March 25, 2011

Scott Fitzgerald orders 2011 WI Act 10 printed

Senator's bold move constructively no different than visiting Kinko's

Word is Republican State Senate leader Scott Fitzgerald ordered the Legislative Reference Bureau to "publish" (scare quotes because "publication" did not occur) 2011 Wisconsin Act 10 (.pdf; 46 pgs.).

Obviously Republican State Senate leader Scott Fitzgerald is sufficiently aware there is currently a Dane County circuit court order in force preventing the Secretary of State from publishing the Act.

"Publish" and "publication" are legal terms of art referring here to a step in the legislative process immediately preceding enforceability.

There is a footnote purportedly justifying Republican desperado numero dos Scott Fitzgerald's "order" on the cover page of the Act citing Wis. Stat. §35.095(3)(a), which itself states:
[T]he [LRB] 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.
But I suspect "publish" doesn't mean publish in the sense that the Secretary of State is enjoined from doing, but rather publishing as in printing onto paper, as §35.095 resides in a subchapter of the statutes entitled, "LEGISLATIVE; CLASS 1 PRINTING." Therefore it's reasonable to wonder whether Fitzgerald is trying to pull a fast one (it's also reasonable to wonder that just because it's Fitzgerald).

Consequently, it's likewise reasonable to inquire into Scott Fitzgerald's intent, not just because he's Scott Fitzgerald this time but because of what the Supreme Court had to say in 2009:
[I]f some action is argued to be sufficient to constitute publication, that action must be evaluated in light of the purpose publication seeks to achieve, i.e., was the public provided with sufficient notice of the law that is being enacted or amended.
It's debatable if sufficient notice is even possible, given publication was enjoined by a court order in effect to this very moment.

And of course there are many uncounted other purposes, one of which is conceivably Scott Fitzgerald's capriciousness,** in trying to pass off "printing" as "publication." I wouldn't put it past him.

I don't believe this particular action constitutes publication at all.

The utter farce continues ... Welcome to Fitzwalkerstan.

* Of which Fitz should have knowledge, because there's a strong possibility it's going to facilitate his downfall in the Supreme Court.

** I leave it to others to characterize Fitzgerald's performance in less charitable terms, most of which are assuredly every bit as applicable.

eta 01 — Act 10 is unenforceable in its present posture:
[F]urther action by the Secretary of State is required in order for Act 10 to take effect.
Legislative Reference Bureau memo to Rep. Peter Barca (.pdf)

Seems to me it would have been easier just to call what the Legislative Reference Bureau did "printing" instead of "publishing" (subchapter headings aren't law, but they're a good guide). On the other hand, the LRB doesn't want to change the words of the statutes because they're straight arrows, and rightly so. Changing the words of the statutes is what the courts (and insolent bloggers) get to do.

eta 02 — A bit more here and here. And also here, which comes complete with a local wing-nut round-up and the inspired jape,
What Republicans do best: Turning an end around run into running into their own rounded rear ends.
Priceless, and funny 'cause it's true.

Much more here also.


Mutaman said...

Who is this guy Steve Miller? This doesn't sound like the smartest move on his part. Talk about throwing gasoline on the fire. On the other hand maybe in the next year or two he'll be running The Koch Brothers library. Thats the only thing that makes sense here.

Anonymous said...

Republicans regularly rail against "uncertainty" in the law, because it's "bad for business." So why, in the wide, wide world of sports would Walker, Fitz, et al., keep up these chaotic actions? Is it a smoke screen meant to hide some other nefarious doings?

illusory tenant said...

Winning, is what Charlie Sheen calls it.

Anonymous said...

Yeah, the "winning isn't everything . . . it's the only thing" notion has a lot going for it if you're Fitz. Once you have declared you are "supremely confident" that you have complied with the law "perfectly", it's a tad difficult to back off that position without loosing face. And there's the Conan credo in answer to the question, "What is best in life?" Namely: "Crushing your enemies. Seeing dem driven before you. Hearing da lamentations of da women."

Anonymous said...

Secretary of State Doug LaFollette was the only Democrat to remain in statewide office after the Republican victory in Nov. 2010. So to circumvent an independent Democrat, the Fabulous Fitzgeralds and their Disappearing Democracy Act simply went around the Democratic Secretary of State and had the law "published" by the Legislative Reference Bureau.

gnarlytrombone said...

Who is this guy Steve Miller?

Some people call him the Space Cowboy.

Display Name said...

I'm trying to think of a joke involving Fitz and the Pompatus, but I've got nothing. Pompatus of Rove?

Abdul Abulbul Amir said...


Here is a link to a law blog that seems relevant but off base.

Anonymous said...

According to State Statutes an unofficial publication of an Act is not enough to raise it to Law.

Wisconsin State Statutes specifically allow that an Act will only become Law the day after the "Secretary of State" officially "designates" a "date of publication".

The Secretary of State officially rescinded the March 25th date, in light of a Court Order.
Thus publication by the Legislative Reference Bureau (LRB), or anyone else, is
irrelevant towards officially raising the Act to Law.

Wis State Statute 991.11
"acts....shall take effect on the day after its date of publication..."

Wis State Statute 35.095(1)(b)(b)
" "Date of publication" means the date designated by the secretary of state..."

The states Legislative Reference Bureau (LRB) went ahead and published the Act online on March 25th.
The LRB cited a Statutory Law requiring a 10 day limit for publication as
one of their two reasons for their publication of the Act
(a request for publication by a Congressman Fitzgerald being the other reason).

However a Court Order, which has Restrained the Official Publication and Date Designation duties
of the Secretary of State, would also inherently and legally postpone temporarily that 10 day requirement.

Without Official Secretary of State designation any publication will be unofficial and
not raise the Act to Law. LRB has acknowledged this.


Congressman Fitzgerald, who requested LRB to publish the Act hoping to bypass the Sec. of State requirement as well as
bypass the Court Order, is a named defendant in the case which requested the Court Order. Fitzgerald has stated that
he thinks that now the Act is Law. Fitzgerald is mistaken

by milwjay