Yet another shoe has dropped in the battle over Wisconsin Gov. Scott Walker's (R) anti-public employee union law -- with state Republican leaders now apparently defying or attempting to circumvent a court order that temporarily blocked implementation of the law.
Last week, a judge in Dane County (Madison) blocked the law on procedural grounds, ruling that a key conference committee used to advance the bill -- and to get around the state Senate Dems' walkout from the state -- had violated the state open-meetings law by failing to give proper 24-hours notice.
The judge's order "restrain[ed] and enjoin[ed] the further implementation" of the law, including the prevention of Secretary of State Doug LaFollette (D) from publishing the act in the Wisconsin State Journal, which acts as the state's official newspaper for the purpose of giving the public official notice of new laws -- the final step for the law to take effect. That decision is now going through an appeals process, which remains up in the air.
But now, state Republicans have had the bill published through a different office -- the Legislative Reference Bureau, which handles drafting and research for the legislature -- according to the LRB's statutory requirement to publish legislation within ten days of enactment. Interestingly, the LRB itself says that this publication does not constitute action that would put the law into effect. But the state's Republican leaders disagree. Senate Majority Scott Fitzgerald (R) says the LRB publication constitutes official publication and the insists the law will take effect Saturday.
The Milwaukee Journal-Sentinel reports:
"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."
...
Senate Majority Leader Scott Fitzgerald (R-Juneau) claimed it didn't matter that it hasn't appeared in the paper.
"It's published," Fitzgerald said. "It's law. That's what I contend."
Following this action, State House Minority Leader Peter Barca (D) obtained a letter from Scott Grosz, the staff attorney for the Wisconsin Legislative Council -- which offers legal advice to the LRB -- further outlining the LRB's position. Key quote:
As described above, s. 35.095 (3) (b), Stats., refers to the publication activities of the Secretary of State, rather than the publication activities of the LRB. Accordingly, while certain statutory obligations regarding publication of Act 10 have been satisfied by the LRB, the statutory obligation that relates to the effective date of Act 10 has not yet been satisfied by the Secretary of State, and at this time the Secretary's actions remain subject to the temporary restraining order issued in Dane County Circuit Court.
However, Fitzgerald is insisting otherwise, the Wisconsin State Journal reports:
"Every attorney I have consulted said this will now be law," said Fitzgerald. "It wasn't a secret. I think they left the door open for this."
As WisPolitics reports, Fitzgerald said that he had sent the LRB the letter suggesting publication:
"It became clear that this was an option and they were on equal footing with the secretary of state," Fitzgerald said.
Fitzgerald said he could not speculate what legal actions may be taken following LRB publishing the act, but he was confident the move was proper.
"It's law tomorrow," he said.
So what does this all mean? Well, it now appears that Republicans are ready to move ahead with the new law eliminating most collective bargaining rights for public employee unions, despite a court order that prevented not only 'publication' but any "further implementation" of the statute. The move is almost certain to spark yet more litigation and provide more grist for the Democratic efforts to recall Republican state Senators this year and Walker himself next year.
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