June 15, 2011

Does Wisconsin Secretary of State Doug La Follette have the power to delay publication of the collective-bargaining law until June 28th?

"La Follette said he had consulted with his own attorney as well as his own staff to make sure he followed proper procedure. The problem, La Follette said, is there is no procedure for what happened on Tuesday when the Supreme Court, in a 4-3 decision, reinstated the collective-bargaining law that was passed in the Legislature."

Incredible. How is it possible for this man to have the power to prevent a law from going into effect?

I thought the law was published back on March 25th:
The drama over Gov. Scott Walker's controversial measure limiting public sector collective bargaining took a sharp turn Friday [March 25th] when the Legislative Reference Bureau published the law — normally the last step before legislation takes effect....

A restraining order prevented Secretary of State Doug La Follette from publishing the act. But the state constitution says only that laws must be published before they can take effect; it does not specify by whom.
Is it published already or not? Let's look at the new state supreme court opinion:
This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature.  It is important for all courts to remember that Article IV, Section 1 of the Wisconsin Constitution provides:  “The legislative power shall be vested in a senate and assembly.”  Article IV, Section 17 of the Wisconsin Constitution provides in relevant part:  “(2) . . . No law shall be in force until published.  (3) The legislature shall provide by law for the speedy publication of all laws.”
How can La Follette, a member of the executive branch, control the power that belongs to the legislature? According to Wisconsin Supreme Court, the way the legislature has provided for publication is — in § 14.38(10)(c) — to direct the Secretary of State to publish it. So La Follette had a statutory duty back in March. But the trial judge — Sumi — ordered La Follette not to publish the law. Now, Supreme Court's opinion declares the judge's order "void ab initio." That is, the order was always void. But knowing that La Follette wasn't ever bound doesn't cause something that didn't happen to have happened in the past. And indeed, the court's opinion looks to the future, saying "there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c)."

But there's another statutory provision that the main opinion fails to discuss, and it does seem to be an impediment. Justice Prosser, who's part of the majority, wrote a separate opinion, which brings up § 35.095(3). As applied in this case, it presents a puzzling conflict:
(a) The legislative reference bureau shall publish every act . . . within 10 working days after its date of enactment.

(b)  The secretary of state shall designate a date of publication for each act . . . .  The date of publication may not be more than 10 working days after the date of enactment.
The Legislative Reference Bureau complied with the requirements of (a) back in March, and, as noted, La Follette, because of Judge Sumi's order, never fulfilled his obligation under (b). The main opinion said "there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38(10)(c)," but that obligation is detailed in § 35.095(3)(b) in terms that are now impossible to fulfill. Maybe that's why they didn't want to talk about it! It's a problem that should never have arisen, but Judge Sumi's (invalid) order made it happen. Now what?

Why didn't the court just decide that the publication by the Legislative Reference Bureau was effective? When is the effective date of the law? It should be March 26th. How can it be June 28th if Sumi's order was void ab initio and it's too late for La Follette to publish "10 working days after the date of enactment"? I'm guessing that the court thought that as a matter of separation of powers, it had no business doing anything but getting out of the way of the legislature.

112 comments:

edutcher said...

Once again, the words of Senator Blutarsk..., Feingold ring in our ears.

Hagar said...

The Wisconsin state government does begin to look like something in a silent film movie comedy.

Richard said...

It's situations and outcomes like this that make people hate the law in general. The law rarely means what it means, and there is always yet another fight to be fought after the first fight, or the second fight, or ... you get the idea. Lawyers think this is clever. It's not. It's corrupting.

t-man said...

I thought LaFollette had designated a date for publication, and that the LRB published on that date, March 25. LaFollette tried to "rescind" his designated publication date, but there is no provision allowing him to do that.

As I read the statute, the newspaper publication rule is separate from the LRB publication rule, and it is LRB publication which controls the effective date.

I thought that was what Prosser was getting at in his concurrence.

Tyrone Slothrop said...

I've been staying out of this. I don't live in Wisconsin and I don't know anything about the law. But this is the most egregious case of contempt for the will of the majority I have ever seen. How can these people even claim the mantle of citizenship? Everything they do says that they think their interests trump what the majority of voters have repeatedly said via the ballot. I want garage and all the other dimwit liberals who comment here to make some viable case for how this bullshit is falls within the social contract, even a little bit.

rhhardin said...

The legislature intended that the SoS publish the law, so it's published.

Sumi intended that the Sos not publish it, but she doesn't have the power to intend.

That intention is a fiction doesn't matter.

Tyrone Slothrop said...

Apparently I don't know what the proper usage of "is" is.

MadisonMan said...

The Office of the Secy of State is a worthless office. And it doesn't matter who holds the office.

But I don't see what the hurry is -- now, or the 28th? Will governing bodies need time to get ready for the new law? I don't know.

The outrage over this seems manufactured.

Scott M said...

The outrage over this seems manufactured.

Ever have a broken back? Every little movement or jostle is extremely painful. Once the last straw breaks the camel's back, this is what you get.

chickenlittle said...

He's related to, but not a descendant of the famous "Fighting Bob" La Follette. I didn't realize that. I doubt many in Wisconsin do. They're funny that way.

SunnyJ said...

No where, in anthing Althouse has quoted here,does it refer to the SOS's "power to delay" publication. SC's ruling voids everything that went down between pulished by LRB and Suni's reign of narcissim. Pawn is returned to LRB date...at this point it states SOS has obligation to publish or it is automatically published...which was done by LRB. The end. ...and the lefty piggy's cried wee, wee, wee all the way home.

Ken said...

Can he designate a date back in March? The act says he may designate the publication date; that suggests it may be different from the physical date. It must be a date within 10 days after the passage. Why not 25 March as the designated date?

The Drill SGT said...

I thought this part was particularly disingenuous:

"This is unpredecented," La Follette said. "We had an act that was not published because a court ordered me not to and then another court said I should."

He throws up his hands...

That implies that the 2 courts were equal, rather than the Supreme Court of your State telling the lower court judge that she was out of line and her bullshit is null and void.

sorepaw said...
This comment has been removed by the author.
t-man said...

On March 31 after the law was published by the LRB "Judge Sumi issued an amended order to the effect that 2011 Wisconsin Act 10 had not been published and is not in effect."

But the Supreme Court voided all of Judge Sumi's orders in this case ab initio meaning as if they never happened. Therefore, her order that the law was not published is gone as well. Ergo, the law was published, as required by statute, and went into effect on March 26.

All that LaFollette has to do is fulfill the newspaper publication rule.

Steve Austin said...

There are two huge legal questions here.

a) Did the law take effect back in March, which would invalidate a number of union contracts signed since then? Court says "no" but by vacating Sumi, logic here means "yes" it did take effect back in March.

b) LaFollette here is trying to give the green light to the last few unions that haven't renewed that they have another 13 days to do something.

The GOP legislature needs to pass a bill in the next week that outlines what "publication" is and means and take away the SOS ability to play these games in the future.

Then run KGB or some conservative and popular ex-Packer against LaFollette to take him down in the next election.

Bushman of the Kohlrabi said...

But I don't see what the hurry is

The purpose of the delay is to push through more union contracts. Unions across the state have been frantically trying to ink deals before the bill takes effect.

sorepaw said...
This comment has been removed by the author.
MadisonMan said...

He's related to, but not a descendant of the famous "Fighting Bob" La Follette. I didn't realize that. I doubt many in Wisconsin do.

Maybe I miscomprehend what you read. There's not a person alive in WI who doesn't know he's somehow related to Bob. His last name is the only reason he's in office.

Phil 3:14 said...

We're now in the realm of the absurd. I can only assume this is for consumption by the base for the next election cycle (i.e. "I fought the good fight!")

I assume Sec of State LaFollette's last resort is to exclaim:

You didn't say "mother may I"

MadisonMan said...

Unions across the state have been frantically trying to ink deals before the bill takes effect.

They're still trying to? They've had months to get the work done.

You make it sound like Union Bureaucracy is inefficient of something.

If this delay is so that more Unions can push through agreements (I can't think why Management would agree to that right now, but there are probably places like Madison where Mgmt and Unions are of one mind), then I agree there's no reason to slow things down.

MadTownGuy said...

In related news, the Secretary of State Project website is down. Here's a very basic article about the organization, another with a contrary view and yet another supporting the project (and Doug LaFollette).

James said...

b) LaFollette here is trying to give the green light to the last few unions that haven't renewed that they have another 13 days to do something.

That's the main point of all these delaying tactics. Here in south-east Wisconsin quite a number of public employee and teacher union locals are trying to push through last-minute agreements before the law takes effect.

There was a huge furor in Menonomee Falls recently where the school board approved a new contract with the teacher union without public disclosure. Currently there are accusations that the school board violated both the Open Records and Open Meetings requirements.

SteveR said...

The good thing about the laws of nature is despite the actions of man, they are not changed. The time passed, the decision doesn't require the clock to go back and start over.

The only reason to wait until 28 June is to look for another way to stop the law from being in effect.

The Drill SGT said...

Bushman of the Kohlrabi said...
The purpose of the delay is to push through more union contracts. Unions across the state have been frantically trying to ink deals before the bill takes effect.


That the SoS and the Unions are taking this appraoch makes sense.

Were this a publicly traded business instead of school districts, there would be shareholder suits and criminal charges for any School Board memebers (firm Boards) that violated their Fiduciary duties in this fashion by colluding to give away money to the unions.

Any School Board that signs before the law goes into place should be recalled. That's not my politics speaking, it's just plain criminal to give up that leverage in a bargaining session...

BarryD said...

Reminds me of a joking cheer we used to say at the beginning of intramural sports games:

If you can't win,
CHEAT!
If you get caught,
LIE!

Gooooo, TEAM!

Belial said...

When is the effective date of the law? It should be March 26th. How can it be June 28th if Sumi's order was void ab initio and it's too late for La Follette to publish "10 working days after the date of enactment"?

Toll the 10 day period for the time elapsed from Judge Sumi's TRO to the Supreme Court opinion.

chickenlittle said...

MadisonMan wrote: His last name is the only reason he's in office.

You didn't misread since you made my point. I was just putting a finer spin on the genealogy.

garage mahal said...

The Koch Brothers and several very important corporations paid damn good money for Prosser's vote, and people risked their necks to get the votes needed in Waukesha Cty. Why do they have to wait two weeks? Ridiculous!

Carol_Herman said...

Let's see.

Politics is about headlines.

La Follette and his crew have the 14-legislators that went to Illinois. (And, Prosser put this into his concurrence.)

You also have weiner's underpants.

And, of course. Obama. Who may be channeling Hoover now?

Well Hoover got his national reputation back in 1927, when the Mississippi had one of its great floods.

For a "diversion" ... Obama is trying his damn-dest to restart Mideast peace talks.

You know, I just shrug at vain attempts. And, no. Just because weiner used the word "certitude" ... I don't think the American people stopped paying attention.

June 28th is just around the corner.

And, as soon as the morons who belong to Wisconsin's union ... figure this out ... There's more money for them in their paychecks.

What will the unions do? Oh, they'll swear the "honor system works." And, they'll try to sell bonds.

Why? Because there are suckers born every minute.

And, because Wisconsin sits poised to flip from being a solid blue state ... to becoming ... at least purple.

Russ Feingold and Anthony Weiner are more than welcome to address large crowds! Where's the downside?

Up ahead? Either the union help lose money to their unions, as the state is forced to keep on deducting money from their paychecks.

Or, as I said, we head into the "honor system."

And, yes. The RECALLS! Is LaFollette paying any attention to that? Does he think the democraps have their wins in a bag?

Who has the bag concession?

Scott M said...

Ah...tears taste like skittles...

Karnival said...

The people of Wisconsin are getting smaller every day.

chickenlittle said...

In California, the Secretary of State has purview of state-wide elections. Does La Follette have that responsibility in Wisconsin?

Bruce Hayden said...

The Koch Brothers and several very important corporations paid damn good money for Prosser's vote, and people risked their necks to get the votes needed in Waukesha Cty. Why do they have to wait two weeks? Ridiculous!

And there was plenty of money, much of it coming in from out of state, as well as union workers being bussed in, on the other side.

Get over the Koch brothers. They probably have quite a bit less impact on politics than, for example, George Soros, and I don't hear you complaining about him.

Tyrone Slothrop said...

The Koch brothers have NOTHING to do with this, garage. Nothing. I asked you to make a case for the moral rightness of this usurpation of the will of the people of Wisconsin. What have you got? Bullshit. Bullshit, bullshit, bullshit. You have absolutely no moral or intellectual integrity. If you had a single drop of either you would abandon commenting here forever.

SunnyJ said...

Garage...your point is that damn bad money was paid on the left and didn't get the job done for you? The public unions have (used to) a non stop spigot of good money funneled to them. The Koch boys actually have to produce something, product or service, to get theirs. Oh, I get it! You're right. The Koch's do have "damn good" earned money, and the unions have bad money....it was good when I earned it, but went bad when they were allowed to steal it from me on a monthly basis. Free at last, free at last, thank God almighty I'm free at last.

Original Mike said...

It's only a couple of weeks. We have more important things to be outraged about.

chickenlittle said...

Karnival said...
The people of Wisconsin are getting smaller every day.

Yet they look larger under the lens!

Original Mike said...

"The Koch Brothers blah, blah, blah" :eyesroll:

MadisonMan said...

@chicklit, subtlety is wasted on me :)

Michael Haz said...

The Koch Brothers and several very important corporations paid damn good money for Prosser's vote, and people risked their necks to get the votes needed in Waukesha Cty. Why do they have to wait two weeks? Ridiculous!

Couldn't have said it better myself. Frankly, after the billions I gave Scott Walker, David Prosser and the entire Fitzgerld family, I expected better service for my money. After all, people in DC jump when George Soros farts, and I expect the same level of clout on the state level.

My fellow corrupt billionaires all agree.

If the hippies ever learn to actually study math and science and accounting and finance and stuff so they earn some big money they could buy better politicians than the sorry low-rent ones they now have.

Sofa King said...


If this delay is so that more Unions can push through agreements (I can't think why Management would agree to that right now, but there are probably places like Madison where Mgmt and Unions are of one mind), then I agree there's no reason to slow things down.

I'm a little surprised you didn't know this already. I don't suppose you follow "outstate" news.

But yes, that is obviously the reason. It was the obvious reason the senators left the state, it was the obvious reason that LaFollette has used every possible delay tactic, and Sumi's decisison was so legally ridiculous I think it was the obvious reason it took her so long to write such an indefensible decision (and the reason she did not even do take most clearly required step of waiting for the bill to become a law.) I don't want to throw around the "c" word, but let's just say that I very strongly believe there has been a "coordinated effort" to delay the law from *taking effect* as long as possible, purely so that as many contracts can be "arranged" (I won't use the word "negotiated" when both parties are on the same side) as possible.

Time's up.

Sofa King said...

"La Follette says this Supreme Court's decision undermines the lower court's ruling."

GEE, YOU THINK?

Holy shit, what an idiot. That's like saying that Little Boy "undermined" the city of Hiroshima.

Old Dad said...

Meadhouse launches a classic NewMedia counterattack against the old left guard.

SOS is now on defense. Who comes to the rescue? Garage--LOL. Koch brothers, boo, Teabaggers, corporations, scary shit like that. Garage furiously waves hands, stamps his little foot and shouts "Rumple Stiltskin!"

Meanwhile, SOS stews and frets--don't they know my last name?

chickenlittle said...

Michael_Haz wrote My fellow corrupt billionaires all agree.

I only gave because I wanted to see garage mahal suffer. Overall, I'm pleased.

andinista said...

So a flunky, a functionary, a secretary!, for crying out loud, believes that because they have been elected statewide, they are part of the partisan decision-making process, and if they disagree with the just-passed bill, they should do everything in their enumerated powers to prevent the bill from becoming law, or failing that, minimize its effect on the good citizens of Wisconsin.

Hate to break it to ya pal, your job as chief flunky is to make sure that the machinery of government works as smooth and effortlessly and reliably as possible. You have no role in deciding for what is this machinery to be used for. At this point, you're being an itwa (in the way), which is outside your job description. If your name is in the papers, you are willfully failing at your job, so be a man, do the honorable thing and resign.

steveegg said...

To expand on t-man's argument:

The question probably hinges on whether the voiding ab initio of the March 18 TRO also eliminates all legal basis for the attempt by La Follette to rescind the original March 25 date of publication designated on March 14.

As the judicial justification was the sole justification given by La Follette for the attempted rescission, § 14.38(10)(a) limits to one business day after receipt of an Act the time the Secretary of State has to designate a date (in this case, that ended on March 14), and that TRO was voided ab initio, it could be well-argued that since there was no legal basis for the attempted rescission of the date of publication, it stood as March 25 Under that line of reasoning, despite the "best" efforts of La Follette on March 18 to rescind the publication date of March 25, he did comply with § 35.095(3)(b) because he could not change the publication date when he attempted to do so.

Of course, I'm not a lawyer, and this argument wasn't carried out to any definitive conclusion by the Court.

garage mahal said...

My fellow corrupt billionaires all agree

Will you be giving to fake Democrats in the upcoming recall primaries, as well?

Tom Royce said...

What is the economic benefit to the unions by postponing the publication? That is the key question.

Look at the Delta Air Lines Flight Attendant union vote. The unions lost yet the Labor relations board refuses to rule on the appeal so the Northwest flight attendants are forced to keep paying union dues and not getting the raise they deserve when the vote is ratified.

Browndog said...

If I may be so bold as to help guide La Follette with his coarse of action.

Since the Law was deemed to have been legally published back in March, and it's now June, publish it immediately

Or, be a good little leftists. Start another round of legal battles on the grounds the law was to be published within 10 days of passage. Since the 10 day window has long passed, there is no legal mechanism to publish outside of that window.

sorepaw said...
This comment has been removed by the author.
paul a'barge said...

DEMONcRATs are fascists

andinista said...

garage mahal says "The Koch brothers ..."

I appreciate the multi-level satire appetizer. But don't leave your readers starving. Have the courage to tell us what you really think for the main course. Pull that off, and I reckon people'll stop cussin' at you.

SunnyJ said...

Faux candidates are an invention of the Dems to hurt Tea Party candidates. Garage objects to equal opportunity to faux. The left always loves their own tactics until applied to them. Loves spread the wealth, until it is theirs being spread others. Loves Alinsky rules if not applied to them. Loves to own democracy but does not want to share it with anyone else. Garage is correct, the Dem candidates are faux, just like their progressive BS.

Brad said...

@ garage ..

Fake democrats, fake socialists, fake communists .... we'll give to all of them.

You can't stand the other side playing for keeps too, can you?

Mike K said...

It's situations and outcomes like this that make people hate the law in general. The law rarely means what it means, and there is always yet another fight to be fought after the first fight, or the second fight, or ... you get the idea. Lawyers think this is clever. It's not. It's corrupting.

It's not the law, although this case has exposed a few omissions. It is the rent seeking of a man who, because his last name is the same as a progressive politician of long ago, thinks that he can pet the unions one last time and get some thug support in the next election.

The last name business is an odd story. A famous anesthesiologist, who was raised in Kansas, changed his last name to one very well known in Boston before he went to the Massachusetts General Hospital for his training. It worked and he became the chief of anesthesia. Very few people know that story although it is a couple of histories.

Last names have helped many scoundrels. Changing your last name is a new twist.

Mike K said...

That should be "in" a few histories, of course.

Leave Garage alone. He needs to have an answer and the latest bulletin from the DNC hasn't arrived yet.

Carol_Herman said...

Doug La Follette has Anthony Weiner envy.

So, I'm not surprised.

Man likes to see his name in the national headlines.

Like Nixon said. It doesn't matter "what you say about me, as long as you spell my name correctly."

Weird men most think alike?

Carol_Herman said...

Weiner should change his name to Johnson.

And, his first name to Frank.

His middle name to Lee.

And, he should borrow kloppenhoppen's scarves to tie about his neck. Though he does wear nice neckties.

I see a role for him in Barney's window.

garage mahal said...

Faux candidates are an invention of the Dems to hurt Tea Party candidates.

Uh huh. Except in this case it's the Republicans doing it, and the Democrats opting not to. Maybe it's Republicans realizing they're jamming down a wish list of right wing think tank legislation on an unwilling population.

Scott M said...

Maybe it's Republicans realizing they're jamming down a wish list of right wing think tank legislation on an unwilling population.

Maybe it's the Republicans realizing that they have to fight bullshit tactics fire with bullshit tactics fire or they'll realize nothing but being pushed out. You guys wrote the playbook on these guerrilla tactics. Rue the day...

Original Mike said...

"Maybe it's Republicans realizing they're jamming down a wish list of right wing think tank legislation on an unwilling population."

You mean like balancing the budget?

furious_a said...

La Follette -- Visualize Impeachment.

If for no other reason(s) stupidity or disingenuousness. The man either doesn't know the difference between a state's Circuit and Supreme Courts, or he doesn't care.

garage mahal said...

Maybe it's the Republicans realizing that they have to fight bullshit tactics

No, they're just assholes of the first degree, and they're spooked about the recalls. it's also why they passed legislation making Wisconsin the hardest state in the union to vote.

Calypso Facto said...

The anti-democratic forces have just fallen back to the next line of defense: Federal court.

Scott M said...

No, they're just assholes of the first degree, and they're spooked about the recalls. it's also why they passed legislation making Wisconsin the hardest state in the union to vote.

Claiming they're assholes of the first degree so brazenly implies you believe your side to be pure as the driven snow and you know it's not true so drop the ad hominem. You got me on the new voting requirements. Although, when the bar is set pretty fucking low just about everywhere else, it's not real difficult to make it "harder". Call it the difference between playing a single string on a guitar versus a C chord.

Alex said...

Uh huh. Except in this case it's the Republicans doing it, and the Democrats opting not to. Maybe it's Republicans realizing they're jamming down a wish list of right wing think tank legislation on an unwilling population.

We'll see on July 12th.

Alex said...

garage's point is that most of Wisconsin are Commie, pro-union loving types and the GOP are just a passing storm.

Scott M said...

The anti-democratic forces have just fallen back to the next line of defense: Federal court.

Hell, even Kloppy knew when to quit.

Fprawl said...

Why do we even have Law Schools?
The ATF is giving guns to outlaws.
Boeing can't open a factory in a Red State.
Don't get me started on Auto Bailouts screwing Bond Holders.

The Law used to be an Ass, now it is irrelevent.

traditionalguy said...

La Follette is simply siding with the Dane's County Government against the tyrants elected to take over the State of Wisconsin's Government. It is a good thing that Dane County has such a strong ally in this war of secession. The Danes recently ran off that weak woman Chancellor at U. of Wisconsin who dared to gave aid and comfort to the Tyrant Governor of the Wisconsin State Government. Fear the Danes! La Follette does.

DKWalser said...

I think the legal question of whether the law is now in effect is fairly straight forward:

Law and Facts:

1. The WI constitution requires an Act to be "published" before the Act takes effect. The constitution directs the legislature to determine how this publication requirement will be met.

2. The legislature enacted Wisc. Stat. Sec. 35.095(3) which requires the Legislative Reference Bureau (LRB) to publish the Act on a date selected by the Secretary of State (which date cannot be more than 10 days after enactment of the Act). The publication by the LRB fulfills the constitutional requirement that an Act be published before taking effect.

3. The Secretary of State designated a date for publication and the LRB published the Act as required by Wisc. Stat. Sec. 35.095(3). (The Secretary of State later tried to rescind his designation of a publication date, but he did so pursuant to a court order that's been voided ab initio. Since the Secretary of State was required to designate a publication date that was no later than 10 days after enactment, since he did designate such a date, and since he only attempted to rescind his designation because of a court order that's to be treated as if it had never been issued, it would seem his rescission should be given NO effect. (Assuming he had the authority to rescind.) Otherwise, respecting the rescission would be giving effect an order that's to be treated as if it were never issued.)

4. In addition to fulfilling the constitutional direction to designate how an Act is to be published by enacting Wisc. Stat. Sec. 35.095(3), the legislature ALSO mandated the Secretary of State to publish a notice in the state's official newspaper within 10 days of the Act's passage. This requirement is found in Wisc. Stat. Sec. 14.38(10)(c). This notice is to inform the public of the Act's passage and where the public may go to find the text of the Act. This notice, in and of itself, cannot fulfill the constitutional publication requirement because the notice does NOT (or at least it is not required to) contain the text of the act.

Conclusions:

1. The LRB's publication of the Act pursuant to Wisc. Stat. Sec. 35.095(3) fulfills the constitutional requirement the Act be published.

2. The failure of the Secretary of State to publish a Notice in the newspaper cannot prevent the Act from having current effect for two reasons. First, the publication by the LRB has already fulfilled the constitutional publication requirement. There is NO constitutional requirement that the notice be published before an Act is effective; publication of the notice is a statutory, not a constitutional, requirement. As the Supreme Court just reaffirmed, the effective date of an Act cannot be delayed merely because a statutory requirement has yet to be fulfilled. Second, deferring the effective date pending the Secretary of State's publication of the Notice (or holding that the LRB's timely publication was ineffective) would give partial effect to Judge Sumi's orders -- the ones the Supreme Court said were to be given no effect.

3. There is no conflict with holding that the Act is now the law (and has been since the LRB's publication) and holding that the Secretary of State is now free to publish the notice required by Wisc. Stat. Sec. 14.38(10)(c). While the LRB fulfilled its obligation to publish the Act, the Secretary of State has yet to publish his Notice.

Browndog said...

related....

(JS Online) — The Wisconsin State AFL-CIO on Wednesday joined a broad coalition of organized labor groups, filing a federal lawsuit to halt Gov. Scott Walker’s collective bargaining legislation.

The groups include the American Federation of State, County and Municipal Employees (AFSCME) Council 24, AFSCME Council 40, AFSCME Council 48, the American Federation of Teachers (AFT), the Wisconsin Education Association Council (WEAC), the Wisconsin State Employees Union, The Wisconsin State AFL-CIO and the Service Emplloyees International Union — Health Care Wisconsin (SEIU).

cubanbob said...

garage mahal said...
The Koch Brothers and several very important corporations paid damn good money for Prosser's vote, and people risked their necks to get the votes needed in Waukesha Cty. Why do they have to wait two weeks? Ridiculous!

6/15/11 1:41 PM

Unless you can cite actual evience all you offer is an opinion. And as the great Inspector Callahan of the SFPD once said "opinions are like assholes, everybody has one".

Steve said...

As to the final recourse of the federal district court, I just wonder why some union member doesn't file a Temporary Restraining Order to prevent the collection of dues pending resolution. After all, if the dues are taken and the law upheld, they will never get their money back.

cubanbob said...

If the WI SoS is playing these games, why doesn't the Governor have the AG file suit to establish the date as of the enactment date and to invalidate any contract entered after that date that violates the law's provisions.

Then if WI law allows for it, just for shits and giggles the WI legislature ought to impeach and remove judge Sumi and the SoS.

Then for more thrills, pass a right to work statute and apply the collective bargaining provision to the cops and firemen.

Calypso Facto said...

The SoS and State Treasurer jobs were the objects of ridicule in the fall election for a couple candidates who vowed to eliminate their own positions once elected, in order to remove these useless man-nipples of state gov't.

Aloysius said...

LaFollette should be very careful about suspending the rule of law. That ax swings both ways in a tyranny.

FedkaTheConvict said...

The suit, filed in the Western District of Wisconsin, says the legislation violates the 1st and 14th amendments "by stripping away basic rights to bargain, organize and associate for the purpose of engaging in union activity, which have been in place for the last half century."

The case was assigned to Federal Judge William M. Conley. Conley is an appointee of President Barack Obama.


Heh... I bet the unions will get a TRO.

The Drill SGT said...

FedkaTheConvict said...
The suit, filed in the Western District of Wisconsin, says the legislation violates the 1st and 14th amendments "by stripping away basic rights to bargain, organize and associate for the purpose of engaging in union activity, which have been in place for the last half century."


simple defense, Federal law doesn't permit bargaining over wages or benefits, is it illegal?

Phil 3:14 said...

Garage said;
The Koch Brothers.....


BLUE MEANIES!!!

You know Garage I wonder if you've been assigned the Althouse blog by some larger liberal group

OK, Garage you take Althouse; who'll take Powerline?

If not so, please try harder, you're sounding like Wisconsin's favorite son of the 50's, Joseph McCarthy, and his obsession with Communist infiltrators.

Bushman of the Kohlrabi said...

They're still trying to? They've had months to get the work done.

I don't know what to tell you Madman. The stories of unions trying to sign last minute contracts are all over the media in my neck of the woods. Just today I heard about 2 Milwaukee County unions trying to strike deals. Stories about school boards trying to reach last minute agreements are also almost a daily occurrence.

caradoc said...

Clearly Wisconsonites aren't ready for this whole democracy thing.

On a grander scale, isn't it funny how well democracy works until the left doesn't get it's way?

johnvert said...

La Follette had to consult his personal attorney and his staff on how to do the job that he as done for 32 years. He will go down as the most incompetent government employee in the history of the state.

sorepaw said...
This comment has been removed by the author.
Original Mike said...

"Maybe Garage Mahal wants those think tanks he considers right wing to be suppressed."

There's room for doubt?

garage mahal said...


You know Garage I wonder if you've been assigned the Althouse blog by some larger liberal group


It's not exactly a secret the Kochs heavily back Walker in many ways. You just don't like that fact being brought up.

David said...

The SOS is our Quasimodo. He lurks in the capital dome in the late hours of the night. Brett Hulsey is his dancing gypsy.

Martin L. Shoemaker said...

"It's not exactly a secret" translates to "I can't prove it, only assert it and hope no one notices."

Original Mike said...

"You just don't like that fact being brought up."

Can't speak for others, but it's not clear to me why I should care.

junyo said...

"Maybe it's Republicans realizing they're jamming down a wish list of right wing think tank legislation on an unwilling population."

It simplifies everyone's life to understand that when Democrats win an election it's a mandate, when Republicans win it's a trick if not outright fraud. Always. And Democratic contributors are noble patriots, billionaires standing up for the little guy and taking their country back, and they wouldn't dream of using their money to procure the slightest bit of favor for their green, caring, and somehow not evil corporations. Republican campaign contributors like to spit roast nuns whole for fun, right before they turn on their mind control beam that bends voters to their will and order their legislative flunkies to burn down the rain forests, meet their species extinction quota, lynch a few minorities and force people to read the Bible at bayonet point. And that's the nice Rethuglicans.

Therefore there is NO moral obligation of the SoS to fulfill his sworn duty, since all of the voters in WI who helped to elect a majority Republican government (and judiciary) are obviously insane or guilty of crimes against humanity (which voting Republican obviously is), or dupes of the Koch brothers/Glenn Beck/Sarah Palin. Therefore their will doesn't count. Elections shouldn't have (conservative) consequences because a lot of you dunces don't know how to vote correctly. You morons can't be trusted with self government. Thank the ungendered, nonpersonified, nondenomenational, general feeling of non-Christian spirituality for the Democratic Party, or you rubes wouldn't have anyone to tell you what was good for you.

Ignorance is Bliss said...

The SoS can take as long as he wants as far as I'm concerned.

The Walker administration should point out, however, that the law was passed by the legislature, signed by the governor, the publication date was specified by the SoS, and was published on that date by the LRB back in March. The law is currently in effect.

Tyrone Slothrop said...

Koch Industries donated $43,000 to Scott Walker's campaign. They were Walker's fifth largest donor. The information is here.

That puts Northwestern Mutual Insurance and the Wisconsin Realtors Association a couple of notches higher on the evil scale. Have you protested them lately, garage?

In any case, if $43,000 can buy an election, I'll have several. All I need is a second mortgage and I can control any number of states.

Original Mike said...

$43,000? What's that? One milliSoros?

garage mahal said...

Soros contributes to who, exactly, in Wisconsin politically?

I don't know O.M., I would get a little tired of being blamed, as you are, for problems you didn't cause. Even when it hits your paycheck and gets sent not to pay off debt, but just sent to his campaign contributors.

Tyrone Slothrop said...

In 2006 George Soros donated $65,000 to Fair Wisconsin in an attempt to evilly force Wisconsinites to accept same-sex marriage against their will. George Soros's residence is listed as New York, NY. What is his evil motive in influencing elections in Wisconsin? Notice how I said evil several times?

David said...

The great name of LaFollette is now being used for pissant delay tactics by a third rate pol holding a largely useless office.Oh, misery.

Trochilus said...

t-man ... 6/15/11 1:19 PM

Precisely. It was published.

Judge Sumi's order attempted to undue the actual publication which was completed at the time.

Publication is not physically performed by the SOS. It is performed by the Legislative bureau that originally published it. The SOS just gives the order to "go ahead."

Any other interpretation would be a strained one, based on, well . . . pure fiction.

The Court really should have addressed it, even though the issue was not likely briefed and argued.

But the delay until the 28th is an intentional stick in the eye move by La Follette. He is toying with contempt and/or impeachment.

Martin L. Shoemaker said...

Trochilus said...

But the delay until the 28th is an intentional stick in the eye move by La Follette. He is toying with contempt and/or impeachment.

I don't think so. In March, he delayed publication as long as possible so as to give time for a claim to be filed with Judge Sumi. This is not a stick in the eye, it's exactly the same delaying tactic. He wants time for another judicial intervention.

chickenlittle said...

What is his evil motive in influencing elections in Wisconsin? Notice how I said evil several times?

Sinister motives. FTFY

Jake said...

If Sumi's rulings were void from inception then we revert to LaFollette's last lawful act which was to designate March 25 as the date of publication. The law becomes effective the day after the date designated for publication, not the actual date of publication, but only after the act is published. The act becomes effective upon publication, whenver that is, retroactively to March 26.

See Wis. Stat. Sec. 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)." (emphasis added)

geoffb said...

I wrote this over at Legal Insurrection on March 27th.
http://legalinsurrection.blogspot.com/2011/03/wisconsin-judge-expands-tro-prohibits.html?showComment=1301443910651#c686050467638104158


The Wisconsin Constitution

Enactment of laws. SECTION 17. [As amended April 1977]
(1) The style of all laws of the state shall be “The people of the
state of Wisconsin, represented in senate and assembly, do enact
as follows:”.
(2) No law shall be enacted except by bill. No law shall be
in force until published.
(3) The legislature shall provide by law for the speedy publication
of all laws.
[...]
In order for the legislature to create a law, the proposed law must be enacted by
bill and be published. For some action 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. The publication requirement is meant to avoid the situation where the
people have their rights sacrificed by the operation of laws that they are bound to
know, but have no means of knowing. Milwaukee Journal Sentinel v. DOA, 2009
WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07−1160.
The state legislature cannot constitutionally adopt prospective federal legislation
by reference. 63 Atty. Gen. 229.
Article VII, sec. 21 [17] requires full text publication of all general laws, and
publication of an abstract or synopsis of such laws would not be sufficient. Methods
other than newspaper publication, under 985.04, may be utilized to give public
notice of general laws.




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.

I've bolded a part that is pertinent as it has been held that methods other than newspaper may be used to "publish" a law and as the history of the "publish" section of the law shows it is the legislative reference bureau that publishes laws. Something they have already done back in March for this law.

dave in boca said...

Hmmm..... Does the WI State Atty General have the power to arrest the Sec'y of State for criminal malfeasance? And if the WI State Police refuse to arrest the Sec'y of State LaFollette, can the WI National Guard be ordered by the Governor to do so?

My cousin's husband is a Brigadier Gen. in the WI Nat'l Guard and is predisposed to follow the Gov's orders in this respect. And when are they going to clear the scum of the earth out of the State Capitol Bldg?

wGraves said...

OK, we're now in the information society. So, the legislature should change the law to something like:

"The clerk will post the new law to the official website of the legislature within one day of passage, whereupon the law will take effect on the next business day."

That will nicely remove the power from the perview of the SoS.

Alex said...

Why do Althouse hillbillies HATE democracy?

J said...

The great name of LaFollette

True, though the old LaFollette progressives, like circa 30s, would have probably rallied some of the local farmers (who hated the GOP-banker party in those days--) and workers and rolled Walker and company during a campaign stop and tossed his pretty-boy scab-ass in a grain silo.

Original Mike said...

@garage: I'm tired of a lot of things. Most of all, I am tired of irresponsible government.

Fen said...

Why do Althouse hillbillies HATE democracy?

Because we saw what it did to Athens. We don't hate it, we "hillbillies" are just wise enough to prefer a Republic.

Fen said...

garage: it's also why they passed legislation making Wisconsin the hardest state in the union to vote.

Stop cheating and we won't have to make it "harder" to vote.

Michael Haz said...

Garage Mahal said "....and they're spooked about..."

RACIST!!

Robin said...

I see Mahal is once again resorting to his sole rhetorical tool: slander.

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