{"id":13096,"date":"2011-03-28T15:57:55","date_gmt":"2011-03-28T20:57:55","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13096"},"modified":"2011-03-28T21:40:01","modified_gmt":"2011-03-29T02:40:01","slug":"published-and-effective-another-view","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/03\/published-and-effective-another-view\/","title":{"rendered":"Published and Effective: Another View"},"content":{"rendered":"

\"\"<\/a>In an interview with Fox Cable News this morning, reporter Mike Tobin asked me if what we were seeing in Wisconsin was \u201clots of politics and little law.\u201d 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.\u00a0 For a profession that often relies on precedent to resolve textual ambiguities and conflicts, this creates not inconsiderable difficulty.<\/p>\n

My own view on whether the budget repair bill is different than that offered by Professor Fallone. My best answer is that it is \u201cprobably\u201d in effect. Here\u2019s why.<\/p>\n

<\/p>\n

Sec. 14.38(10) says that \u201c”[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 \u201cshall designate a date of publication\u201d and that this date of publication \u201cmay not be more than 10 working days after the date of enactment.”<\/p>\n

I think that the best reading of this is that the publication contemplated by the Secretary of State\u2019s 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 \u201cpublication\u201d 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<\/em> 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 \u201cdate of publication\u201d on which the act becomes effective because it may happen after<\/em> the date of publication.<\/p>\n

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 \u2013 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).<\/p>\n

This is, incidentally, a change from the version of sec. 14.38(10) which made the Secretary of State responsible for publication.\u00a0 The legislature, in other words, has changed the law.<\/p>\n

What makes me say that the bill is only \u201cprobably\u201d the case is that the Secretary of State has attempted to \u201crescind\u201d his publication date. \u00a0As 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 \u201cdate of publication\u201d 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\u2019s see where it takes us.<\/p>\n

The argument against effectiveness would be that there is no date of publication chosen by the Secretary because he has \u201ctaken it back.\u201d 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.<\/p>\n

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)\u2019s reference to the date of publication.<\/p>\n

All of this may seem overly technical and as a way of exploiting errors made by the Dane County District Attorney and the judge. \u00a0No one, however, has \u201cexploited\u201d anything. The LRB had to publish and, if I am right, the law becomes effective by that publication or by the Secretary\u2019s designation of March 25 as the date of publication.<\/p>\n

There are two lessons here. First, a close reading of the law matters. Second, mistakes happen when courts behave in a rash manner.<\/p>\n

It is questionable that Judge Sumi ever had authority to enjoin publication of the law. There is Supreme Court precedent that seems to say \u2013 quite clearly \u2013 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 \u2013 as opposed to a post-publication injunction against its enforcement – was necessary.<\/p>\n

Had these issues been more carefully considered rather than obscured by the hot house atmosphere in Dane County, we\u2019d have a less tangled situation.<\/p>\n","protected":false},"excerpt":{"rendered":"

In an interview with Fox Cable News this morning, reporter Mike Tobin asked me if what we were seeing in Wisconsin was \u201clots of politics and little law.\u201d 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 […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[3],"tags":[],"class_list":["post-13096","post","type-post","status-publish","format-standard","hentry","category-wisconsin","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13096","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=13096"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13096\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=13096"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=13096"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=13096"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}