In an interview with Fox Cable News this morning, reporter Mike Tobin asked me if what we were seeing in Wisconsin was “lots of politics and little law.” While I began my answer in disagreement, I concluded by saying there was a sense in which he was right. The heat generated by the budget repair bill has caused people to behave in ways that are unusual and without substantial precedent. For a profession that often relies on precedent to resolve textual ambiguities and conflicts, this creates not inconsiderable difficulty.
My own view on whether the budget repair bill is different than that offered by Professor Fallone. My best answer is that it is “probably” in effect. Here’s why.
Sec. 14.38(10) says that “”[n]o 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.” Sec. 35.095(b)(3) provides that the Secretary “shall designate a date of publication” and that this date of publication “may not be more than 10 working days after the date of enactment.”
I think that the best reading of this is that the publication contemplated by the Secretary of State’s designation of a publication date is publication by the Legislative Reference Bureau under sec. 35.095(b)(2). There appears to be nothing else that it can be. The only other duty that the Secretary has is to publish the law in the official state newspaper. Some have suggested that this is the “publication” that renders the act effective. That does not seem to be the case. The Secretary is required to “[p]ublish in the official state newspaper within 10 days after the date of publication of an act a notice certifying the number of each act, the number of the bill from which it originated, the date of publication and the relating clause.” Publication in the state newspaper cannot be the “date of publication” on which the act becomes effective because it may happen after the date of publication.
The framework seems fairly simple. The Secretary of State is obligated to inform the Legislative Reference Bureau of the fact that a bill has been enacted, to transmit that bill to the LRB and to inform it of the publication date – a date that may not be less than ten working days after the enactment of the law. These are ministerial duties. He has no discretion as to whether they shall be performed and, once they have been performed, there is nothing more for him to do in order for the enacted bill to become law. It is the Legislative Reference Bureau that publishes the act both in the constitutional sense (Art. IV, sec. 17(2) says that no law shall be in force until published)and, in all likelihood, sec. 999.11 (which makes the effective date of a bill that does not state otherwise, the day after publication).
This is, incidentally, a change from the version of sec. 14.38(10) which made the Secretary of State responsible for publication. The legislature, in other words, has changed the law.
What makes me say that the bill is only “probably” the case is that the Secretary of State has attempted to “rescind” his publication date. As I pointed out when I first wrote about this on Friday evening, sec. 999.11 refers back to sec. 35.095(b)(3). Maybe one can argue that the “date of publication” to be chosen by the Secretary of State is simply an effective date on which nothing must actually happen. That strikes me as a strained reading but let’s see where it takes us.
The argument against effectiveness would be that there is no date of publication chosen by the Secretary because he has “taken it back.” But it is unlikely that he has the authority to do so. He is not empowered by statute to do so and must designate the date of publication within a day of the deposit of the enacted bill in his office. Thus, even if Judge Sumi had ordered him to rescind the publication date, he could not do so.
But, of course, she did not order him to rescind the publication date. Her order only enjoined him from publishing the law. He has not done so. Indeed he had no authority to publish in the sense intended by sec. 35.095(b)(3)’s reference to the date of publication.
All of this may seem overly technical and as a way of exploiting errors made by the Dane County District Attorney and the judge. No one, however, has “exploited” anything. The LRB had to publish and, if I am right, the law becomes effective by that publication or by the Secretary’s designation of March 25 as the date of publication.
There are two lessons here. First, a close reading of the law matters. Second, mistakes happen when courts behave in a rash manner.
It is questionable that Judge Sumi ever had authority to enjoin publication of the law. There is Supreme Court precedent that seems to say – quite clearly – that publication is part of the legislative process and is not subject to judicial restraint. Perhaps, as some have suggested, the open meetings law somehow changes the general rule but Judge Sumi not only failed to explain why she felt she could enjoin publication, her opinion did not even acknowledge the issue. Nor did it explain why enjoining publication – as opposed to a post-publication injunction against its enforcement – was necessary.
Had these issues been more carefully considered rather than obscured by the hot house atmosphere in Dane County, we’d have a less tangled situation.
Rick, we obviously read things very differently.
Your “argument against effectiveness” seems to ignore the purpose of Section 991.11. Every bill that becomes law must have an effective date. Oftentimes, the text of the bill provides when it will be effective. What happens when the text of the bill is silent?
Section 991.11 provides that the law becomes effective by reference to its “date of publication.” This is the date selected by the Secretary of State. It makes perfect sense to use the publication date in order to fill in the gap, and is certainly preferable to other alternatives such as saying that bills where the legislature left out an effective date are effective “immediately” or else effective “10 days after enactment.” These alternative approaches would disrupt the scheme set forth in Chapter 35 whereby the Secretary of State coordinates with the legislative reference bureau to ensure that the new law is printed and disseminated contemporaneously with its publication.
Of course, we never reached the date of publication in this instance because the judge issued a TRO. Whether the TRO was properly issued or not is a discussion for another day.
The statute gives the job of designating the date of publication to the Secretary of State, not to the legislative reference bureau. No one in state government previously has behaved as if the legislative reference bureau had the independent authority to effectuate publication without the Secretary of State’s direction, at least not until last Friday when the Senate Majority Leader declared that it did.
The historical understanding of these statutory sections, taken as a whole, is that the Secretary of State effectuates publication, the legislative reference bureau prints and disseminates the laws, and the two offices are supposed to coordinate so that the publication and public notice of the new law go hand in hand. Coordination requires working together, and the statute gives the Secretary of State the authority to set the timing of the process. None of this works if the legislative reference bureau can disregard the date set by the Secretary of State.
Bottom line: I would need to see more evidence beyond the legislature’s use of the word “publish” in Section 35.095(3)(a) before I am convinced that the legislature actually intended the completely different scheme that you describe, and that we have all been too blind to realize it for lo these many years.
Maybe off topic, but where did you get the picture? It looks awesome!
Minor correction: In your fifth paragraph, you state that the publication date “…may not be less than ten working days after the enactment of the law.”
I’m pretty sure that you meant “…may not be more than ten working days after the enactment of the law.”
Here’s a thought – because the Secretary of State must designate a publication date that “may not be more than 10 working days after the date of enactment”, if the SOS does not designate a publication date (or does and later rescinds it) is the publication date deemed to be that 10th day automatically?
Ed, I don’t think I am ignoring the purpose of sec. 999.11. I do not argue that the Secretary of State does not have the duty to designate the date of publication. He does. He must do it within one working day of the law being deposited in his office and he can presumably pick any day that is not more than ten working days after enactment. But that is his only responsibility with respect to the “publication” which renders an act effective under sec. 999.11. It is the LRB which, as you put it, “effectuates” publication, i.e., actually publishes the law.
The issue becomes, as I have consistently maintained since this happened on Friday, the impact of the Secretary of State’s attempt to rescind his publication date. In the absence of a court order, he would absolutely no authority to do so. He must designate a date. It must be done withine one working day. It may not be more than ten working days after enactment.
There are more fundamental problems with Judge Sumi’s order, but it’s not clear to me that she can order him to do something he has no authority to do and, in any event, she did not do so. She ordered him not to do something – publish the law – which is not his responsibility. As I explain above, the actual publication responsibility that he does have, i.e., publication in the state newspaper, is quite clearly not the publication that renders the law effective under Article IV, sec. 17 or sec. 991.11. We know that because the very statute that commands publication in the state paper references the 35.095 “date of publication” as an distinct act from which the deadline for publication in the state paper is calculated.
I am not sure that we have or have not “realized” that this is how it works in the past. There was a time when 14.38(10) did give actual publication responsibility to the LRB. My guess is that the process has generally worked worked without these questions being raised – it having been settled law from 1943 until Judge Sumi’s order that courts are not to interfere with the publication process and all of the duties – of both the Secretary and the LRB being entirely ministerial and closely cabined.
I’m afraid this is a little off-topic, but I am very impressed with the legal analysis in these posts and would like feedback on the following.
It is unclear to me exactly who can bring action and where the trial must occur under the Open Meetings Law. I have three areas that need to be cleared up,
1) Can any Wisconsin resident file a complaint, or must that person be a resident of the county where the alleged violation occurred?
2) It’s clear only the DA of the county where the meeting occurred can bring suit, along with the AG, but again can any resident of the State bring suit if their complaint is not acted on by the Dane County DA or the AG?
3) Does the trial have to occur in the county where the alleged violation occurred?
It seems to me that, depending on the answers, all three of the above issues could grant extra power to residents of Dane County, relative to the residents of any other county in the State of Wisconsin, in regards to challenging State law. For instance, if the trial must happen before a Dane County Judge (where presumably all meetings of the Wisconsin State Legislature occur), aren’t the voters from Dane County given an extra voice in whether a particular state legislative act might be enjoined, as they alone elect Dane County Judges? Doesn’t that violate the principle of every person having the same protections under the law?
Prof. Esenberg – in your legistlative history research, did you find any documentation explaining why the legislature removed “publish” from the SOS’s duties?