March 29, 2011

"Publish or Perish: The Budget Bill is not Law"

In Wisconsin, a law can only take effect once it has been published. State law requires the secretary of state to designate a date to publish laws within 10 business days of the governor signing it. Makes sense? What, then, can be done if a judge has barred the secretary of state from publishing the law in the state's official newspaper (so that the law cannot take effect just yet)? Is it enough if the law is published by a state agentcy on a website, in this case that of the "Legislative Reference Bureau?" Is this to be counted as "publishing" in the relevant sense? The Walker administration says 'yes,' but Edward Fallone, a constitutional law professor at Marquette University, says 'no.' 
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.
Today, judge Maryann Sumi, made it clear, make that "crystal clear," that she sides with Fallone. The purpose of her earlier restraining order was to prevent any steps that would result in implementing the law.
"Apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear." (WSJ)
Assistant Attorney General Steven Means does not agree with the judge and said the legislation was "absolutely" still in effect. It's legislation by loophole in Wisconsin.

Update 3/31: Judge Sumi ordered today that the law "has not been published within the meaning" of state statutes and is "therefore not in effect"  (WSJ)." State Department of Administration Secretary Mike Huebsch still thinks the law was "legally published and is indeed law," but he has now agreed to stop implementing it "to abide by the court orders."

No comments: