Why the Budget Repair Bill (2011 WI Act 10) is law

The statutes demand it to be.

As I said in a comment earlier, no one seems to want to admit how a law is made. I will go through all the statutes below, but here’s the one very large point I have heard no one on either side make:

Do you really think the framers of our state legal system meant for the Secretary of State to have the final veto power over a law both the Assembly and Senate have passed and the Governor has signed?

That’s what the left is arguing when they say the law is not enacted until the SoS publishes it – that the SoS is the final word for lawmaking in Wisconsin. It’s a goofy argument anyone who suffered through a high school civics class should be able to repudiate, unless, of course, they don’t want to admit the truth.

This argument requires knowledge of the role of the Wisconsin Secretary of State. That job is specifically defined in Wisconsin Statute 14.38, Secretary of state, duties. Listed as one of the duties:

14.38(10)(c)
Publish in the official state newspaper within 10 days after the date of publication 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. Each certificate shall also contain a notice of where the full text of each act can be obtained. Costs under this paragraph shall be charged to the appropriation under s. 20.765 (1) (d).

The job includes a demand to publish a notice to the official state newspaper within 10 days after publication. The job does not include publishing the law. That falls to the Legislative Reference Bureau in Chapter 35.095:

(3) PUBLICATION. (a) The legislative reference bureau shall publish every act and every portion of an act which is enacted by the legislature over the governor’s partial veto within 10 working days after its date of enactment.

Prior to publication, the SoS designates a date within 10 working days:

(b) The secretary of state shall designate a date of publication for each act and every portion of an act which is enacted by the legislature over the governor’s partial veto. The date of publication may not be more than 10 working days after the date of enactment.

The word used is shall. It’s an imperative, not if he feels like it, or he agrees, or his campaign contributors will let him, but shall. There is an obligation to choose the date, just like in the statute above where the LRB has an obligation to publish.

Finally, the law is not enacted, that was done when the governor signed it, but the law takes effect according to 991.11:

Effective date of acts. Every act and every portion of an act enacted by the legislature over the governor’s partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated under s. 35.095 (3) (b).

Included in this law is 35.095 (3) (b) indicating the SoS shall choose the date for publication. Remember it is demanded the date for publication be within 10 working days. Implied is if the SoS does not choose a date prior to the 10th working day, then the 10th working day becomes the date of publication by the LRB and the law goes into effect the day after the publication date.

Again, put the common sense question to the test: Is the Secretary of State meant to have final veto power over any law enacted by the legislature and governor? Of course not.

What’s taking place today in Dane County Judge Mary Ann Sumi’s courtroom amounts to a kangaroo court. The SoS has no right to hold up publication of his notice; his notice has no bearing on whether or not the law takes effect. (Remember, the law was enacted when signed by the governor.) All I can see from this morning’s proceedings is that Sumi wants to pretend to be of importance.

Also, and this I’ve said before, the judge nor the SoS have the right to stand in the way of the law taking effect even if there was an open meetings violation. That law allows the act to be voided which is different entirely than trying to keep it from taking effect.

19.97 (3) Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred. However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.

The DA or AG would have to bring the action to court knowing the law was in effect, and only after a violation had been ruled. For that to happen under the current legal question would amount to Sumi declaring the sky is green. Not that she won’t, in fact I thoroughly expect her to stay true to her family ties, but it’s really only to her detriment as it discounts her reputation.

So in review, the law is published by the LRB, not the SoS, and it goes into effect the day after the date of publication (not working day), so that would have been last Saturday. The SoS has 10 working days from last Friday to publish a notice in the state paper of record.

What I would love to see? The SoS blow through that obligation and not do his job. Then he can be removed for cause.

I’m pretty sure there’s a law for that.

Comments

  1. Randy in Richmond says:

    It appears to me that the judge ruled on the process of a legislative body. Put another way, on that body’s rules and procedures. My thinking is the legislative body should have it’s own rules to deal with spats like this but in this case maybe not. But that doesn’t make it a legal issue–it’s still procedural and some legislative committee or body should have final authority. This would, in most cases, favor the party in power.

    And with your linked explanations along with a discussion on Greta (isn’t she from Wisconsin) last night on this subject, I believe it’s a law also. I still feel the Republicans know something, or think they know something, because of their quiet inaction.

  2. Another expert in WI jurisprudence. The debate resembles the minutia surrounding the relevant merits of March madness selections/or rejections. Walker’s team knew this would end up in the courts and they must have assumed they would prevail. Additionally as soon as the law is passed another round of suits are waiting. They did more than poke the bear, they used the “bomb”.

  3. Another man standing brave behind anonymity.

    It’s a pity, really, to believe so little in what you have to say that you won’t own those words.

  4. Is this more descriptive than R in R? How does this affect what I wrote. I don’t know how this will play out any more than the experts. You may well be proven correct.

  5. Randy in Richmond says:

    Didn’t say I was an expert–just giving my opinion and the reasons for it. Not liking a law doesn’t make one an expert either. I get the fact that there are those who don’t like the law but it should never be that those who negotiate public employee contracts do so with those they vote for or against. It is a flawed (and in many states illegal) process that could lead to a state or jurisdiction going deeply in debt and perhaps outrageous employee policies being enacted. Oh wait…

  6. And they are welcome to run court case after court case at the taxpayers’ expense. I just think it would be helpful to challenge something real instead of letting a judge make it up as she goes along.

  7. jimspice says:

    Well Cindy, it really doesn’t matter what you, or the attorneys, or the people for that matter, think. The ball is in the court’s court now. And the ruling is the law is enjoined. Now if G.Walker and the R majority feel they are above these paltry checks and balances, by all means, I hope they feel free to disregard the judges orders. It would make for a more interesting and enjoyable downfall.

  8. Not really, jimspice. The ball is in one court’s court. Then it can go up the appeals process as needed. There’s no downfall at risk for G. Walker and the R majority.

    From what I read in @news3jessica’s tweets this afternoon, the judge made it clear she did not rule BRB was not a law. I bet Sumi knows she’s in over her head. It will be interesting to see how she tries to get out of it. All we know for now is that there’s more drama on Friday.

    Here’s the order she gave today. Notice she crossed out the second paragraph.

    If I’m correct and the SoS gives an implied date if he doesn’t act, then all is still well. The SoS still has 10 working days from last Friday to give notice, so she’s really not holding up anything with her ruling.

  9. jimspice says:

    Bet ya dollars to donuts that G.Walker is too proud to sit on his hands though. No pesky judge can tell HIM what to do.

    And yes, I realize the matter before the court is very narrow in focus, and there is plenty of room to go from here, but TRO was put in place for a reason. I just don’t get it that all the law and order Republicans are just fine and dandy with all the thumbed noses at a legal writ.

  10. jimspice, Walker is in no way restricted from acting in any way according to the judge’s ruling. So what’s your point again?

  11. Randy in Richmond says:

    jimspice
    You mean ignore a court order like the Obama administration is doing with the Federal Judge in Florida re: Obama Care ?

    http://www.mediaite.com/tv/florida-federal-judge-rules-entire-healthcare-law-unconstitutional/

  12. interesting says:

    As I said before….Much ado about nothing!

  13. jimspice says:

    Making any move to implement the pending law would be in violation of the court order. That would include revoking union dues collection or charging more for benefits. He’ll do it anyway. Betcha.

  14. Oh jimspice…I think Randy got ya. :)

    No doubt collecting pension and insurance payments will be good for the budget, but the bit about not collecting mandatory union dues is huge. I’ll be that’s what the union bosses are all upset about. Now remember, all you state union members, get those dues in on time.

  15. Hey Spice, so given your view on this the federal government should immediately cease implementation of Obamacare. After all a federal judge declared it unconstitutional and has placed an order calling ofr everything to cease.