Judge MaryAnn Sumi has once again ordered a halt to further implementation of Governor Walker's union-busting bill, but did not declare whether the Legislative Reference Bureau "publishing" the bill on Friday made it law,* or whether any party is in contempt by arguably violating Sumi's first order. How did we get here, and where are we going?

*update 8:15am March 31: Judge Sumi has amended her order [3] and now declares that Act 10 is not law. At 2:30pm, the Department of Administration announced [4] it would comply with the amended order.

How did we get here?

To recap, the union-busting bill ("Act 10") was passed by the Wisconsin Senate using a loophole that avoided quorum requirements, and in possible violation of Open Meetings laws. It then passed the House and was signed by Governor Walker [5] on March 11. Wisconsin Statutes Section 35.095(3)(b) [6] require that Secretary of State Douglas LaFollette designate a date for publication not more than ten working days after the date a bill is enacted, and he designated March 25, the 10th day. Section 991.11 [7] of the Wisconsin Statutes states that "every act ... shall take effect on the day after its date of publication as designated under [Section] 35.095 (3)(b)."

The First Hearing and Injunction

On March 15, Judge Sumi heard Dane County District Attorney Ismael Ozanne's suit alleging an Open Meetings law violation, and enjoined Secretary LaFollette from publication until a full hearing could take place on March 29. Sumi's March 18 order stated, "[t]he 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." (Attorney General JB Van Hollen appealed [8] the order to the Wisconsin Court of Appeals, which offered [9] the case to the Wisconsin Supreme Court, but the justices have not decided whether to take it).

The wrinkle is that the Secretary of State does not have publication authority under § 35.095(3)(b), as the court seemed to assume. Instead, publication under that section is assigned to the Legislative Reference Bureau (LRB), with § 35.095(3)(a) stating the LRB "shall publish every act ... within 10 working days after its date of enactment," without reference to the date set by the Secretary of State. On the same day Judge Sumi entered her March 18 order, Secretary LaFollette sent a letter [10] to the Legislative Reference Bureau revoking the March 25 publication date, and instructing the Bureau to not proceed with publication; it remains unclear whether the LRB's publication duties depend on the date set by the Secretary, or even if the Secretary can revoke a publication date. Also, while the Secretary of State has a separate responsibility under § 14.38(10)(c) [11] requring that the Secretary "publish in the official state newspaper within 10 days after the date of publication," it is not clear whether this separate publication has any legal significance under § 991.11.

Fitzgerald's Meddling and LRB "Publication"

On the morning of Friday, March 25, Senate Majority Leader Scott Fitzgerald ordered [12] the non-partisan Legislative Reference Bureau (LRB) to publish Act 10. The LRB was neither named in Judge Sumi's order nor in the DA's lawsuit, which arguably means the LRB was not subject to the order blocking publication; Fitzgerald was named in the lawsuit but likely has legislative immunity, so he is also not subject to the order.

As revealed in Tuesday's testimony [13], Fitzgerald told Bureau Chief Steven Miller that the LRB had a statutory duty to publish by March 25, despite the court order, and that Miller could call Kevin St. John at the Attorney General's office if he had questions. The LRB posted Act 10 after speaking with St. John, who told Miller the LRB could be subject to civil penalties for not publishing the bill. According to testimony, St. John did not tell the LRB he was second-in-command behind the Attorney General, whose office is defending Fitzgerald and other Republican legislators against the DA's suit.

Miller stated in testimony and on the day of publication [14] that he did not believe his office's move made Act 10 law. Wisconsin Republicans disagreed. As soon as the LRB posted the law on its website, Scott Fitzgerald insisted "it's published," and "it's law. That's what I contend." The next day, Governor Walker's Department of Administration began implementing the law (by, for example, issuing employee paychecks that don't collect union dues but do collect increased healthcare and pension contributions [15]). On Monday, March 28, Attorney General JB Van Hollen alleged that the LRB's publication makes the bill law, meaning DA Ozanne's suit trying to keep it from becoming law is now moot and, therefore, Judge Sumi should vacate her order.

March 29 Hearing

Judge Sumi rejected Van Hollen's request to vacate her order and started the full hearing on the District Attorney's case by considering the LRB's actions. In discussing her March 18 order, which restrained and enjoined further implementation of Act 10, she said "apparently that language was either misunderstood or ignored, but what I said was the further implementation of Act 10 was enjoined. That is what I now want to make crystal clear." Judge Sumi issued an amended order [16] at the close of the March 29 hearing restraining Secretary of State LaFollette from designating a date of publication (in addition to restraining actual publication), but does not add any additional parties to the order.

Judge Sumi did not find any individuals in contempt of court, nor did she make a decision on whether Act 10 has become law. The next hearing is scheduled for Friday, and the Attorney General's appeal is still awaiting review at the Wisconsin Supreme Court (which is not expected to consider the case until after the April 5 Supreme Court election).

Is Act 10 Law?

The second page of Judge Sumi's order [16] includes a paragraph declaring that Act 10 is not published and is not in effect, but the judge apparently crossed it out and initialed it. Judge Sumi likely wants more testimony on the matter during Friday's hearing. At 8:15am on March 31, Judge Sumi amended her order [3] to declare that Act 10 is not law. At 2:30pm, the Department of Administration announced [4] it would comply with the order and halt implementation.

However, determining whether Act 10 is in effect looks to be a question of law, not a question of fact requiring witness testimony. The primary question depends on the interaction of several statutes. The question looks to be whether a bill becomes law after the "physical publication" carried out by the LRB, or on the day after the "publication date" designated by the Secretary of State.

Judge Sumi may have (initially) declined to rule on this matter for two reasons. First, a ruling on this complicated matter of law could have given the Attorney General a new basis for filing a new appeal. Second, perhaps she wants more testimony to determine whether any parties can be charged with contempt of her March 18 order.

Is anyone in contempt of court?

If the Secretary of State had published the law after Judge Sumi's March 18 order he would have undoubtedly violated it. However, as stated above, the LRB was neither named in Sumi's order nor discussed in the lawsuit, and parties outside of lawsuits are typically not subject to restraining orders. An entity that acts at the direction of, or in collaboration with, a party to a lawsuit can be subject to a court order; however, it appears that the LRB acts independently. Perhaps witness testimony could shed light on the relationship.

Senate Majority Leader Scott Fitzgerald is named in the lawsuit but likely not subject to Sumi's order based on legislative immunity. Fitzgerald ordering the LRB to publish Act 10 to "further implement" it into law appears to violate a reasonable understanding of Judge Sumi's order. Unless a way around legislative immunity can be found, though, Fitzgerald may be off the hook.

Where are we going?

Friday, April 1 is the next hearing on the request for Act 10's permanent injunction for an Open Meetings violation. The Wisconsin Supreme Court is not likely to consider the Attorney General's appeal until after the April 5 elections, at which point additional points of contention will likely have arisen.

Regardless of what happens, the legal battle will not end on Friday.

Assume Judge Sumi finds that Open Meetings laws were violated and enjoins the Secretary of State from publishing and setting a publication date. The Wisconsin Supreme Court could reverse if it decides that a judge cannot prevent a law from taking effect (even if a court can overturn a law once it is passed). It could also reverse by finding that Open Meetings violations cannot be punished by voiding legislation.

Fitzwalkerstan will likely insist that Act 10 became law when the LRB published, and that Judge Sumi's ruling enjoining the Secretary of State does not change that. The Wisconsin Supreme Court may have to consider the question of what publication, or what date of publication, makes a bill law.

If Act 10 is considered "law" based on either the LRB's publication or because Judge Sumi cannot prevent a bill from becoming law, a new set of legal challenges will likely be filed. The Dane County District Attorney could file a suit on the same basis to void the law (assuming Open Meetings violations can be punished this way). Once the law is passed, affected parties would also have standing to bring additional lawsuits.

But the past month in Wisconsin has demonstrated that only the unexpected can be expected. The saga continues.