I'm Sorry, My State Has Gone Crazy....

I'm from that mitten shaped northern State whose Governor has finally managed to get our State in the National news for something other than Football, tornados or serial killers.

The legislature passed (? or not - litigation pending) a law taking away public employees' right to engage in collective bargaining over anything other than whether we want wage increases that are less than, or equal to, the increase in the consumer price index since the last contract.  So much for public employee unions.

That law also stipulated that there would be major changes in the deductions taken out of State employees' paychecks.  In particular, with respect to my paycheck (I'm a public employee) the difference will be that I will be bringing home about $93.50/week less starting whenever the law takes effect.

The law can't take effect until it is published by the Secretary of State.  The DA in one county filed a lawsuit to prevent the Secretary of State from publishing law, alleging that the way that the law was passed violated our State's Open Meetings law.  A circuit court judge issued a TRO against the Secretary of State and ordered him not to publish the law until after the Open Meeting Law case had been heard and decided on its merits.  The State appealed the temporary injunction to the State court of appeals alleging that a circuit court judge doesn't have the right to prevent a law from taking effect. The Appeals Court referred the appeal to the State Supreme Court.  The State Supreme Court hasn't yet decided whether it will hear the case or not (the "case" in question is the appeal of the TRO pending the hearing in the circuit court on the merits of the Open Meetings lawsuit).

Meanwhile, the Legislative Reference Bureau (not the Secretry of State) which is not prevented from publishing the law by the TRO against the Secretary of State - published the law on a website today, despite the TRO preventing the Secretary of State from publishing it.

The Governor says, "Okay, now it is published, so now it is in effect and we will enforce it."  Other legal scholars and pundits say that publication by the Legislative Reference Bureau doesn't count as publication, so its not published yet, so it is not yet a law.

I'm just trying to figure out how much money is going to be in my next bi-weekly paycheck..

I'm extremely embarrassed for my State, which seems to have lost its collective mind, and I'm weary of the chaos that has permeated my formerly obscure and peaceful State in just a few short weeks.

Can somebody who knows more about how laws become laws than I please help me understand whether this law is or is not a law yet, ergo, whether my next paycheck will be $187 less than my last one - or whether the law hasn't taken effect yet so my paycheck will not yet be reduced?

Thank you.

The state isn't crazy.  The crazies are the voters who put the guy (and all the legislators who are in lock-step with him) in office and from what I've seen and heard, I'm pretty sure a lot of them feel like they made a huge mistake that they're trying to undo if they can.  With that said, there's nobody from your state on this site that would have any meaningful insight into what the specific process is or can be at this point.  That would take a careful study of all the government codes, caselaw and constitution.  What I would suggest is you speak to your union or a union that is involved.  I suspect they are getting revved up to take legal action too.  While I'm watching from afar, I can't imagine the state supreme court won't do something.  This is one reason why having an independant judiciary can be critical.  They aren't beholding to the governor, don't have to appease him to keep their jobs and they do have the power to stop him. 

LegalSecy:

Can somebody who knows more about how laws become laws than I please help me understand whether this law is or is not a law yet, ergo, whether my next paycheck will be $187 less than my last one - or whether the law hasn't taken effect yet so my paycheck will not yet be reduced?

Well, there is no federal Constitutional or federal statutory requirement for laws to be published before they are effective. Thus, federal bills become law the moment the president signs them; there is no requirement for federal law to be published first.

Thus, the answer to your question is one of WI law. The WI Constitution simply requires that laws in WI must be published before they are effective, but expressly leaves the details for publication to the legislature. For state laws, those requirements are found in WI statute section 35.095(3). Specifically, it says:

"(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.
(c) Copies of each act or portion of an act enacted by the legislature over the governor's partial veto shall be available on or before its date of publication to subscribers under s. 35.87 who pick up their documents. At appropriate intervals, the officer designated under s. 35.87 shall certify to the secretary of state that each act or portion of an act was available to subscribers on or before its date of publication."

The date of enactment is the day the governor approved it in this case, since the bill at issue was not one that was enacted over the governor's veto. WI statute 35.095(1). My take on the statute, the way it is drafted, is that the publication in no event could be more than 10 days after enactment, and that publication is arranged by the legislative reference bureau (LRB). The Secretary of State designates a day for publication, but the LRB must publish it by the tenth day regardless. So, my guess is that the 10 days ran and the LRB published it as it was required to do under WI statute 35.095(3)(a). My take on it is that the law is now effective with publication by the LRB, even though the Secretary of State never set a publication date. The statute does not seem to absolutely require the Secretary of State's approval before publication can occur. Whether the WI courts will agree with my analysis remains to be seen.

But that analysis aside, your the answer to your immediate issue is a political one. The governor is determined to move forward ASAP on instituting these changes to deal with the debt problem that the state and local governments have. He has an argument that the law is effective now that the LRB published it. I happen to think he's probably right on the publication issue, but even if it turns out he's not, at least for now he can go forward with implementing it until a WI court expressly says otherwise. I'd expect him to do just that, and implement it promptly. If the law is invalidated later, either because it was improperly enacted or improperly published, the state would then have to go back and fix it later.

Thanks.  The unions' view is in the Amicus brief it filed in the case.

All the relevant documents can be seen here http://thewheelerreport.com/ in the left hand panel, along with various lawmakers' and other organizations' comments on everything in the top panel.

This doesn't make it any easier to understand what is going to happen although I do appreciate TaxAgent's comment that:

Taxagent:

at least for now he can go forward with implementing it until a WI court expressly says otherwise. 

That's helpful - although I thought that a WI court had already expressly said otherwise. Judge Sumi, the circuit court judge, had said when she issued the TRO

"I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.  The next step in implementation of that law would be the publication of that law by the secretary of state. He is restrained and enjoined from such publication until further order of this court."

So to my untrained legal eye, it looks to me like there were 2 parts to Judge Sumi's TRO.  The first part was "restrain[ing] and enjoin[ing] the further implementation..." and the second part was implementation details of how she ordered the first part carried out. 

So maybe Judge Sumi should also have restrained and enjoined the LRB from publishing it as well, but given that she didn't, would the first sentence cover than (even tho not explicitly mentioned in the other 2 sentences) or not?

LegalSecy:

So maybe Judge Sumi should also have restrained and enjoined the LRB from publishing it as well, but given that she didn't, would the first sentence cover than (even tho not explicitly mentioned in the other 2 sentences) or not?

The problem is that the Judge's order can only be directed to the persons who are actually parties to the lawsuit. The defendants are four named persons, one of whom is the Secretary of State. The Governor was NOT a party to the lawsuit. Thus the reason for the second two sentences in her order. While she wants to restrain the implementation of the act as a whole, all she can do given the case before her is restrain the four named defendants. The only act she could enjoin was the Secretary of State's order of publication. Unfortunately, the way WI statute is drafted, the LRB has a ministerial duty to publish within 10 days after the governor's approval, whether the Secretary of State orders the publication (which, by the way, he did prior to the order and then rescinded after the court order -- and it's not clear he even has the authority to rescind it) or not. In my view, the Dane County DA who filed the suit didn't fully appreciate how the statutes worked and didn't frame the lawsuit as well as he perhaps could have. The Governor is not a party to that suit and he is not restrained from acting by the judge's order. The Secretary of State did his best to comply with the order and won't be found in violation if it. Now that the law is published, my view of the WI statute is that it is effective, and certainly the Governor can take that view and act until there is a court order telling him he can't.

Y'know, out of all the cacophony of pundits and commentators who are giving their opinions on what this all means (and trust me, there are scores of them!) this is actually the most clear explanation I've seen.

Thank you!

LegalSecy:

Y'know, out of all the cacophony of pundits and commentators who are giving their opinions on what this all means (and trust me, there are scores of them!) this is actually the most clear explanation I've seen.

Thank you!

Thanks. I'm not a pundit and don't play one on TV :-) I'm just a tax lawyer who is not in your state and has no particular stake in what is happening there. The advantage I have as a tax lawyer is that tax law has a very heavy procedural aspect to it. While procedure a dry subject for pundits and commentators, and one often overlooked, it is important to the outcome of disputes like this one. While not truly an administrative law issue, it does bear some similiarity to it. That might not have been fully appreciated so much by a DA used to criminal prosecution rather than administrative law type proceedings.

"It ain't over 'til its over."

http://www.channel3000.com/politics/27363072/detail.html

I still think that your outline of the issues was the clearest explanation I've seen to date.

Now all the procedural issues that you noted are exactly the subject of the plethora of cases that are being filed and argued. You need a scorecard to keep track of all the cases, motions, orders and appeals.

I'm still waiting to find out how much money (or absence thereof) is going to be in my next paycheck.

In case you missed it, the judge issued a "clarifying" order today regarding the temporary injunction already issued blocking any attempt to implement the law.  It said in part: "Apparently that language was either misunderstood or ignored, but what I said was ‘the further implementation of 2011 Wisconsin Act 10 is enjoined,' That is what I now want to make crystal clear." 

Additionally:  "Now that I've made my earlier order as clear as it possibly can be, I must state that those who act in open and willful defiance of the court order place not only themselves at peril of sanctions, they also jeopardize the financial and the governmental stability of the state of Wisconsin."

The governor is not above being slapped with a contempt citation....

gemini47:

The governor is not above being slapped with a contempt citation....

But Gemini, the judge's bluster not withstanding, I fail to see how the governor can be lawfully cited for contempt when the plaintiff set up the case by naming only four individuals as defendants—none of whom are the governor. It is a fundamental principle that the court only has jursidication over the parties to the case before it, as you well know. Since the governor was not one of the four defendants (and neither was the state itself), the order could only have been directed at those 4 individual defendants. I think it likely that an appeals court would strike down sanctions against the governor for lack of jurisdiction should the trial judge seek to go that route.

As a follow-up, the remarks you quoted, which appears in the news stories, were apparently delivered from the bench, as an explanation of her amended TRO. The actual language of the amended TRO, however, is directed specifically to the Secretary of State, one of the actual parties to the case. This reflects what I suspect the judge well knows, and what I said from the outset: while the judge wants to restrain any act of implemenation, she is limited in what she can do based on the parties before her.

I'll also note that the Dane County DA has caught on to the problem I identified in my first comment that he was too limited in the defendants he named. He has now amended the summons and complaint to include, among others, the LRB. It still does not include the governor. Why? Because the governor has not yet done anything that would give the rise to a claim.

I thus stand by what I said before: this order does not enjoin the governor, and he cannot be held in contempt for violation of that order.

When I can detach myself from the personal frustration of it all, it does provide for fascinating court-watching.

One of the things that it is hard for me to comprehend is why a person's party affiliation or political outlook seems to figure so heavily into what that person sees as the relevant legal issues.  I'm sure that all the relevant players, or at least their legal advisors, have far better legal educations than I.  So why does it seem so predictible that virtually all the liberals see the relevant legal issues one way and virtually all the conservatives see the relevant legal issues a differrent way?  I just don't get that.

Obviously I have my own feelings and political views, but I always thought that legal matters were somehow separate from political ones. Even to my untrained mind I think I can still tell when it looks like the party that I hope or wish would win seems to have the weaker legal case, and vice versa. 

I was always taught that courts don't decide moral issues; they decide legal ones and the two aren't coextensive.  I remember one professor illustrating this point by suggesting that almost nobody would think that there is anything morally or ethically acceptable about deliberately hurting your best friend's feelings, but there isn't, and never could be, a law against doing so.  The other side of the coin was that there is nothing morally or ethically "better" or "worse" about driving on the right hand side or the left hand side of the road, but every nation with traffic laws has a law about this, one way or the other.

Oh well, stay tuned.  I have a feeling this huge mess will take a long time to sort out.

LegalSecy:

I'm sure that all the relevant players, or at least their legal advisors, have far better legal educations than I.  So why does it seem so predictible that virtually all the liberals see the relevant legal issues one way and virtually all the conservatives see the relevant legal issues a differrent way?  I just don't get that.

Lawyers are paid to try, to the best they can, to achieve their client's goals. The lawyer may not be liberal, but if his client has a what might be considered a liberal goal, the lawyer will try to find arguments to support that. The same for lawyers representing the clients with the conservative views. It's a good practice to not associate a lawyer's personal views with the argument he makes in court. He may not subscribe to that view personally, but is arguing it solely because it advances his client's interests.

LegalSecy:

Obviously I have my own feelings and political views, but I always thought that legal matters were somehow separate from political ones.

Obviously, they are not mutually exclusive arenas. Politics involves matters of making law and applying law, and thus it's no surprise that issues with political import end up in the court room. Consider the way federal judges are confirmed by the Senate. If law and politics were completely seperate, political considerations wouldn't weigh on the questioning and the votes of the senators for judges. Clearly, however, they do. At least  as far back as the nomination of Judge Bork to the Supreme court the nomination hearings have been highly partisan, with the result that presidents try to pick the candidates that have an obscure enough record to avoid stirring up so much controversy that they can't get through the Senate. Then look at the Supreme Court rulings over the last two decades. On many cases where the issue can be defined in more or less liberal/conservative terms, the court splits in pretty predictable terms, with the liberal justices taking one view of the matter and the conservative justices another. That's not surprising; the justices bring their life outlook with them to their work on the bench. What is the "right" legal answer on the case before them is influenced by what they think the right outcome should be.

LegalSecy:

I was always taught that courts don't decide moral issues; they decide legal ones and the two aren't coextensive.

Law and morality are not coextensive. But neither are they mutually exclusive, either. Much of society's common moral views find their way into the law. The law generally bans nudity in public. Why? Because our society has a common moral value that nudity in public is wrong. Much of the common law, too, was based on moral principles. But in our modern, statutorily based criminal law system, if the law does not prohibit a particular act, a court will be unable to impose sanctions for that act even though the judge might find that act to be morally wrong.

http://host.madison.com/wsj/news/local/govt-and-politics/article_0abe773a-5ba2-11e0-a42c-001cc4c03286.html

...and this:

http://thewheelerrepor...