Publish or Perish: The Budget Bill is Not Law

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Category: Wisconsin Law & Legal System
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The danger, when we embark on the task of interpreting any written work that is not our own, is that we only see what we want to see.  I admit that words are imperfect tools for the conveyance of meaning, and that oftentimes multiple interpretations of a text are possible.  However, I reject the idea that all possible interpretations of a text are equally legitimate.  I may not know with certainty exactly what the author intended, but if I am honest and rigorous I can narrow the universe of plausible meanings.  If I did not believe in the possibility of discerning meaning in an objective manner, then I would not have become a law professor.

The Wisconsin Constitution requires three things before legislation becomes “law:” 1) a bill passed by both houses of the legislature; 2) either the Governor’s signature or a veto override; and 3) publication.  The act of publication is a constitutional requirement, and no action of the legislature can become effective as law without this act.

The Wisconsin Constitution leaves it to the legislature to decide the manner in which publication will occur.  The legislature has passed various statutory provisions which, taken together, reflect the choice that it made.

The “date of publication” is the date designated by the Secretary of State (Wis. Stat. Section 35.095(1)(b)).

The Secretary of State designates a date of publication that is no later than ten working days after the enactment of the bill (Wis. Stat. Section 35.095(3)(b)).  Chapter 35 specifically ties the date chosen by the Secretary of State under Section 35.093(3)(b) to the “date of publication” in Section 35.095(1)(b).

The legislative reference bureau is directed that it “shall publish” all of the laws within 10 working days after enactment (Wis. Stat. Section 35.095(3)(a).

The text is clear that the Secretary of State has the power under the statute to effectuate “publication” in the constitutional sense.  The question is whether the legislative reference bureau has been given the independent power to “publish” in the constitutional sense, or whether it merely “publishes” in the sense of “printing” copies of the laws in coordination with the Secretary of State’s publication.

It is significant that the above provisions of Chapter 35 are in a section entitled “Definitions” and that these provisions are meant to provide definitions “in this section.”  The following section, Wis. Stat. 35.15, refers to the duty of the legislative reference bureau to prepare a volume entitled “Laws of Wisconsin,” to include in the copy of the law the “date of publication,” and to “publish the Laws of Wisconsin as expeditiously as possible.”

The most common sense interpretation of these provisions is that the date of publication set by the Secretary of State is the moment at which publication occurs in the constitutional sense, and that the legislative reference bureau prints and distributes official copies of the law on a date no later than the “date of publication” chosen by the Secretary of State.  The two offices are to coordinate in order to ensure that the public dissemination of the new law occurs within the 10 day time frame.     

It is relevant to the above conclusion that the heading of the statutory section where Section 35.095 and Section 35.15 reside is entitled “LEGISLATIVE; CLASS 1 PRINTING.”

It is also relevant that this interpretation is in accord with the general understanding of the law by the Secretary of State, the legislative reference bureau, and the general public, or at least that this was the common understanding until this past Friday.

The WISCONSIN BLUE BOOK, which is regularly published by the state government as a source of information about how the state legislative, judicial and executive process works, describes the duties of the Secretary of State to include coordinating with the legislative reference bureau in the publishing of laws.  In addition, newspaper editorials around the state have often made explicit reference to the duty of the Secretary of State to coordinate the publication of laws (typically in the context of arguing that the position of Secretary of State be abolished and his duties transferred elsewhere).  Both agencies charged with implementing Chapter 35, the Secretary of State’s office and the legislative reference bureau, have publicly announced that this is the interpretation of the law that they follow.

Against this interpretation, we are pointed to Wis. Stat. 991.11, which provides that the “effective date” of a new law that doesn’t specify a date when it goes into force will be the day after its “date of publication as designated under Section 35.095(3)(b).”  The argument, as I understand it , is that the effective date of new laws is tied back into the legislative reference bureau’s duty to publish new laws within 10 days of enactment.  Supposedly this empowers the legislative reference bureau to “publish” a law in the constitutional sense.

I would be more inclined to consider this argument seriously if Section 35.095(3)(b) was the section that commands the legislative reference bureau to publish laws within 10 days.  But it is not.  In fact, Section 35.095(3)(b) is the section that specifies that it is the duty of the Secretary of State to “designate a date of publication.”  Section 991.11 closes the loop by tying the “effective date” back into the “date of publication” set by the Secretary of State.  It does not create a method for bypassing the Secretary of State.

The 2009 Wisconsin Supreme Court case of Wisconsin Journal Sentinel v. Department of Administration does not provide any support for the idea that the legislative reference bureau has the independent power to “publish” in the constitutional sense.  In that case, the Wisconsin Supreme Court held that a purported change to the Wisconsin Statutes did not occur because 1) there was no legislative enactment and 2) there was no publication.  In sum, this is a case that requires the constitutional procedures for publication to be followed.  It is certainly true that the majority opinion spoke generally about the possible means of publication that might satisfy the constitutional command, and noted that publication in a newspaper need not be the only means of publication that satisfies the Wisconsin Constitution.  However, at most these statements merely indicate that the legislature is free to pass a law choosing among various alternative methods of publication.

You can read the opinion for your self here: http://www.doj.state.wi.us/dls/OMPR/2010OMCG-PRO/2009_WI_79_MilwaukeeJournal.pdf

The legislature is free to pass a law changing the method of publication, but it has not done so.  At the moment, the law provides for one method of satisfying the constitutional requirement of publication: designation of a date by the Secretary of State and public dissemination via publication in the newspaper of record.  So long as this is the only method provided under the statutes, this is how publication must occur.  Any attempt to give legislation the force of “law” without following the statutory provisions already in place is an attempt to bypass the publication requirement of the Wisconsin Constitution.

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27 Responses to “Publish or Perish: The Budget Bill is Not Law”

  1. jim mcmenamin Says:

    thank you,I appreciate that explanation

  2. jacqueline janecke Says:

    wow. thank you mr. fallone for this digestible interpretation and easy explanation of the issues at play here. for the first time in three days, i feel more peaceful and definitely clear about this issue. the voice of non-partisan sanity and a clear-headed, unemotional consideration of all the parts! i am grateful to have found this and intend to share it with others on facebook. my hat is off to you! well done!
    jacqueline

  3. Julia Roberts Says:

    Thank you for the clarification. There is a great deal of misinformation in the press and elsewhere.

  4. Mialisa Moline Says:

    Well presented, logical, cogent…nicely done!

  5. Excellent legal analysis. Other sections also say the Secretary of State should publish items in “the official state newspaper”. While that is not explicitly the case here, I think there is a strong suggestion that this would be the proper outlet in all cases, as that is what has been the procedure for some time.

    Certainly, habit, history and procedure are not law, but “publishing” online should not be considered official until made explicitly so.

  6. Gina Jones Says:

    As one who is new to this arena, your explanation makes sense to me. Thank you.

  7. Eric Thompson Says:

    Is there any indication that, once the Secretary of State has designated a date of publication, he has the authority to revoke or change that date? Since Sec. 14.38(10) requires that this designation must occur within one day of the act arriving in his office shouldn’t any change of date occur within that same time limit?

  8. Thank you for the thoughtful essay. Makes me a lot less nervous about tomorrow’s hearing!

  9. suzanne haines Says:

    Now if only the unethical people who are sitting in Madison would only learn to follow the law; rather than create a dictatorship.!

  10. Elizabeth Mowry Says:

    Thank you very much.. it makes much more sense now.

  11. What about the legal impact of Judge Sumi’s injunction to “restrain and enjoin the further implementation of 2011 Wisconsin Act 10,” of which the instructions to the SoS were just a specifying clarification? Doesn’t that make implementation – in any way, by any agency – illegal and ineffective?

  12. Christopher Dyszelski, Ph.D. Says:

    As an MU Alum I am glad that an astute member of my school has stepped up to bring some semblance of sense to the nonsense being perpetrated in the state.

    Thank you so much for this very clear explanation and digestion of statutes.

    It starts to make up in my mind for the lack of action MU took in warning us all about the history and actions of former student Mr. Walker.

  13. Art Marquardt Says:

    You missed the part that gives the SOS one business day from signing to indicate the date of publication, which he did, 3/25/2011. This ministerial duty was completed and is not revocable by anything I see in the statutes. Would you care to explain?

  14. Michael Farrey Says:

    We need to look into and find a way to eject him from office for trying to abuse the power of the office. Or we need to find a way to remove the 1 year term before a recall can be done. We need to remove the 1 year before recall in all offices. This especially true for an office that has been held in a prior term. The Fitzgerald case is the perfect example of the need for this. Thank you for putting your time into this matter!

  15. Robert Kientop Says:

    So, what penalties exsist for enacting false laws? Do labor unions all across the state now file suit? This action causes great harm to our member’s rights.

    -Director -Bay Lakes United Educators
    Green Bay, Wisconsin

  16. Kaye Vance Says:

    You should send this to Mr. Eisenberg, the current media go to person from MU law school. ( I just heard his misinterpretation on NPR) It’s helpful when an expert actually reads the laws before commenting.

    Your analysis is much appreciated.

  17. Kaye Vance Says:

    You should send this to the visiting MU law professor who is the current media go to “expert”. ( I just heard his misinterpretation on NPR)

    Your analysis is much appreciated.

  18. Linda Kessel Says:

    Indeed, this is an excellent clarification of the procedures. However, I am concerned about your statement, “The legislature is free to pass a law changing the method of publication, but it has not done so.” Though it is a statement of fact, it will merely encourage the the legislature to enact new laws surrounding the publication of a bill, giving it to an authority they can control. The Governor and the majority parties of the legislature seem willing to jump over or around any hurdles to implementing their agenda. I certainly wouldn’t put it past them to monkey with this one.

  19. Patrick Kelly Says:

    “The text is clear that the Secretary of State has the power under the statute to effectuate “publication” in the constitutional sense.” I’m not trying to be thick, here, but why is that clear, if the text says the SOS shall designate a date, rather than the SOS shall publish (as the test used to read)? I mean, the statute actually says LRB shall “publish.” If the legislature wanted to say “SOS shall publish,” why wouldn’t it just say that? I say this respectfully, but it seems your analysis requires the greater stretch, when it takes one phrase “Shall designate a date for publication” to mean “publish, especially when the statute also gives the duty to publish to the LRB.

    Does it work to read it as follows: The SOS must designate a date, within 10 days of enactment for publication. (Wis. Stat. Section 35.095(3)(b)). The LRB must then publish on the designated date, or within 10 days of enactment. (Wis. Stat. Section 35.095(3)(a). That way, you can follow the text of the statute without having to argue that “designate at date” means “publish”, but “publish” when used to direct the LRB means something else. In that case, the command in Wis. Stat. 991.11, which refers to the designated date of publication (as opposed to publication) can be similarly read using the plain language of the statute.

    I certainly could be missing something here, so feel free to enlighten me. I would appreciate your insight.

    I appreciate the civil way you express your analysis without the ad hominem favored by nearly everyone in this debate, including some comments here.

  20. Ms. Vance

    I can assure you that I read the law and, in fact, anticipated this argument on Friday. I respect Ed’s view. I see it another way.

  21. Ed Fallone Says:

    Mr. Kelly:

    The legislative research bureau has legal duties defined as follows in Wis. Stat. 13.92(1)(b)(4):

    “Publish each act on its date of publication. Upon receipt of notice from the Secretary of State under section 14.38(10)(a), the bureau shall enter the act number, date of enactment and date of publication of each act on a camera-ready copy and deliver it to the contract printer for reproduction . . . The bureau shall make copies available on or before the date of publication of the act . . .”

    The common sense reading of this section, along with the other sections that I reference in the post, is that the “date of publication” set by the Secretary of State is the date when an act is to be published into law. The function of the Secretary of State is to decide when this date is (no later than 10 days) and to coordinate with the legislative reference bureau so that the latter agency disseminates the law to the public on the date selected. I do not see how any law can be “published” in a constitutional sense before 12:01 am on the day selected by the Secretary of State. We never reached that day in this instance because the TRO enjoined the Secretary of State.

    Professor Esenberg (or other observers) might argue that the TRO was improper, or that the Secretary of State lacked authority to rescind the publication date he had already set, and I suppose that these are different legal questions for another day. However, on the question of whether the legislative reference bureau can “publish” a law in the consitutional sense on any day other than the one designated by the Secretary of State, I think the answer is a clear “no.”

  22. Patrick Kelly Says:

    Professor: This seems to be a different argument than you made above. Still, my question is, why wouldn’t we assume that the statute means what is says, i.e. that the SOS designates the publication date, and the LRB publishes? Nothing in that construction is contrary to the statute, nor is it contrary to what you have written in your response. The LRB will publish each act on its date of publication – the date designated by the SOS. That is a separate question from whether we reached the date designated by the SOS. That should turn on whether the Order from the Judge telling the SOS to refrain from doing something (publishing) extends to doing something that he was not ordered to do (“rescinding the publication date”), and whether the Judge has the authority to make such an Order, and whether such an Order confers authority on the SOS that he was not otherwise granted by statute or the Constitution. Those, indeed are questions for another day, hearing or blog post.

    Thanks for your response. I imagine those members of the law professoriate that routinely teach Legislation are salivating at the opportunity to add this case to the syllabus.

  23. Patrick Kelly Says:

    It now appears that the Judge has enjoined further implementation. Curious to know how she can do that, with only the SOS as a party. Of course, the Republicans could simply re-pass the legislation and avoid this. We do need an appellate opinion; however, it’s for the law students!

  24. Eric Feldkamp Says:

    “We never reached that day in this instance because the TRO enjoined the Secretary of State.”

    No matter how confident in the limitlessness of their power, no judge can restrain the calendar. So we absolutely did reach the date set forth by the SoS, which he set prior to the TRO.

    It should also be noted that the TRO did not order the SoS to rescind already issued commands (assuming it was possible), but specified against “further” implementation. Since all the legal actions required of the SoS by the law were followed prior to the issuance of the TRO he followed the TRO precisely.

    In addition, as noted here and elsewhere, the law contains language that, absent a date being set by the SoS, the LRB must publish the law within 10 days if no other date is specified within the law itself.

  25. Tom Kamenick Says:

    But Prof. Fallone, what if there is no date designated by the SoS? According to sec. 35.095(3)(a), the LRB “shall publish every act . . . within 10 working days after its date of enactment.” I think that’s pretty clear that if the SoS doesn’t set a different date, the LRB must publish it by that 10th day.

  26. Russell Stutz Says:

    “Professor Esenberg (or other observers) might argue that the TRO was improper, or that the Secretary of State lacked authority to rescind the publication date he had already set, and I suppose that these are different legal questions for another day. However, on the question of whether the legislative reference bureau can ‘publish’ a law in the consitutional sense on any day other than the one designated by the Secretary of State, I think the answer is a clear ‘no.'”

    However, the LRB did publish on the day designated by the SOS, so it seems you either have to answer the question of the SOS’s ability to rescind that date, or you must change the title of your blog post.

    Sec. 14.38(10) states,
    “No later than the next working day following
    the deposit of an act in his or her office, provide written notice
    to the legislative reference bureau of the act number and date of
    enactment, and the designated date of publication of the act under
    s. 35.095.”

    If the SOS has the authority to rescind the date of publication, doesn’t that render the requirement that he set that date by the “next working day” a nullity? What would stop the SOS from simultaneously setting and rescinding the date in order to “comply” with the next working day requirement?

  27. Todd Hoskins Says:

    I didn’t see any mention made of the spirit of the law. As I understand it, typically laws are published the same or next day they are received. In this case the bill was held for political reasons violating, in my opinion, the spirit as well as the history and precedent established by previous publishings.

    Just a thought…

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