Madness in Madison – A Government Divided

By YeOldeScribe ~ March 28th, 2011 @ 9:13 pm

Welcome back to PoliticalProgressives.com. For as crazy as Friday and this weekend was, not a whole lot changed today, the first work day after Wis. Gov. Scott Walker, Senate Majority Leader Scott Fitzgerald, and their Republican cronies posted the Budget Repair Bill online via the Legislative Reference Bureau. One thing we wanted to clear up quickly – in our previous post on this issue, we used the term “publish” when we refereed to the action taken by the LRB. To clear up any confusion, we will use the term “post” for that action instead. We’ve determined that only Secretary of State Doug La Follette has the authority to “publish” material, and that material should only be published in the official state newspaper, the Wisconsin State Journal. The LRB’s action, therefore, does not constitute a legal publication, and should not be called such. Hence, their action in merely a posting, not a publication as we incorrectly stated previously. (We’ll get into that more later on in today’s post.) We apologize for our error, and urge every single Republican out there to apologize for their errors in referring to the posting as a publication and the Budget Repair Bill as the Budget Repair Law.

About the only thing that changed was the official stance from the State government regarding the bill. Over the weekend, the official stance on the bill from Walker’s camp was wishy-washy at best, with the only statement being made saying that the governor and government would “uphold the law”, which could have been referring to the Budget Repair Bill or the laws of the land in general. Today, the Governor’s Office announced that they would start implementing the Budget Repair Bill as law, and the Attorney General also chimed in, saying that the bill is now law. Interestingly enough, Secretary of State La Follette still insists that the bill is a bill, and not law yet. We took a stab in our last post (linked above) trying to explain why we thought the Budget Repair Bill wasn’t law yet, and we were right – but if you need more proof, look no further than the Wisconsin Statutes:

“35.095 Acts. (1) DEFINITIONS. In this section:

(b) “Date of publication” means the date designated secretary of state under sub. (3).

(3) PUBLICATION. (a) The legislative fiscal 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.”

City of Madison Mayor Dave Cieslewicz, an all-around good guy, knows a thing or two about these statues, and sent his city attorney, Mike May, to do a little more digging. Here’s the conclusion May came to in a memo sent out today:

“The analysis above leads one to ask why the LRB went ahead and “published” the law.

Because the LRB is not the body in charge with or having the authority to make the Act effective, the LRB’s determination that sec. 35.095(3)(a), Stats., required it do to something called “publishing” the law March 25, 2011, is without legal consequence as to the effective date of the Act.

The LRB acted beyond its legal authority, however, since it could not into any published law a “date of publication” except as authorized by the Secretary of State. The LRB did this, using the date of March 25, 2011, with a curious footnote.

This footnote is incomplete at best and a direct misrepresentation at worst. The LRB fails to mention that the Secretary of State has rescinded the prior publication date. The first sentence is false. There is no “date of publication” as set by the Secretary of State.

It is difficult to determine why the non-partisan took this step beyond its authority, late on a Friday afternoon, with no notice to any person, and apparently at the urging of the Senate Majority Leader.

If the LRB felt compelled to “publish” the act on March 25, 2011, the LRB should have left the “date of publication” blank. The footnote should have explained that the LRB cannot determine that date and only the Secretary of State may do so, and there is no such date of publication from the Secretary of State. Failure to do so is a breach of LRB’s legal obligations. I urge the LRB to immediately issue an errata notice to clarify that there is no date of publication.”

A couple things we’d like to note:

1) We called this two days ago!

2) Fitzgerald is even more unethical and evil than we thought. In the link above, he is clearly bullying LRB Director Stephen Miller into doing what he wanted. Nowhere does it say that by posting the bill it would become law. Nowhere does Fitzgerald even let Miller know what he’s getting himself into. Instead, Fitzgerald (incorrectly) tells Miller that he’s legally obligated to do something, so Miller complies – and democracy dies.

3) The publication date that the LRB refers to in the note disregards a rescind notice sent by La Follette. Here’s how this went down: La Follette told the LRB the publication date would be the 25th. Judge Sumi then issued a restraining order against La Follette, barring him from publishing the bill into law. In accordance with that decision, La Follette sent a rescind notice to the LRB, notifying them that the bill was not published yet and would not be published on the 25th because of the injunction.

Everything about May’s argument makes perfect sense to us. The LRB doesn’t have the authority to turn bills into law, and it doesn’t have the authority to disregard a rescind notice sent by the Secretary of State, which it clearly did.

So what happens next? Tomorrow is a huge day in determining the status of the Budget Repair Bill. Tomorrow was supposed to be the start of the hearing on the Budget Repair Bill’s legality. One of the main issues at hand was if a judge could stop a bill before it was even law because it was passed in an unconstitutional matter. Now, there’s other issues that need to be addressed.

First, the state DOJ has filed a motion with the Dane County Circuit Court to drop and dismiss the restraining order against La Follette, because they believe the bill is law, and therefore the injunction is unnecessary. Ironically enough, the DOJ motion was filed “on behalf of La Follette”. Considering the DOJ and La Follette can’t even agree on if the bill is a law or not, we find it amusing that the DOJ is making legal motions on La Follette’s behalf (although La Follette probably doesn’t think it’s that funny). This means that Sumi will have to make a decision right away tomorrow on if the bill is law or not. If she says it is, the bill does become law – although for how long will be debatable, as we’ll discuss tomorrow. If she says it isn’t, then the hearing proceeds as scheduled, and Sumi will eventually rule either that the proposed law violated open meetings laws and is therefore unconstitutional and invalid, or that it’s legit – at which point, she’d lift the injunction against La Follette and the bill would become law.

Needless to say, check back tomorrow for more updates. We assume that Sumi will rule that the bill is still a bill and not law, based on her statements which we reported on Saturday. Regardless, tomorrow should bring the state some much-needed clarity as to the status of the budget repair legislation.

Until then, we leave you with this quote from Madison Mayor Dave Cieslewicz (we told you he was an all-around good guy): “We think the Governor has to follow the law and not make it up as he goes along.”

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