Unringing a Bell

(Via The Wheeler Report)

Wisconsin just keeps on with the crazy. You would think there would be little ambiguity about how a piece of legislation goes into effect.

The bill is passed, signed and becomes law.

But there's more procedure than that and the bill is not law until it is published.

And (following a complaint) Dane County Circuit Judge Maryann Sumi issues a temporary restraining order

I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.

Judge Sumi schedules a hearing for March 29, and goes out of the state.

As everybody now knows, the State's Legislative Reference Bureau publishes the Act with this disclaimer:

* Section 991.11, WISCONSIN STATUTES 2009−10 : 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” by the secretary of state [the date of publication may not be more than 10 working days after the date of enactment].

† Pursuant to section 35.095 (3) (b), Wis. Stats., the secretary of state designated March 25, 2011, as the date of publication for this act. On March 18, 2011, the Dane County Circuit Court enjoined the secretary of state from publishing 2011 Wisconsin Act 10 until further order of the court. Section 35.095 (3) (a), Wis. Stats., requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment.

Litigants rush to court and demand a temporary restraining order be issued to the LRB, making them “un-publish” and bizarrely, the GOP Majority leader makes multiple statements that the LRB publication puts the law in effect.

With Judge Sumi unavailable, it falls to Dane County Circuit Judge Sarah B. O’Brien to release a statement denying a temporary restraining order – because – as she puts it:

There will likely be questions raised in the underlying lawsuit about the significance of the “publication” by the Legislative Reference Bureau in light of the existence of the restraining order issued by Judge Sumi. I am not taking any position on whether the LRB has effectively “published” the act, nor on the effect of the LRB’s action in regard to a potential effective date of the bill. However there is no critical urgency to resolving those questions. Restraining orders are issued to protect the status quo. As Judge Sumi said in issuing the temporary restraining order enjoining publication of the bill on March 18, 2011: Finally, the necessity to preserve the status quo. I think relief is essential to preserve the status quo, which is what exists here and now. The bill has passed. But it has not been published.

1 I am using quotation marks around the word “published” to make clear that this is not a ruling on whether the Act has now been legally published.

Whatever the significance of it may be, the LRB acted today by putting the bill on its website. That bell cannot be “unrung”. Ordering that the bill be taken off the website, as I believe Attorney Ozanne would like to request, would have no legal significance. Therefore I am declining to hold a hearing in this matter

The judge is studiously avoiding the publication issue, but is implicitly saying that Judge Sumi's order preserved the status quo "which is what exists here and now." i.e. Ain't nothing changed, so I'm not issuing another order that will in no way affect the legal status of Act 10.

Taken as a whole you have a series of things that just don't follow each other so good:

• Judge Sumi restraining further implementation of Act 10
• a state agency doing something it is legally obligated to do and that has no implementation significance, 
• GOP leadership claiming that the law has been implemented
• and the WI Department of Administration Secretary saying his department is moving forward with implementing the Act

A very generous soul might excuse Sen. Fitzgerald's statements as mere grandstanding, but I would think the WI DoA would be flirting with contempt.

Madness.