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.\u00a0 I admit that words are imperfect tools for the conveyance of meaning, and that oftentimes multiple interpretations of a text are possible.\u00a0 However, I reject the idea that all possible interpretations of a text are equally legitimate.\u00a0 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.\u00a0 If I did not believe in the possibility of discerning meaning in an objective manner, then I would not have become a law professor.<\/p>\n
The Wisconsin Constitution requires three things before legislation becomes \u201claw:\u201d 1) a bill passed by both houses of the legislature; 2) either the Governor\u2019s signature or a veto override; and 3) publication.\u00a0 The act of publication is a constitutional requirement, and no action of the legislature can become effective as law without this act.<\/p>\n
The Wisconsin Constitution leaves it to the legislature to decide the manner in which publication will occur.\u00a0 The legislature has passed various statutory provisions which, taken together, reflect the choice that it made.<\/p>\n
The \u201cdate of publication\u201d is the date designated by the Secretary of State (Wis. Stat. Section 35.095(1)(b)).<\/p>\n
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)).\u00a0 Chapter 35 specifically ties the date chosen by the Secretary of State under Section 35.093(3)(b) to the \u201cdate of publication\u201d in Section 35.095(1)(b).<\/p>\n
The legislative reference bureau is directed that it \u201cshall publish\u201d all of the laws within 10 working days after enactment (Wis. Stat. Section 35.095(3)(a).<\/p>\n
The text is clear that the Secretary of State has the power under the statute to effectuate \u201cpublication\u201d in the constitutional sense.\u00a0 The question is whether the legislative reference bureau has been given the independent power to \u201cpublish\u201d in the constitutional sense, or whether it merely \u201cpublishes\u201d in the sense of \u201cprinting\u201d copies of the laws in coordination with the Secretary of State\u2019s publication.<\/p>\n
It is significant that the above provisions of Chapter 35 are in a section entitled \u201cDefinitions\u201d and that these provisions are meant to provide definitions \u201cin this section.\u201d\u00a0 The following section, Wis. Stat. 35.15, refers to the duty of the legislative reference bureau to prepare a volume entitled \u201cLaws of Wisconsin,\u201d to include in the copy of the law the \u201cdate of publication,\u201d and to \u201cpublish the Laws of Wisconsin as expeditiously as possible.\u201d<\/p>\n
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 \u201cdate of publication\u201d chosen by the Secretary of State.\u00a0 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. \u00a0\u00a0\u00a0\u00a0<\/p>\n
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 \u201cLEGISLATIVE; CLASS 1 PRINTING.\u201d<\/p>\n
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.<\/p>\n
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.\u00a0 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).\u00a0 Both agencies charged with implementing Chapter 35, the Secretary of State\u2019s office and the legislative reference bureau, have publicly announced that this is the interpretation of the law that they follow.<\/p>\n
Against this interpretation, we are pointed to Wis. Stat. 991.11, which provides that the \u201ceffective date\u201d of a new law that doesn\u2019t specify a date when it goes into force will be the day after its \u201cdate of publication as designated under Section 35.095(3)(b).\u201d\u00a0 The argument, as I understand it , is that the effective date of new laws is tied back into the legislative reference bureau\u2019s duty to publish new laws within 10 days of enactment.\u00a0 Supposedly this empowers the legislative reference bureau to \u201cpublish\u201d a law in the constitutional sense.<\/p>\n
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.\u00a0 But it is not.\u00a0 In fact, Section 35.095(3)(b) is the section that specifies that it is the duty of the Secretary of State to \u201cdesignate a date of publication.\u201d\u00a0 Section 991.11 closes the loop by tying the \u201ceffective date\u201d back into the \u201cdate of publication\u201d set by the Secretary of State.\u00a0 It does not create a method for bypassing the Secretary of State.<\/p>\n
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 \u201cpublish\u201d in the constitutional sense.\u00a0 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.\u00a0 In sum, this is a case that requires the constitutional procedures for publication to be followed.\u00a0 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.\u00a0 However, at most these statements merely indicate that the legislature is free to pass a law choosing among various alternative methods of publication.<\/p>\n