Wisconsin’s Walker Sued by Unions as Labor Law ‘Published’

recent developments...

Mar 26, 2011 9:29 AM CT - Bloomberg

Wisconsin Governor Scott Walker was sued by two labor unions over a bill restricting collective bargaining by public employees while a state bureau published the law after the secretary of state was ordered not to do so.

A union representing public works employees in Wisconsin’s capital city of Madison and another for firefighters and other public safety officers seek in the state court complaint filed yesterday to have the law invalidated.

...“When the senate passed said bill on March 9, 2011, it did so without the presence of the constitutionally required quorum,” the union locals said in their complaint.

...The firefighters union said in its complaint that the law’s exemption for firefighters and police officers creates “unnecessary conflict among the employees and divisions within and among public sector labor organizations.”

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District Attorney Ismael Ozanne, in a statement issued last night, said he was “surprised” to learn of the (Legislative Reference Bureau) LRB’s action and said a court should determine its legal significance. “I believe that, pursuant to Judge Sumi’s order, the status quo is preserved,” Ozanne said. A hearing on his request for a preliminary injunction is scheduled for March 29.

Ozanne last night had sought an emergency court hearing today to address the LRB’s actions, according to a statement issued by another Dane County court judge, Sarah B. O’Brien, through the office of state Attorney General J.B. Van Hollen.

...“There will likely be questions raised in the underlying lawsuit about the significance of the ‘publication’ by the Legislative Research Bureau in light of the existence of the restraining order issued by Judge Sumi,” said (Judge Sarah) O’Brien, the court’s designated on-call emergency judge yesterday. O’Brien declined to convene an emergency hearing, deferring to the scheduled March 29 event before Sumi.

http://www.bloomberg.com/news/2011-03-26/wisconsin-s-walker-sued-by-unions-as-labor-law-published-1-.html

Wisconsin Statutes: Violation of state statute 946.12 is a Class I felony.

http://law.justia.com/codes/wisconsin/2010/946/946.12.html

946.12
Misconduct in public office. Any public officer or public employee who does any of the following is guilty of a Class I felony:

946.12(1)
(1) Intentionally fails or refuses to perform a known mandatory, nondiscretionary, ministerial duty of the officer's or employee's office or employment within the time or in the manner required by law; or

946.12(2)
(2) In the officer's or employee's capacity as such officer or employee, does an act which the officer or employee knows is in excess of the officer's or employee's lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer's or employee's official capacity; or

946.12(3)
(3) Whether by act of commission or omission, in the officer's or employee's capacity as such officer or employee exercises a discretionary power in a manner inconsistent with the duties of the officer's or employee's office or employment or the rights of others and with intent to obtain a dishonest advantage for the officer or employee or another; or

946.12(4)
(4) In the officer's or employee's capacity as such officer or employee, makes an entry in an account or record book or return, certificate, report or statement which in a material respect the officer or employee intentionally falsifies; or

946.12(5)
(5) Under color of the officer's or employee's office or employment, intentionally solicits or accepts for the performance of any service or duty anything of value which the officer or employee knows is greater or less than is fixed by law.

http://www.gjs.net/946-12ss.htm

MADISON (WQOW) -- Assembly Minority Leader Peter Barca issued the following statement on the Legislative Reference Bureau's publication of the budget repair bill:

"In conversations this evening with Legislative Council attorneys, I was informed that it is their opinion, as well as the opinion of the Legislative Reference Bureau director, that Act 10 will not take effect based on the actions taken by the Legislative Reference Bureau late this afternoon.

"This bill has been under a cloud of suspicion since day one. Today's actions and statements are only perpetuating the problem. The people of Wisconsin expected that because of the court injunction, Act 10 will not be able to take effect.

"Official publication by the Secretary of State is required for this act to go into effect. The Secretary of State, the only Constitutional officer with the power to publish law, is prohibited by court order from publishing this Act.

"I can only hope that the confusion resulting from today's actions and comments does not harm the many communities and people who will be impacted if this does becomes law. The statements by the administration and legislative leaders only add to the confusion. We can only hope that their misstatements were not intentional or malicious."

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Rep. Barca based his statement on Wisconsin code s. 991.11, Stats. -- from a memo sent to him by Scott Grosz, Staff Attorney. the memo can be read here: http://www.wbay.com/Global/story.asp?S=14325853

While s. 35.095, Stats., refers to publication-related activities of both the LRB and the Secretary of State, s. 991.11, Stats., makes specific reference to the publication activities of the Secretary of State for purposes of determining the effective date of an act. Section 991.11, Stats., states that every act that 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), Stats. As described above, s. 35.095 (3) (b), Stats., refers to the publication activities of the Secretary of State, rather than the publication activities of the LRB. Accordingly, while certain statutory obligations regarding publication of Act 10 have been satisfied by the LRB, the statutory obligation that relates to the effective date of Act 10 has not yet been satisfied by the Secretary of State, and at this time the Secretary's actions remain subject to the temporary restraining order issued in Dane County Circuit Court.

SNIP

Most of the debate has been over who's right on this issue of who can pull the trigger, as it were, to make a law go into effect. (See our report for the details of the dispute.) But as we note in our story, the actual transcript of the judge's ruling seems much broader than that.

A transcript of the judge's ruling reads: "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."

I want to be clear that not only am I not an expert on Wisconsin state law but that each of these controversies seems to move the state further into uncharted legal and even constitutional territory. So every judgment must be tentative. But a plain reading of the judge's order suggests a very broad injunction. Not only did she bar the specific modality of implementation. She seemed to enjoin any steps to put the law into effect. "I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10." And if that's the case, all these technical questions on who can 'publish' the law seem moot.

SNIP

http://www.talkingpointsmemo.com/archives/2011/03/a_bit_more_detail.php#more?ref=fpblg