Wisconsin Attorney General JB Van Hollen says the recently passed Budget Repair Bill, now referred to as Act 10 by State officials, is in full effect after publication Friday on the Legislative Fiscal Bureau's Web site. The publication of the new law via the LFB was deemed permissable by the Department of Justice because the Legislative Fiscal Bureau was not named in the suit that was filed in Dane County Circuit Court by District Attorney Ismael Ozanne last week. The DOJ believes that the LRB has full power to implement the collective bargaining restrictions in the new law due to State Statute35.095(3(a) that says the Legislative Fiscal Bureau has a ministerial duty to publish laws signed by the Governor within 10 days of passage. As a result, the Department of Justice, and particularly Van Hollen, has issued an appeal with the District 4 Appellate Court in Madison to vacate the temporary injunction issued by Judge Mary Sumi last week that kept the Secretary of State from putting the Act into law.
"These motions argue that the requested relief is appropriate because Act 10 is now in force due to its publication by the Legislative Reference Bureau on March 25, 2011. The Legislative Reference Bureau was not named as a party in the Ozanne case and was not bound by any order issued by the Dane County Circuit Court. Because the law is in force, the appeal, which was based on the harm caused by enjoining the legislative process, is moot. The briefs explain that the Secretary of State made a good faith attempt to comply with the temporary restraining order and did not cause the publication of Act 10," said Bill Cosh in a press release from the Department of Justice.
The appeal was issued yesterday and was not directed to the State Supreme Court as the Supreme Court has not officially accepted the case involving the original injunction and therefore has not yet become a conduit for settling the conflict. The DOJ's insistence on the LRB measure adds even more intrigue to a debate that runs on both sides of the aisle, with the Democrats, including LaFollette himself maintaining that the Secretary of State's Office has the sole authority to publish the law and Republicans maintaining that the Department of Justice is correct in its assessment of Statute 35.095. Legal scholars are divided in their opinions as well.
“It’s now my legal responsibility to begin enactment of the law," said Department of Administration Secretary Mike Huebsch during a Monday afternoon conference call. “It’s clear that for as many attorneys as you wish to ask you are going to get an opinion on this particular law and the status of it,” “We have looked at the statutes and are defining them as clearly as we can as it states in the statute as to the requirements that must be met.”
Meanwhile, Madison Judge Mary Sumi has convened the first hearing this morning on the injunction and has gone ahead with testimony regarding the lawsuit. Ozanne filed papers yesterday to motion Sumi to declare the LRB publication of Act 10 as not being an act of public law and include LRB in the injunction.
Legislative Reference Bureau Chief Stephen Miller today said he believes his agency has a distinct duty to publish new laws within 10 working days of their signature by the governor. But he also does not believe that LRB action alone implements the law.
"I did not think that this act of the LRB made the law effective," Miller said today during testimony in the injunction case.
The Department of Justice argued against Sumi proceeding with the injunction hearing. Assistant Attorney General Maria Lazar argued the court may not assert itself in the legislative process and that since Republican lawmakers in the suit have not been served and are not in the courtroom, their due process rights are being violated.
Huebsch says that all of the changes made the State Payroll program to implement the 5.8% contribution to pensions and 12.6% contribution toward health care insurance premiums and that the first set of checks to be printed with the changes will be on April 21st. However, if a State Court orders otherwise, the changes can be quickly undone.
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