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Wisconsin union law published despite court order (UPDATE)

Wisconsin Secretary of State Douglas La Follette (right) talks with his attorney, Roger Sage, as he leaves court March 18 during a hearing in Dane County Court in Madison. (AP Photo/Pool, Mark Hoffman)

Wisconsin Secretary of State Douglas La Follette (right) talks with his attorney, Roger Sage, as he leaves court March 18 during a hearing in Dane County Court in Madison. (AP Photo/Pool, Mark Hoffman)

Associated Press

MADISON, Wis. (AP) — Wisconsin Republicans insist that the anti-union law that sparked weeks of protests at the state Capitol and that is being challenged in court takes effect Saturday because a state office decided to post it online. The head of the office that posted it and a court order temporarily blocking the law’s implementation suggest otherwise.

The saga surrounding Gov. Scott Walker’s push to strip most public employees of nearly all of their collective bargaining rights took another unexpected, and confusing, turn Friday when the Legislative Reference Bureau posted the law online, despite a court order blocking its publication while challenges to the law are considered.

That order specifically bars Secretary of State Doug La Follette from publishing the law, which is the last step before a law takes effect. This is typically done by the Reference Bureau within 10 working days after it’s signed by the governor, on a date set by the secretary of state.

Walker signed the collective bargaining measure March 11 and La Follette initially designated Friday as the date of publication. But after the restraining order was issued, La Follette notified the Reference Bureau that he was rescinding that publication date.

La Follette said Friday that he didn’t know what the law’s online publication meant, and that he’s not taking any action because of the court order.

Ultimately, the state Supreme Court will likely decide the law’s fate. A state appeals court earlier in the week asked the Supreme Court to take up one of several lawsuits challenging its approval.

Dane County Circuit Judge Sarah O’Brien refused to take up a request for emergency action made late Friday by the Democratic district attorney, Ismael Ozanne, saying there was no “critical urgency” in her addressing the posting because the temporary restraining order preserves the status quo. She said she didn’t know what effect the online posting had, and that the issue could wait until a previously scheduled hearing Tuesday in one of the lawsuits challenging the law’s legitimacy.

But Republican Senate Majority Leader Scott Fitzgerald, who said he went to the Reference Bureau with the idea, wasted no time in saying that the law’s online publication meant it would take effect Saturday. His brother, Assembly Speaker Jeff Fitzgerald, agreed, according to a spokesman.

“It’s my opinion it’s published, it’s on the legislative website, it’s law,” Scott Fitzgerald said. “It was clear to me after our discussions this morning, if it in fact it is posted and it says published and there’s a specific date on it, it would be very hard to argue this was not law.”

Steve Miller, the Reference Bureau’s director, disagreed, insisting that posting the law online was simply a procedural step and that the law wouldn’t take effect until La Follette orders it published in a newspaper.

“It’s not implementation at all,” Miller said. “It’s simply a matter of forwarding an official copy to the secretary of state.”

Scott Grosz, a staff attorney for the nonpartisan Legislative Council, said the law’s publication meets certain obligations under the law, but that nothing can happen until La Follette acts.

“And at this time the secretary’s actions remain subject to the temporary restraining order,” Grosz said in a memo to Democratic Assembly Minority Leader Peter Barca.

Walker signed the collective bargaining measure March 11 and La Follette had designated Friday as the date of publication. But after the judge’s restraining order, La Follette sent a letter to the Reference Bureau saying he was rescinding the publication date he had set.

The Wisconsin Department of Justice issued a statement saying it would evaluate how the publication of the law, which it said was lawful, affects the pending lawsuit. The bureau’s action did not require anything to be done by La Follette and he was not in violation of the court’s order, the DOJ statement said.

The statement did not say whether the action means the law takes effect Saturday.

Ozanne, the Dane County district attorney whose lawsuit challenging the law led to the restraining order, said the bureau’s action didn’t change the status quo but ultimately it would be up to a court to decide what it means.

That lawsuit and two others allege lawmakers broke the state open meetings law by hastily calling a special committee meeting to put the bill in a form that the Senate could pass it without any Democrats present. All 14 Senate Democrats had fled the state three weeks earlier to block a vote on the measure by preventing quorum.

The new law requires nearly all public sector workers, including teachers, to contribute more to their pensions and health insurance, changes that amount to an average 8 percent pay cut. It also strips them of their ability to collectively bargain for anything except wages no higher than inflation.

Consideration of the proposal spurred massive protests that grew to more than 85,000 people the day after Walker signed the measure and made Wisconsin the national focus of the fight over union rights.
Union leaders were outraged with the latest twist in the ongoing saga.

“This is another sign that the governor and Legislature are in a desperate power grab to take away the voice of teachers, support staff, nurses, home health care workers and other public employees,” said Mary Bell, president of the statewide teachers’ union. “These tactics are not in the Wisconsin tradition of open government and do not represent the will of the people.”

Marty Beil, executive director of the state’s largest public employee union, said he didn’t think the action meant the law was going to take effect.

“It’s craziness. These guys are off the wall. They’re drunk with some kind of power or misconception of reality,” Beil said, referring to Walker and Scott Fitzgerald.

Phil Neuenfeldt, president of the Wisconsin State AFL-CIO, called the action an “illegal backdoor maneuver.”
“This is a dark day for Wisconsin and a travesty to our democracy,” he said.

Associated Press writer Todd Richmond contributed to this report.


  1. The Act has not become Law

    Wisconsin State Statutes specifically allow that an Act will become law the day after
    the “Secretary of State” officially “designates” a “date of publication”.
    The law provides no one else the power to designate the “date of publication”.
    Without the Secretary of States designation of a publication date the publishing
    of an Act doesnt have the legal power to raise an 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…”

    note: the Secretary of State notified the Legislative Reference Bureau (LRB) that
    march 25th will not be the Secretary of States Designated ‘Date of Publication’.
    note: LRB has acknowledged a restraining order exists against designation of such an
    official ‘date of publication’.

    Such an order restraining publication would inherently stay the 10 day publication time limit.

  2. WI Stat 911.11
    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).

    WI Stat 35.095(1)
    “Date of enactment” means the day on which a bill becomes an act through approval by the governor, passage over the governor’s veto or failure of the governor to act on it or the day on which a portion of a bill which has been vetoed in part is enacted over the governor’s partial veto.

    WI Stat. 35.095(3)(b)
    The date of publication may not be more than 10 working days after the date of enactment.

  3. Now, taking the statues in the proper context, as above, show me where in the statutues the Secretary of State has ANY perview, lattitude or implied legislative authority to designate the date of publication beyond the 10-days of enactment, given that EVERY act properly enacted will be given the same maximal consideration of 10-days for publication. There is no other interpretation without a political bent beyond precedent. Likewise, Marbury v. Madison precludes the District judge from ANY review.

  4. In this case, as well, the Secretary transmitted a publication date to the LRB. Then, after the Judge’s TRO, he transmitted a recision of that date.

    There is no authorization for the Secretary of State to rescind his transmission of publication without legislative direction to do so, if the act has already been properly enacted, without some obvious clerical mistake such as a date transmitted taht exceeds the 10-day statutory guidance. Otherwise, his recission is purely political and, Marbury v. Madison precludes the Judge’s direction for such a recission to be lawful.

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