First up, Wis. Stat. 991.11, from which the latest hubbub derives, as there remains to complete the legislative process to 2011 Wisconsin Act 10 the one step — "publication"* — between the status quo and enforceability, the moment the Act is released to the various wiles of Gov. Scott Walker. The Act is currently subject to the wise and cautious shepherding of WISGOP Senate leader Scott Fitzgerald, who is devising any manner of chicanery to hand the thing off to Walker.
(He said he got this brainstorm from reading a newspaper article.)
Effective date of acts. Every actStricken are the bits that aren't germane here, but remain legible so you can still read them if you
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 effectshall take effect on the day after its date of publication as designated under s. 35.095 (3) (b).
Anyway, first notice that while there is a 35.095(3)(a), the effective date of acts provision (991.11) does not make reference to it.
[PUBLICATION] The legislative reference bureau shall publish every actThat's the "publication" (or "printing," as this space would contend) Republican Senate leader Scott Fitzgerald claims substitutes for publication for the purposes of 991.11. But it has nothing to do with 991.11. Here is the relevant — the operative — provision to 991.11:
and every portion of an act which is enacted by the legislature over the governor's partial vetowithin 10 working days after its date of enactment.
PUBLICATION The secretary of state shall designate a date of publication for each actNow the secretary of state did (for he "shall") at one point designate a date of publication for the Act, but on March 18, he rescinded it in compliance with the Dane County circuit court's temporary restraining order, which prevents the secretary of state from publishing the Act.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.
As for the date of publication being not more than 10 working days after the date of enactment, there is no reason why the secretary of state may not designate one retroactively, if and when the court order is lifted. In the meantime the secretary of state is enjoined from so doing and places himself in peril of contempt by acting.
The point is that publication by 35.095(3)(a) (what Scott Fitzgerald "ordered") does not fulfill the requirements of 991.11. It still remains for 991.11 to be satisfied and so in nowise might it be said that 2011 Wisconsin Act 10 has taken effect, nor that it is enforceable.
Sen. Fitzgerald and now Secretary of Administration Mike Huebsch are completely unmoored from the text, as Clarence Thomas might say, although Sec. Huebsch is considerably more circumspect about the whole affair than is the supercilious bluster of Sen. Fitzgerald, with his "supremely confident" and "perfectly" adhering to the law.
I don't expect this one to end well for Big (nor Little, ultimately) Fitz.
* Scare quotes are trending. I used them precisely this way last night and today they appeared in Dane County circuit court "duty judge" Sarah O'Brien's March 25 memo** (.pdf; 2 pgs.). Betcha she scanned the subchapter heading also: LEGISLATIVE; CLASS 1 PRINTING.
By comparison to the subchapter heading, "publication" is a sub-sub-subchapter heading, and its meaning there is informed by 991.11, because 991.11 sends you to 35.095(3)(b) in the first place. Thus does the "publication" in 35.095(3)(b) have the meaning 991.11 gives it, and that meaning is as a formal step in the legislative process, that moment the Act becomes owned by the executive branch.
This "publication" — date of, to be exact; it's a linear, timeline companion to date of enactment, when the governor approves the Act — is within the authority of the secretary of state. It's not the same "publication" as the one in 35.095(3)(a), that publication in the legislative reference bureau's provisionally separate authority.***
And the one that is not implicated by 991.11, the one upon which Scott Fitzgerald and his merry Republican-for-hire attorneys are mistakenly relying (we'll see how that goes on Tuesday morning).
There's a reason why 991.11 explicitly points at 35.095(3)(b) and explicitly does not point at 35.095(3)(a). Because the secretary of state's publication is substantively functional in the legislative process — it's a scheduling milestone, if you will — whereas the legislative reference bureau's is a function of records-keeping: it's a recording of the milestone that was made by the secretary of state.
And since the secretary of state is the subject of a temporary restraining order, he cannot make the milestone and therefore the LRB's recording is blank, so to say, in the substantive legal sense.
I guess you might even call that a "primer" in statutory construction. Although I wouldn't as I'm not purporting to "teach" anybody, only show you so you can see and think and work it out for yourself.
Finally, they could clean up the whole mess by changing the "shall publish" in 35.095(3)(a) to "shall print." Get on it, Sen. Grothman.
** See Footnote 1.
*** i.e., "CLASS 1 PRINTING."
Scott Fitzgerald orders 2011 Wisconsin Act 10 printed
Scott Fitzgerald had better hope he's wrong
The Milwaukee Journal-Sentinel is