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.