How about the fact that, to take effect, the law must be published in the newspaper of record (which the LRB doesn’t have the authority to do without the SoS’s cooperation), not just as a link on the state website? And it wasn’t.
Due diligence: I’m personally all for tying this up in court until the sane people of Wisconsin can recall the wingnut scofflaws. If there’s any justice in the universe, Kloppenburg is going to roll over Prosser in the WiSC election on Tuesday like a monster truck over a Yugo.
No. Because I don’t see any requirement in Wisconsin law that the publication has to include a date before it becomes effective. Do you?
Here is my cite: Wis Stat § 991.11 says that every act which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication.
So if the SecState doesn’t supply a date, then the automatic date is the day after it’s been published.
Hmm. I addressed that argument above, in post 29. Did you have some specific rebuttal to my argument? Because it sure seems like this post simply ignores what I said, almost like you didn’t read it.
§ 35.095(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 don’t know that that’s a fair conclusion to draw. I mean, the judge does seem to have made a mistake on this in her directions to the Sec. of State, but that sort of thing happens, and I don’t know that the judge’s mistake allows you to draw any sort of broader conclusion. As to whether this legislation has been legally passed or not, that seems to be the subject for debate, and given that there is a case that will undoubtedly get to the Wisconsin Supreme Court, and that it does seems to have at least a decent chance of prevailing on its merits, I don’t think a temporary stay of the law while the case works its way through the courts is a terrible idea, is it?
Bricker, I admit that I’m confused about the newspaper thing. Most of the articles and blogs I’m reading about the situation state what I said, that a statute must be published in the paper of record (which is currently the Wisconsin State Journal) before they are considered enacted. The state constitution says (ART. IV, Sec. 17) that they must be published (no mention of a newspaper, though there is a footnote that publication in something other than a newspaper can be allowed, under certain circumstances, which says to this non-lawyer that newspaper publication is the usual method).
And do you maybe think that Judge Sumi didn’t specify the LRB or Fitzgerald or Walker because she wasn’t expecting them to violate the spirit of her ruling quite so brazenly? She obviously intended the ruling to enjoin enactment of the law by any agency, and figured that sane people would realize this and not keep trying to break the institutions of the state into kindling.
Doesn’t that suggest that the Secretary of State *shall *give the date of publication? Not might or sometimes-oughta or whatever?
If the Sec. of State doesn’t give the date the publication can’t happen, right?
Again, I’m not a lawyer, but it seems like the Sec. of State must load the gun and then it can be fired. Firing the gun before the Sec. of State puts bullets in it seems like it doesn’t meet the requirements.
Undoubtedly newspaper publication is theusual method.
But equally undoubtedly, the law doesn’t seem to actually specify that.
This is the same kind of thinking that allows one to say, “The legislature must have a quorum to conduct business,” and think: We are going to lose this vote because we don’t have enough membersopposed, so let’s just leave and deny them a quorum.
It’s contrary to the spirit of a legislature, but certainly permitted by the rules. So when the Democrats did that, I said they were in the right, because rules mean what they say.
Now the Republicans are doing the same sort of tactic: they realize that “published” doesn’t mean “in the newwspaper of record.” In the law, it just says “published.”
So I support that move, under the exact same reasoning.
It seems to me that if you take the position that we should stick to the spirit of the rules, then you must believe that Democrats were wrong to flee the chamber. And if you took the position that the Democrats were right to flee the chamber, then I don’t know how you can object to this… unless your position is, “I support whatever rules will reach my desired result in any given circumstance.”
No, because even a liberal judge should know that a court speaks through its written orders, and cannot bind someone who is not a party. The law directs the LRB to pblish. If the LRB isn’t bound by a court order, they MUST publish.
Now, could the LRB have called Judge Sumi and said, “Um, Your Honor, you didn’t include us in your order – do you want to correct that oversight?”
Sure, they could have. But again – they didn’t have to, and since this entire mess arose because the Dems decided to stick to the letter over the spirit of the process, they cannot now be heard to complain that the mean Repubs did the same thing.
Sure. And he did, before the judge’s order took effect. And after the judge issued her order, he dutifully called the LRB and said that he was rescinding the date.
So he followed the judge’s instructions to a tee.
But there’s nothing that says the publication can’t happen if the Secretary gives a date and then withdraws it. And that’s what happened: the LRB published the act, without noting the date on which it would become effective, because the Secretary hadn’t specified a date… as they were required to do under § 35.095(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.” THAT says nothing about the Secretary of State. It’s just a command to the LRB to publish everything within ten days of enactment, period.
The judge needed to order the LRB to not publish if she wanted the law not published. She didn’t realize this, failed to do so, and is now out of luck. The law is published, and it has taken effect. The state is withholding more money from paychecks to cover benefit costs. It’s done.
Now, the law may still be overturned by a final court decision. But right now, despite Judge Sumi’s ire, the law is in effect, the state is obeying it, and that’s that.
Yes, and when this all does come down as it should, on the side of the opposition, there’s going to be a hell of a mess to clean up. Walker’s done this before. Milwaukee is still paying off the guards he dismissed AND paying Wackenhut their contract because he acted against the law as county manager.
I’m not sure what you’re picturing will happen. I don’t think the law will be judicially overturned, for reasons I’ve mentioned elsewhere. I think it’s more likely that a combination of the next scheduled election and the possible success of some of the recall efforts will flip the balance of power to the Dems, who will repeal the law… but I’m not seeing the mess.
They’re already not withholding union dues. When this is overturned, does the union collect the dues from their members directly (that’s going to be really popular, collecting two or four or six paychecks worth of dues at once), or do they try to collect from the state? How will what happens (or doesn’t happen) between the “enactment” of this law and the overturn (due to open meeting law violations, remember, not due to the injunction) be retroactively remedied? Walker has a history of doing this kind of crap. He doesn’t care what it costs the state or the public employees…it’s not going to be his money that get spent to remedy the situation. Freakin’ little weasel…
The “Heroic 14” used the quorum rules pretty much as intended, just as Lincoln did in his day. Their purpose was to prevent a set of laws being enacted too quickly for the public to engage in the debate.
The law that was broken by the Republicans in the State Congress, and which caused the judge to rule as she did, was set up also to ensure that no legislation would be able to be passed without appropriate time for the public to be notified and make their wishes known.
Your analysis falters in many places, Counselor, but here it falls flat on its ass.
In fact, it falls so hard, it becomes a tidy demonstration of exactly how it is that the Republican leadership in Wisconsin is subverting what we’ve been calling “the democratic process”.
I disagree. The quorum rule was created to ensure that a minority could not assemble and conduct business without the majority being represented.
I also disagree. As I have previously cited, the open meetings law contains an explicit exception for meeting of the legislature, as long as such meeting is conducted in accord with the legislature’s own rules… which this was. See Wis. Stat. § 19.87(2).
Do you have any reason to contest this?
Really? Because I seem to be the only one supporting my claims with specific citation to Wisconsin law. Your “analysis” is a set of conclusory statements unconnected to any actual law. Funny that my analysis, the one with all the specific and detailed references to the law of the state of Wisconsin, is the one that falters, and your completely uncited statements are the right ones.
Do you really care? I mean, I could explain it, but it seems to me you don’t really care what the law might say… you’ve said before you judge situations by what you think the RIGHT thing to do is. So if the law happens to help you, I guess you’ll argue that it should be followed, and if it doesn’t, you’ll argue that the spirit should be followed, and if neither the letter or the spirit help you, you’ll piously claimwe should hang the law anddo what’s “RIGHT.”
Probably you’ll toss in a “balderdash, sir” or a “tommyrot” just to showcase the deeply held convictions you’re espousing.
So where in all that do you particularly care what that phrase means?
I’m coming into this thread a little late as I haven’t been on the board in a while.
As a non-lawyer I looked at the order:
and assumed that the first sentence prevented any further implementation of the law and that the next two sentences were just some sort of legalistic window dressing to clarify the point.
If Bricker is correct (and he is a lawyer while I am not so the odds are in his favor) then I was mistaken. According to him, a judge has to enjoin a specific party, so it is actually the first sentence that is the window dressing and the second and third that are important.
So Bricker, how should judge Sumi have written it in order to temporarily restrain it’s implementation? What party or parties should she have enjoined and what specifically should she have enjoined them from doing?
Another question. Is there any way to enjoin the publication or implementation of a bill without naming a specific party or parties?
If this 35.095 (3) (b): only takes effect in the event of a “partial veto”, why are we even discussing it? And if the procedures are the same whether or not there is a partial veto, based on some other statute, shouldn’t you be talking about that one, rather than what appears to be a special exemption based on a Governor’s “partial veto”?
[QUOTE=Bricker]
…Wisconsin 35.095 says that the legislative reference bureau shall publish every act passed by the legislature…
[/QUOTE]
This omits the part about the “partial veto”. Unless there are two “35.095”?