Collective bargaining law published despite court order blocking it

2011-03-26T12:05:00Z 2012-05-23T17:45:48Z Collective bargaining law published despite court order blocking itCLAY BARBOUR and ED TRELEVEN |cbarbour@madison.com | etreleven@madison.com madison.com

The drama over Gov. Scott Walker's controversial measure limiting public sector collective bargaining took a sharp turn Friday when the Legislative Reference Bureau published the law — normally the last step before legislation takes effect.

But the surprise publication on the Legislature's website had lawmakers and their attorneys arguing over whether the law will be in force Saturday.

Walker's legislation has been stuck in court ever since he signed it two weeks ago, challenged by critics who say Republicans violated the state's open meetings law to pass the measure.

A restraining order prevented Secretary of State Doug La Follette from publishing the act. But the state constitution says only that laws must be published before they can take effect; it does not specify by whom.

State statutes require the secretary of state to set a publication date no more than 10 working days after a law is signed, while a related statute requires the Reference Bureau to publish legislation within 10 days of enactment.

Bill Cosh, a state Department of Justice spokesman, said no action by the secretary of state was required for the Reference Bureau to act, adding that La Follette did not direct the publication of the law and thus is not in violation of a temporary court order barring him from publishing the law.

And the governor and Senate Majority Leader Scott Fitzgerald, R-Juneau, said flatly Friday the law will take effect Saturday.

But officials with the nonpartisan Reference Bureau and the Legislative Council — the Legislature's drafting and research agency and its legal service, respectively — said publication of the act online was only an administrative step.

Reference Bureau Director Steve Miller and Legislative Council staff attorney Scott Grosz both said La Follette still needs to designate a date for publication and actually publish the act in the Wisconsin State Journal — something the court order bars the secretary of state from doing.

"This bill has been under a cloud of suspicion since day one," said State Rep. Peter Barca, D-Kenosha. "Today's actions and statements are only perpetuating the problem."

After he was ordered not to publish the law, La Follette sent the Reference Bureau a letter March 18 rescinding his instructions setting Friday as the publication date.

But Fitzgerald said attorneys have told him the letter has no standing.

"Every attorney I have consulted said this will now be law," Fitzgerald said. "It wasn't a secret. I think they left the door open for this."

Still, Dane County Circuit Judge Maryann Sumi's March 18 order appears broadly aimed at stopping the law from taking effect until questions about its passage could be addressed.

"I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10," Sumi said, according to a transcript. "The next step in implementation of that law would be the publication of that law by the secretary of state. He is restrained and enjoined from such publication until further order of this court."

If the bureau's action did constitute publication, it could make moot the state's appeal of Sumi's order, now before the state Supreme Court.

That could actually simplify the case that District Attorney Ismael Ozanne is seeking to make on the alleged open meetings violation if he doesn't have to worry about whether a judge has the authority to stop legislation before it takes effect, said Madison lawyer Lester Pines.

"I suspect that if Judge Sumi was willing to take up a (temporary restraining order) against publication I suspect she'd do the same thing on enforcement" of the new law, Pines said.

Pines said it would also open up legal channels for other groups who have been waiting to challenge the law but had to wait until it was enacted.

"This is going to unleash a tsunami of litigation," Pines said.

— The Associated Press contributed to this report.

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