Wisconsin Defies Court Order, Publishes Collective Bargaining Law
When a Wisconsin trial court judge struck down Wisconsin’s new collective bargaining law, she issued an injunction forbidding the state from both enforcing the law, and from publishing it as part of the official Code of Wisconsin. Despite the fact that the order is still in effect, the state has gone ahead and published the law:
In a stunning twist, Gov. Scott Walker’s legislation limiting collective bargaining for public workers was published Friday despite a judge’s hold on the measure, prompting a dispute over whether it takes effect Saturday.
The measure was published to the Legislature’s website with a footnote that acknowledges the restraining order by a Dane County judge. But the posting says state law “requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment.”
The measure sparked protests at the Capitol and lawsuits by opponents because it would eliminate the ability of most public workers to bargain over anything but wages.
The restraining order was issued against Democratic Secretary of State Doug La Follette. But the bill was published by the reference bureau, which was not named in the restraining order.
Laws normally take effect a day after they are published, and a top GOP lawmaker said that meant it will become law Saturday. But nonpartisan legislative officials from two agencies, including the one who published the bill, disagreed.
“I think this is a ministerial act that forwards it to the secretary of state,” said Stephen Miller, director of the Legislative Reference Bureau. “I don’t think this act makes it become effective. My understanding is that the secretary of state has to publish it in the (official state) newspaper for it to become effective.”
Walker signed the bill March 11. Under state law, it must be published within 10 working days, which was Friday.
It hasn’t been printed in the Wisconsin State Journal, the official state newspaper, as other laws are. Late Friday, State Journal publisher Bill Johnston said in an e-mail that the notice for the law had been scheduled to run but had been canceled. He did not elaborate.
La Follette urged caution Friday, saying the measure has not been published yet by his office. He said he believes the law cannot go into effect until he directs the State Journal to publish it, which he has not done.
While I’m not familiar with Wisconsin law, I can’t imagine that the law could have any legal force and effect as long as this injunction is in place. Technically, it may not have been a violation for the reference bureau to publish the law since they weren’t parties to the injunction, but it most assuredly violates the spirit of the judge’s ruling. I would expect the parties to be back in court on Monday over this one.
And for those who may have wondered (I did), Secretary of State LaFollette is indeed distantly related to the famous Progressive Republican Robert LaFollette. His great-grandfather and “Fightin’ Bob’s” father were brothers.
No. Not to have published it would have violated state law, as noted in your pullquote:
The nonpartisan reference bureau does not have the option of deciding for itself whether or not it has to follow the law. The judge could have named them in the injunction, but she did not. Whatever the reason for that (oversight, ignorance, conscious intent), they weren’t enjoined so they had to publish as required by law. The courts can work it out.
Whatever the reason for that (oversight, ignorance, conscious intent)
She didn’t name the LRB because – as the head of the LRB himself says – it doesn’t have the power to “publish” in the same sense as the secretary of state, i.e., give official public notice. The LRB’s duty is more akin to “print” or “document.”
IOW, this flap is over the meaning and effect of the word “publish” in two different Wisconsin state statutes. Certainly not something most of us are qualified to argue about; that’s for the Wisconsin courts (as I said). My point is that LRB’s ministerial act, taken as required by black letter law, quite clearly doesn’t constitute ‘defying’ the court’s order.
If it were just a matter of the LRB needing to publish according to the law but everyone admitted that publishing there had no power of law behind it this would be a non-story. But as it is some republicans (notably the senate majority leader) are claiming that you don;t have to have the SoS publish a law, that doing so via the LRB itself accomplishes the same effect. Which means when he entreated the LRB to publish he was doing so in direct violation of the judge’s order which in addition to specifically enjoining the SoS more generally enjoined any action that moved the legislation closer to being law.
That’s what makes this a story. That’s what makes this a pretty clear power grab by GOP legislature which is simultaneously denying the courts and the executive power (although in this case the executive won;t care because they’re on the same side as far as the issue). Hopefully the senate majority leader gets the stern rebuke by the courts that he deserves.
“My point is that LRB’s ministerial act, taken as required by black letter law, quite clearly doesn’t constitute ‘defying’ the court’s order.”
Perhaps not the letter of the injunction, but certainly it’s spirit, especially when you have the Republican majority leader saying things like, “It’s published. It’s law. That’s what I contend.”
http://www.jsonline.com/news/statepolitics/118677754.html
Desperation – a stinky cologne.
If this was not a political case, just a regular civil case and one of the parties figured a way to get around an injunction, the judge would absolutely destroy them. If the attorney was in on the plan, he would have the judge all over him in every other case he had before him. For the rest of us there would be consequences to something like this.
The LRB is not responsible for that. Its action was required by law since the judge didn’t include it in her injunction. Whatever the reason, not to have acted as it did would have been defying the plain words of Wisconsin law. How other people choose to react after the fact, and whether or not their take is legitimate under the body of state law, is irrelevant.
The LRB cannot defy the “spirit” of an injunction that doesn’t apply to it by obeying the law that does. That is the sum total of my point.
There is precedent in a previous ruling by the Wisconsin Supreme Court. To paraphrase that ruling: “If a court were permitted to block publication of legislation, it would be able to determine which laws are enacted and which laws are not. That it can not do. The constitution grants the legislature sole power to enact laws.”
In light of that precedent, it is clear that that the Wisconsin Constitution prohibits a court (judicial branch) from blocking publication of any legislation (legislative branch). To allow such intervention from the courts would violate the constitutionally mandated separation of powers.
That does not restrict the courts’ power under the constitution to rule on the issue after the legislation has been enacted. It may be that the legislation’s validity will ultimately be decided in the courts; but it seems pretty clear that the court can not intervene in the legislative process, itself.