with the duty to prepare and copy or print the laws. Section 35.15(1)(a) mandates the LRB to "prepare camera-ready copy" for the volumes of the state laws, another section directs what the volumes must contain, and the law also directs that each "copy shall show" the date of enactment, publication and other information. When these tasks are completed, then the chief of the LRB issues a certificate that is filed in the office of the Secretary of State to confirm that he or she has compared the printed acts with the original acts and that they appear to be printed correctly. When all this prep and copy work of the law is done, then the LRB "shall publish the Laws of Wisconsin as expeditiously as possible in such number of volumes and at such times as the bureau determines to be appropriate."

The Wisconsin Supreme Court has also described that the publication process means that the law must be published not on a website, but in the official state newspaper in order for the law to take effect:

The secretary of state delivered a copy of this bill to the Wisconsin State Journal on December 21, 1967, for publication. The Wisconsin State Journal is, by statute, the official state newspaper in which bills must be published before they become effective as law. [Bradley v. Knutson (1974)]

In Milwaukee Journal Sentinel, the Wisconsin Supreme Court stated a test to determine whether an action was sufficient to constitute publication, which is a different question from who has authority to publish:

General notice to the public of laws by which all will be bound is the policy that drives publication. Id. Accordingly, if some action is argued to be sufficient to constitute publication, that action must be evaluated in light of the purpose publication seeks to achieve, i.e., was the public provided with sufficient notice of the law that is being enacted or amended.

Posting a link to a website, particularly given that the established method of notice has been publication in a specific newspaper, is not likely to give "sufficient notice to the general public that the legislature has enacted a new law."

Sen. Fitzgerald asked the LRB to "publish" the anti-union law in this letter. According to the statutes, this means that the LRB should prep the law for official publication by assembling the bill, copying or printing, which is different from constitutional publication. So, Miller posted a link to a website, stating that he was simply posting the link as a "ministerial act that forwards it to the Secretary of State," because the "secretary of state has to publish it in the (official state) newspaper for it to become effective."

This process is not new, and in fact, the legislative reference bureau stated that its posting of a link to the law did not cause the law to take effect. The LRB also writes a Wisconsin Blue Book pursuant to a statutory directive to "compile, index, prepare and deliver to the department biennially copy for a book to be denominated "Wisconsin Blue Book." This Blue Book contains the "biographies and pictures of state officers, senators and representatives to the assembly and officers of each house, information pertaining to the organization of Wisconsin state government, and statistical and other information of the same general character as that heretofore published, but so selected and condensed as will limit the number of pages to 1,000 or less."

While the LRB is not a court interpreting law, this Blue Book has also explained the legislative process, and it has been accorded certain recognition and weight by the courts that both cite the Blue Book and have taken judicial notice of facts contained in the Blue Book.

The 2009-2010 Blue Book also says publication lies with the Secretary of State:

The secretary of state must publish the act’s number, title, and original bill number within 10 working days after the date of enactment in the newspaper designated as the official state paper for publication of legal notices (currently the Wisconsin State Journal). The notice contains the date of enactment and date of publication and states the act is available for public distribution. The act takes effect the day after its assigned publication date, unless another effective date is specified in the law itself.

Despite all this, Senate Majority Leader Scott Fitzgerald (R-Juneau) clings to his claim that the anti-union measure is now a published law on the theory that as long as the law is posted, says the magic words of "published" and there's a specific date, then it is "very hard to argue this was not the law." Besides, says Fitzgerald, if the DA did not want the LRB to publish, then the DA should have made sure that they were part of the restraining order.

Gov. Walker's administration is similarly clinging to this claim contrary to the law:

Walker's top cabinet official, Administration Secretary Mike Huebsch, gave only a brief statement reacting to Friday's news. "Today the administration was notified that the LRB published the budget-repair bill as required by law," he said. "The administration will carry out the law as required."

Today, State stops collecting union dues, starts charging more for health care because Walker "administration attorneys have determined the law is now in effect." However, they refuse to provide a legal memo or state who provided this legal advice.

Attorney General Van Hollen argues that "since La Follette had specified a date for publication and LRB had followed through on that date, the court's temporary halt on La Follette publishing no longer had any impact." However, La Follette rescinded that date, he has the authority of designation, and the LRB simply does the copying and printing.

Last Friday, I updated my diary with press release I had received from the DA Ozanne's office with the headline of "LEGISLATIVE REFERENCE BUREAU’S ACTIONS ARE OF NO LEGAL SIGNIFICANCE". He looks forward to resolving this issue tomorrow before Judge Sumi at the previously scheduled hearing on this TRO:

I believe that, pursuant to Judge Sumi’s order, the status quo is preserved. This case, including the legal significance of today’s actions, should be resolved in a court of law. I look forward to presenting our case on behalf of the People of the State of Wisconsin Tuesday morning, March 29, 2011, at 8:30 a.m.

It should be an interesting hearing, particularly because Judge Sumi stated in her TRO decision that it is the Secretary of State who has the authority to publish the law, and so she enjoined him from publication but she also enjoined the "further implementation" of the anti-union law:

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.

UPDATE #1 WITH DISTRICT ATTORNEY'S MOTION:

The DA filed a motion that his office just emailed me. It is a Motion for Temporary Injunction, Declaration and Other Equitable Relief.

The DA is asking that the Court tomorrow issue the following orders:

1. A temporary injunction to enjoin Secretary of State Douglas La Follette from "taking any steps toward publishing" the anti-union law.

2. A declaration that inserting the date "March 25, 2011, as the date of publication" and the website link or electronic posting of the anti-union law on Friday by the LRB does not constitute publication within the meaning of the Wisconsin Constitution and Sections 35.095(3)(b) and 991.11. (Both statutes cited and discussed in my diary, but they set out the role of Secretary of State to designate date and publication.)

3. A declaration that the existing TRO is not moot and has not been abrogated by the LRB posting a link to the anti-union law.

4. A declaration that the LRB "was and is subject to the terms" of the existing TRO, that its actions of inserting the date and electronically posting the ant-union law on its website were "contrary to the terms of the Court's" TRO and that these acts are not sufficient as a matter of law to constitution publication.

[Note: This could stem from the broad language in TRO regarding "enjoin further implementation" as I noted.]

5. A declaration that the anti-union law is not the law in the state of Wisconsin.

6. A declaration that the existing TRO remains in "full force and effect until this Court determines otherwise."

7. An order that voids the acts taken by the LRB on March 25 and requires the LRB to remove the anti-union law from its website.

I will read his arguments and be back with another update.

UPDATE #2 WITH DISTRICT ATTORNEY'S ARGUMENTS:

1. The LRB posting of the anti-union law has "no legal significance."

The DA says that the law provides roles for both Secretary of State and LRB in the publication process. The "Secretary of State must designate the date of publication and the LRB must carry out that designation by publishing." The Secretary of State must also "publish in the official state newspaper."

The Secretary of State is the boss in the publication process. He or she notifies the LRB of the act number, date of enactment and selected date of publication, and then the LRB enters that information on a "camera ready copy" and delivers it to the printer for reproduction. Then the LRB publishes the law, which the DA says is defined as "sending the Act to the Legislative Technical Services Bureau for electronic posting, to the Department of Administration for printing, and returning the Act to the Secretary of State."

The DA then states that however you characterize the action taken by the LRB last Friday when it posted link to its website of the anti-union law, it is clear that "not all of the statutory steps necessary to accomplish the constitutionally required publication" of the law were taken. That is, electronic posting (website posting) is only one of a series of steps necessary for publication. This is consistent with the opinion of the LRB in my diary. The DA continues that electronic posting without the other steps, including involvement by the Secretary of State and publication of notice in the official state newspaper render the posting at website meaningless and it "has no legal effect."

be back with argument #2 next

UPDATE #3 WITH DISTRICT ATTORNEY'S ARGUMENTS:

DA argues the LRB was "bound by this Court's temporary restraining order."

The DA quotes a case that says that "there are some circumstances under which nonparties who have actual notice of the injunction have been held in contempt for violating it whether they are named in the decree or not." The DA continues that to find that LRB was bound by the existing TRO, the court must find:

1. LRB had actual notice of the order and

2. LRB is "identified with the Secretary of State, a party bound to the order, as an entity in interest, in privity with the Secretary of State, represented by the Secretary of State, in active concert with the Secretary of State, participating with the Secretary of State, or subject to the Secretary of State's control."

Actual notice of the TRO is easy. The Secretary of State sent a letter to the LRB on March 18th to inform it of the TRO. The link posted by the LRB on Friday to the anti-union law also referenced the TRO order.

The DA says LRB privity with Secretary of State is also established because the LRB can not publish before or after the SOS's designated date but must wait for the designated date.

UPDATE #4 WITH DISTRICT ATTORNEY'S ARGUMENTS:

DA argues "equity empowers this Court to overturn LRB's actions."

DA wants court to hold that "actions of LRB, which is in privity with the Secretary of State, are null and void as contrary to the terms of the Court's" TRO in order to return the parties to the status they occupied when the court issued the TRO.

Note: As Judge Sumi stated in the TRO, it was designed to maintain the status quo.

UPDATE #5 WITH DISTRICT ATTORNEY'S ARGUMENTS:

DA now focuses on the substantive issues: Argues that this Court has jurisdiction to determine whether the legislature complied with the requirements of the open meetings law because those requirements are derived from the Wisconsin Constitution.

The DA argues that the open meetings law implements the constitutional mandates of openness and transparency in government. The legislature bound itself to "comply to the fullest extent" by enacting a provision of this law stating this. The legislature also enacted another statutory provision stating that the open meetings law shall apply to all meetings of the senate, assembly, and their committees and subcommittees except under limited circumstances. The DA cites a state Supreme Court case holding that a court has "jurisdiction to review the Legislature's compliance with so-called procedural rules in order to determine whether the Legislature has complied with 'the relevant constitutional mandates.'"

The DA next argues that the open meetings law is an "express legislative grant of authority to void legislation produced in violation with that law."

The rest of the brief is about the substantive arguments that have been generally covered in earlier diaries.