Questions of meta-law in Wisconsin

Things have been happening in Wisconsin lately. Here’s a brief recap, from memory:

1) Republicans swept into power in November – taking over both houses of the legislature and the governorship for the first time in … well, pretty much forever.

2) A special session of the legislature was called, and new Governor Scott Walker introduced a “budget repair bill,” allegedly to address a looming (and unconstitutional) budget deficit.

3) The budget repair bill included, among other things, provisions to bust public-sector unions.

4) The bill moved swiftly through committees in both houses of the legislature until all 14 Democratic senators fled the state, robbing the Senate of the quorum it needed to debate or vote on the bill.

5) Public employees and their allies took to the streets in Madison. Schools closed for three days in Madison while teachers protested.

6) The Democratic senators remained in Illinois for approximately a month.

7) The Republican legislators found a way to get the union-busting provisions passed without the absent Democratic senators.

8) The Dane County Attorney sued to prevent the formal publishing of the law, arguing that the circumstances of its passage violated an Open Meetings law.

9) A county judge granted a temporary restraining order preventing the Secretary of State from publishing the law, thereby apparently preventing it from going into effect.

10) The Legislative Reference Bureau (not the Secretary of State) nonetheless published the law on Friday.

11) Republicans claim that the law is now fully enacted because it has been published by the LRB despite the county judge’s TRO (which applied only to the Secretary of State).

Obviously, there’s a lot one could say about what’s been going on in Wisconsin. But there’s a nutty little technical legal dispute about events 9 through 11 – which have very little to do with the substance of whether public-sector unions are a good thing, or even whether the circumstances of the law’s passage are kosher. They concern only the technical matter of what it takes for an act of the Wisconsin legislature to become law.

First, a digression. Basically the first real brief I wrote as a lawyer was when I was “externing” at the US Attorney’s Office in Minnesota my third year in law school. I was responding to a prisoner’s petition for habeas corpus. As I recall -- and I could be mistaken on the details -- the prisoner was advancing the novel argument that the federal drug laws – 18 21 U.S.C. 841, specifically – were not actually “law” because the act in question did not begin with the words “BE IT ENACTED” as federal law requires. If you pull up the text of the law on Westlaw, sure enough you will find that those words are not present. And it is true that federal law imposes this technical requirement. But it turns out if you dig deep enough, and pull out the actual photocopy of the act (as I did), you will find those words. So the prisoner had his law right, but his facts wrong. I bring this up only as an example of the arcane meta-law that regulates how a bill becomes a law. Because this kind of meta-law is what is now at issue in Wisconsin.

The specific question is – who has the duty to “publish” an act under Wisconsin law--publication being the final step before the law can be enforced? Marquette University law professor Edward Fallone says it is the Secretary of State, and that the LRB’s publication of the law is irrelevant – unconstitutional, even:

The Legislative Reference Bureau is a research library service. They do not have the authority under the constitution to publish a law. And suggesting that now [the LRB publication] gives legal effect to the law, because they have in effect printed a copy of it, which is their job, to print copies of the law... it strikes me as a desperate move.

Rick Esenberg, another Marquette law professor, disagrees. He says that while it used to be the Secretary of State’s job to publish acts, now it is the LRB’s. And he points out that the Constitution does not give the Secretary of State power to publish laws; instead, this is a duty that the legislature had formerly delegated to the Secretary of State, but has more recently assigned to the LRB. Thus, according to Prof. Esenberg, the union-busting bill is law because the Secretary of State set a date for its publication (which is his only responsibility under law) and the LRB went ahead and published the bill on that date.

Professor Fallone responded to Professor Esenberg’s on Esenberg’s blog:

The Wisconsin Constitution requires that legislation be published before it becomes law. The legislature, in Section 35.095, gives this responsibility to the Secretary of State. There is no evidence that the text of Section 991.11 withdraws this responsibility or otherwise alters it (that section deals with the LRB's job to print and make available copies of the laws). There is no evidence that it was the intent of the legislature when it passed Section 991.11 to give it the meaning that you ascribe to the words. Most tellingly, there is no evidence that anyone in state government [sic] had ever interpreted Section 991.11 in the way that you suggest it should be interpreted until it became convenient for short term litigation purposes. Attempting to bypass the constitution's reuirement [sic] of offical [sic] publication is an unconstitutional action. The state legislature can, if it wants, amend the law in order to take responsibility for publication away from the Secretary of State. It hasn't done so, and no one (not even advocates who have argued for years that the Office of SOS should be abolished) claimed to believe that this responsibility had already been stripped from La Follette's office until this past Friday.

So, who has it right?

Well, Fallone seems clearly wrong that the Secretary of State is charged with the duty of publishing acts of the legislature, whether by law or by Constitution. In fact, Wisconsin law defines the Secretary of State’s role as setting the date for publication of the act, and just as clearly designates the LRB as the entity responsible for carrying out publication. This is Section 35.095(3) of Wisconsin meta-law:

(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.

(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.

So, the Secretary of State “shall designate a date of publication” and the LRB “shall publish” the act. Pretty darn clear. Fallone has lost some credibility.

But there is another relevant fact: although Secretary of State Doug LaFallette did designate March 25th as the date of publication, he later rescinded that designation after the county judge ordered him to halt publication. Professor Esenberg notes this, and correctly identifies the issue it creates: “Secretary LaFollette did attempt to rescind his designation of the publication date. The issue now becomes whether that means anything.”

Esenberg’s conclusion is that it does not mean anything because the county judge’s order “only enjoins [LaFollette] from doing something - publishing - that he had no power to do.” In any event, the law states that “the date of publication may not be more than 10 working days after the date of enactment” and that the LRB shall publish an act within 10 days after its enactment.  So it seems that the Secretary of State is powerless to prevent the LRB from publishing the act 10 days after enactment—whatever some judge says. Esenberg's point is simply that the Dane County Attorney named the wrong defendant in its effort to stop the law from getting published.

It's all kind of nutty. One thing is sure: we are pretty far from the substance of the debate in Wisconsin. And that’s a perfectly nice place to be these days.