March 25, 2011

Wisconsin collective bargaining law is published despite the court order barring Secretary of State Doug La Follette from publishing it.

So... a loophole? It got published by someone other than La Follette?!
The governor and Senate Majority Leader Scott Fitzgerald, R-Juneau, said flatly Friday that the law will take effect on Saturday. But Reference Bureau Director Steve Miller said his department's publication of the act was only administrative. He said La Follette still needs to publish the act in the Wisconsin State Journal...

"Every attorney I have consulted said this will now be law," said Fitzgerald, who said he was aware this was going to happen. "It wasn't a secret. I think they left the door open for this."
The struggle continues, and I'm sure the Wisconsin people are exasperated... but who with?

70 comments:

shoutingthomas said...

If you're a Republican, you're exasperated with the Democrats.

If you're a Democrat, you're exasperated with the Republicans.

ambisinistral said...

As a Floridian I've got to hand it to you -- you guys are playing a mean game of hardball up there.

garage mahal said...

So....? Whatyathink?

ConstitutionalConservative said...

Glad that you saw this, I posted another article link in the comments of a prior post but I think the spam filter ate it up. Try again: Collective bargaining bill published despite restraining order

More text, more text....

shoutingthomas said...

At the worst, the state assembly will be required to vote on the law again, and this time the Fleebaggers will be present...

Unless they plan to run away again.

Because that's what democracy looks like.

Simon said...

So... The stay has been lifted? If so, I missed it; if not, this is problematic. I suspect that the stay was misbegotten, but seems a dangerous thing to countenance any governor saying "Judge X has made their decision, now let them enforce it."

And yes, the Obama administration does the same thing, as dozens of comments will surely point out, but so what? That indicts the Obama administration rather than defending Walker.

G. said...

>>"Every attorney I have consulted said this will now be law," said Fitzgerald, who said he was aware this was going to happen.<<

I have no doubt at all the attorneys he consulted gave him that opinion. The same attorneys told him he had the authority to order state law enforcement officers to arrest the 14 absentee senators without probable cause. He's relying on the children advising the Governor.

Stubborn, stiffnecked and stupid is no way to go through life, Senator. Hard lessons await you.

RattlerGator said...

Damn good one, shoutingthomas @8:17.

Lem said...

Could the restraining order have been drafted with enough ambiguity allowing Walker to proceed in order to create an impression that Walker is violating a court order.. thereby inciting the Wisconsin Supremes to declare the law unconstitutional?

Yes.. the courts in Wisconsin appear to be that partisan.

Free Lunch said...

The head of the LRB said that his publication (at the urging of Fitzgerald) of the bill will not mean anything until the Secretary of State has it published. Fitz claims that it is valid even though the statutes (in Wisc Stat 13 and 14) were not followed.

Steve Austin said...

Ozanne simply blew it. Because normal procedure was for the SOS to publish, everyone figured that was required for a law to be effective. If you read the Statute, it only gives the SOS the ability to pick the date of publication. Nothing else. And then it adds the caveat that whatever date the SOS picks, it can't be more than ten days.

It is interesting that the left will allow a mass murderer to go free based on a technicality like this. But here they are hung by their own petard on technicalities. Fitting.

But even Lester Pines in that article says let it go. Accept publication. Now the lefties can do all their litigation on the substance of the bill.

t-man said...

Walker had nothing to do with this. The bill was published by "the Reference Bureau -- the Legislature's nonpartisan drafting and research agency" under a deadline set before the injunction issued, and the injunction was directed at the Secretary of State, not the Reference Bureau.

It's kind of funny, given that the judge issued the injunction based upon claimed technicalities with the posting of notice, that the judge may have enjoined the wrong party.

edutcher said...

It sounds like the real Obama Doctrine:

If a court says or does something you don't like, ignore it.

Sauce for the goose...

WV "hacula" Chrissy Matthews' and Bob Beckel's Transylvanian cousin.

Coketown said...

This is more tedious than Jarndyce and Jarndyce.

Dad29 said...

Lemmeeseeheah, Herb.

Wisconsin voters installed a heavily-Republican Senate, a heavily-Republican Assembly, and a Republican Governor.

Those democratically-elected representatives proceeded to put a stop to State spending.

A bunch of weevils in wet underpants attempt to negate the entire friggin' election, and you ask about 'exasperation'?

Ignorance is Bliss said...

I'm sure the Wisconsin people are exasperated... but who with?

The Wisconsin people are exasperated with the rest of the country, because we are laughing our asses off at them.

PaulV said...

Judge, Sue Me

WV: flowead

type of flower Meade plants

PaulV said...

Are all the stautes of the great state of Wisconsin that inconsistent?

David said...

Who with?

All of them.

Chuck said...

Man this Wisconsin issue is a hot item.

As Dan Rather might say: "Walker has run through the Wisconsin legislature like a big wheel through a cotton field."

Go forth Gov Walker. You are a hero to untold millions nationwide.

traditionalguy said...

If you are Red Auerbach it is time to light the cigar.

Chuck said...

The Fat Lady has not begun to sing yet but I did see her backstage spritzing her throat.

The Unionistas are clearing the drugstores of Prozac as we type.

RattlerGator said...

I think that judge has played herself as a fool. She issued an injunction against an irrelevant party. The executive branch doesn't control the effective date of laws other than via a veto, correct?

ambisinistral said...

Are all the stautes of the great state of Wisconsin that inconsistent?

PaulV -- no kidding, and add to that the lot of them seem to make up crazy rule interpretations at the drop of a hat. Must be all the beer they drink.

I'm beginning to wonder if a careful reading of the Wisconsin constitution wouldn't outlaw parakeets as exotic animals.

Steve Austin said...

@Chuck--that Dan Rather line was outstanding.

The game is up for the public unions. They can keep wishing the bill wasn't passed and signed into law. It was.

They seem like the Jon Lovitz character from SNL..."Yeah, that's the ticket...the law was never passed....that election last fall never occurred. We'll all pretend that Tom Barrett won...yeah Barrett as Governor and my wife Morgan Fairchild won Lieutenant Governor....this Walker stuff never happened"

m stone said...

Now, as our liberal colleagues bemoan, if only there were a budget crisis that, of course, the bill does not address.

Coketown said...

Maybe the Wisconsin State Journal will enter the fold and refuse to publish the decree? Or are they compelled to publish all laws as part of the deal for being the official state newspaper?

Steve Austin said...

Good point on whether or not the Wis State Journal will enter the fray.

If they don't publish then the legislature can simply designate another paper it would seem (see stats below). I nominate the Althouse blog!

Well, actually I nominate that the publishing from here on out go on the State website. No reason to keep paying any newspapers money for this publishing frivolity anymore. That is a byproduct of a bygone era.

https://docs.legis.wisconsin.gov/statutes/statutes/985/04

Almost Ali said...

Oh, man, now Judge Sumi is really going to be pissed.

Fen said...

Dear Democrats,

Your fleabaggers fled the state to thwart a legal vote representing the will of the people of Wisconsin.

Don't complain with Republicans use extra-legal methods too. You set the precedent, so shut up and deal with the consequences.

foxtrot said...

Here's what the Republicans should do by the end of next week.

1. Ram through the Democrats' bill to prevent future "skip the state" tactics.

2. Once passed #1, re-vote the budget bill.

If the glorious 14 wants to run again, then they can suffer the consequences of their own bill in #1...unless they sue...

I think it would be easier for all humanity to send the fleabaggers into outer space via space probes, and leave them there.

Nomadic100 said...

"but with WHOM"?

Irene said...

Email from Legislative Reference Bureau Staff Attorney Scott Grosz to Representative Barca about publication of the Bill.

Donald Douglas said...
This comment has been removed by the author.
Donald Douglas said...
This comment has been removed by the author.
Donald Douglas said...

One more time: 'Republican Party of Wisconsin Seeks E-Mails From UW-Madison Professor William Cronon'.

Anne said...

Fen said...
Dear Democrats,

Your fleabaggers fled the state to thwart a legal vote representing the will of the people of Wisconsin.

Don't complain with Republicans use extra-legal methods too. You set the precedent, so shut up and deal with the consequences."
Hear hear!
The Democrats need to stop lecturing us on breaking the rules while they are breaking rules.

Anne said...

No blood for oil!!! Get out of Libya now!!!

Anga2010 said...

Tricksy hobbitses. YAY!

Chris said...

The Democrats have legal butterfingers.

Too bad, because we're dealing with "loopholes" (that's the tag).

Another Surprise? How many Legilsative Suprises have there been now . . . three or four?

God Save Wisconsin. OK, maybe God should stay out of politics, first amendment concerns ya know:

The Wisconsin Citizenry Save Wisconsin!

P.S.: How will J. Prosser thank the Governor for the favor? Get
it done before the election, but no matter what its still on Prosser's back.

Cronnon is ever more relevant. Prof. Althouse, thanks for linking to Cronnon's blog (Althouse "The Wisconsin Republican Party . . ." 03/25/11 2:40 pm). You sound like you are pro-academic freedom, but it wasn't left-wingers that have done this: it was the Republicans that we elected. And if you are going to call people "Assholes" then you would do better to name names.

To the substance or your comments: surely UW's Academic Policy doesn't trump Wisconsin's Open Records Law? We must focus on what is really at issue here!
And by Citizenry, I mean the Qualified Electors. Yes, including the Tax Payers. Hell, yeah, 'cause we're going to be living here. Right?

Fen said...

Tricksy hobbitses. YAY!

LOL!

Revenant said...

Chris,

Huh?

- Revenant

SPImmortal said...

Good, copying the left's own tactics is always the best way to expose and defeat them.

Like their run in the early 90's of using frivolous sexual harrasment claims to bring down conservative politicians like Bob Packwood (all the while not laying a glove on guys like Ted Kennedy). Once Clinton was pulled through the sexual harrassment wringer, that sort of shit was stopped cold.

If the democrats go extra legal by running away to prevent a quorum, then use every sort of legal loophole you can to nail them to the wall and thwart them.

In the famous hate speech of a fat rabble rouser, "This is war!"

jbell said...

Ann, please. With whom.

Bart said...

They *should* be exasperated with alleged public 'servants' who for years have used their union to extort far-higher-than-"market-clearing" wages and benefits from the taxpayers of Wisconsin.

The less formally economic way to express that is to say that the unions wish to continue to force ordinary working people to cough up more and more so that the unionised elite can continue to live in the style to which they've become accustomed.

This is not a new problem. I voted with my feet, and left Wisconsin in 1998 specifically because of its union-driven tax regime.

Issob Morocco said...

This is, as Rush Limbaugh says, a moment to fight absurdity with absurdity.

If the Dems had stood there ground legislatively speaking and not fled like cowards when faced with a defeat of something they need, union due dollars filling their campaign coffers.

That absurd event, staged and crafted by outside Wisco forces, was the initial absurdity. That the Republicans are fighting that absurdity with more absurdity is a consequence of the initial action.

If the Dems thought they could temper tantrum the bill to death, they were sadly mistaken. So each subsequent absurdity is met by the other side with their absurd retort.

What will Wisco residents and voters remember? The initial absurdity or the follow ups? That will be the tail of the tape in the special recall elections, if they occur.

LawGirl said...

Wis. Stats. Sec. 991.11 states that "every act ... shall take effect on the day after its date of publication as designated under [Section] 35.095 (3)(b)." Sec. 35.095(3)(b) provides that Sec States needs no "designate" a publication date, but says nothing about actually publishing it.

After the bill was passed by both houses and signed by the Governor, LaFollette designated March 25 as the publication date. This appeared to fulfill his duty under § 35.095(3)(b).

It appears that LaFollette later attempted to revoke this, but I could find no authority for the Secretary to withdraw his designation of a publication date or to instruct the Bureau to violate § 35.095(3)(a), which requires that the Bureau publish every act "within 10 working days after its date of enactment."

So, it does not appear the Secretary of State has authority to actually publish the law, as opposed to his clear authority to designate a publication date, which he did.

Thus, I see no reason to assume this is not now law.

LawGirl said...

*needs to designate.

Steve Austin said...

Rick Esenberg has the same analysis.

http://sharkandshepherd.blogspot.com/2011/03/primer-on-publication-of-collective.html

All the parties trying to stop this, including the staff attorney memo from Scott Grosz with the LRB assumed that the SOS had some super powers to decide whether a law could become effective or not. So they have set up a circular argument that the because they assumed the SOS has these powers, he must have them.

There is zero in the Wis Stats that has been found to date that gives him any of those powers.

This is a typical liberal situation. They assume the government, courts and government officials have all sorts of powers that aren't enumerated by statute.

Ozanne and Sumi were tripping all over themselves to pull this off that they didn't read the plain text of the statutes.

Jay said...

I'm sure the Wisconsin people are exasperated... but who with?

The overpaid leeches who think contributing 6% to their own retirement is a national outrage?

rhhardin said...

who with?

Who is correct. Whom in fact would fall afoul of another mistake.

You can say either "who with" or "with whom" without sounding odd.

The source of the confusion is the fact that "who" is acceptable in both subjective and objective case positions in modern English, except for one interfering fact, called a register error.

Fronting the preposition (with whom) is formal register, and putting it at the end (who with) is not formal register.

Whom in turn is formal register, the case-independent who is not.

So "With who" and "Whom with" both mix registers, which gives them both the odd feeling they produce.

Thurber recommends whom when a note of austerity or dignity is wanted.

Headless Blogger said...

Stop writing of loopholes and tricks. The Legislative Reference Bureau was statutorily obligated to publish the bill on the tenth day after passage. The fact that Ismael Ozanne and Judge Sumi are unable to perform adequate legal research reflects upon them, not on Walker and the WI legislature.

I haven't checked, but based on this high level of legal scholarship I will postulate that both Sumi and Ozanne were granted membership to the WI Bar based on graduating from a WI law school and never passed the bar exam. Even I was able to google the statutes and figure out that laws could be published by state agencies other than SoS LaFollette.

Hilarious.

Freeman Hunt said...

I find it odd that you don't have to pass the bar in Wisconsin if you graduate from a Wisconsin law school.

Wouldn't it be more logical to license anyone who passes the bar, whether he goes to law school or not?

Headless Blogger said...

Freeman Hunt - The current method is logical as a marketing tool for WI law schools and a barrier to entry to the legal profession.

Kim Grimmer said...

Here is my take on why Act 10 is now well and truly in force:

http://madcityexit.blogspot.com/2011/03/whaaassuppp-did-zany-scott-fitzgerald.html

Should have no effect on Judge Sumi moving ahead on Tuesday.

Steve Austin said...

Kim-I read your analysis on why you think the law is in effect. Interesting analysis.

I think your text of Roggensack's opinion from the 2009 case is extremely compelling. Obviously the other side can argue that as dicta, but he certainly seems to be saying that publication in a newspaper of record isn't needed to make a law effective, as long as the public is given some type of notice.

In the case at hand, the general public probably has more notice on this bill/law than any other single act in the last 30-years.

Tomas said...

Prof. Althouse, you're a lawyer.

The judge said: "I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10."

Can you explain how Fitzgerald can now say that the law has taken effect?

geoffb said...

Section 35.095 (3) (a) has had different language in the past.

Up to 1981 it read.

" 35.095 (3) (a) Every law shall be published once in the official state paper within 10 working days after its date of enactment"

Then from 1981 to 1991 it read.

" 35.095 (3) (a) The secretary of state shall publish every act and every portion of an act which is enacted by the legislature over the governor’s veto within 10 working days after its date of enactment."

Then in 1991 it was changed to.

"35.095 (3) (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."

This would seem to me to show that the intent is that the act of “publishing” the law is done by the Legislative Reference Bureau not the Secretary of State after the 1991 change.

Art said...

Tomas,

You can only enjoin those whom are legitimate named parties to a lawsuit who have been given the opportunity to be heard in court. The LRB was not a named defendant and so was not enjoined. The Sec State was enjoined, but his part of the process was completed prior to the injunction. He had no further duties in the publication of the act.

Tomas said...

Art: Interesting, thanks... so this part of the argument has to do with the scope of "Enjoined." How about the rest of what the Judge said: "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." This seems to clearly imply that until the secretary of state publishes the law, it cannot be implemented.

LawGirl said...

Tomas - the judge enjoined THE WRONG PARTY. That's why it has no effect. It's like telling me I can't get a vasectomy (in case my user name doesn't give it away . . . I don't gave the equipment for that). It's simply meaningless.

Tomas said...

OK, that does clarify the argument: that the judge was wrong about the role of the Secretary of State.

But even if the "enjoin" was wrong, and the SoS part was wrong, there's still the part that says: "restrain... the further implementation". Do the technicalities about "enjoin" apply to "restrain" too?

(Sorry, non-lawyer asking questions here.)

Art said...

Here is the actual order of the court: http://danedocs.countyofdane.com/webdocs/pdf/court/order_granting_TRO.pdf

Only the SOS was enjoined. The fact that the DA of Dane Co and a circuit court judge cannot read and understand black letter law on the process of publishing changes to statutes says a lot more about them than it does about anyone else.

Tomas said...

I see --- my quote above was just from what the Judge *said*, not what the Judge *wrote*. The actual order only enjoins the Secretary of State. Thanks for the link.

Tully said...

"I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10."

Restrain and enjoin whom, exactly? Restraining orders must specify the parties who are being restrained by the order. You can't just restrain and enjoin the universe at large. In this case, the remainder of the excerpt specifies whom is being restrained and enjoined, and from what.

ed said...

1. Does anybody else find the idea that either a Secretary of State or a judge have veto power over the Legislature and the Governor and the entire legislative process seem a bit illogical?

2. From a purely simplistic pov: judges interpret laws, not legislation. What kind of havoc could partisan activist judges have if they are able to actively participate in the legislative process?

3. Since judge Sumi has tried to block signed legislation from becoming law ... if this is upheld in some insane way by the Wisconsin Supreme Court, does this mean that any state judge at any time can force the Legislature to either debate legislation imposed by a judge -or- have legislation being actively debated forcibly withdrawn or quashed by a judge?

4. Considering this insane overreach in judicial power by judge Sumi, does this make her ripe for an impeachment?

5. Does God have a sense of humor or what? Bernie Madoff, made off with money. Judge Sumi, will probably get sued.

I'm waiting for another ponzi scheme by a guy named Ripoff. Or maybe Steelem.

Coketown said...

Who is correct. Whom in fact would fall afoul of another mistake.

You can say either "who with" or "with whom" without sounding odd.


So it's only correct in a descriptive linguistic sense. In a prescriptive, curmudgeonly grammarian sense, 'who' is used for sentence objects and 'whom' for sentence subjects. In that sense, 'whom' is correct. This perhaps explains why at my school the English department was on the other side of the quad from the linguistics department.

geoffb said...

Worse than illogical since the "veto" power being used by the Sec. of State and/or the judge is of statutory origin and is more far reaching than the veto power given to the Governor by the constitution which may be overturned by the legislature. This turns the basis of the law on it's head.

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