Judge: Wisconsin Anti-Union Law Not Validly Published, Not In Effect

In the latest legal volley in Wisconsin over Gov. Scott Walker’s new law curtailing public employee unions, Dane County (Madison) Judge Maryann Sumi issued on Thursday morning an amended restraining order, declaring that the law has not been validly published in order to take effect — following efforts by the state Republican leadership to sidestep her earlier orders against publication by going through different agencies.

The key quote from Sumi’s newly amended temporary restraining order, via The Wheeler Report:

FURTHER, based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011 evidentiary heaving, It is hereby DECLARED that 2011 Wisconsin Act 10 has not been published within the meaning of Wis. Stats. §§ 991.11, 35.095(1)(b) and 35.095(3)(b), and is therefore not in effect.

This followed a declaration on Wednesday by Secretary of Administration Mike Huebsch, stating that the law was still in effect, despite two different orders by Sumi to block it, and maintaining that the law was validly published and that Sumi’s order did not apply to his department.Two Fridays ago, Judge Sumi blocked the law on procedural grounds, issuing a temporary restraining order on the grounds the plaintiff, the Dane County District Attorney, had a likelihood of success in his complaint that a key conference committee used to advance the bill — and to get around the state Senate Dems’ walkout from the state — had violated the state open-meetings law by failing to give proper 24-hours notice. The judge’s order “restrain[ed] and enjoin[ed] the further implementation” of the law, including the prevention of Secretary of State Doug La Follette (D) from publishing the act in the Wisconsin State Journal. The State Journal acts as the state’s official newspaper for the purpose of giving the public official notice of new laws — the final step for the law to take effect. That decision is now going through an appeals process, which remains up in the air.

This past Friday, however, state Republicans had the bill published by a different state agency — the Legislative Reference Bureau, which handles drafting and research for the legislature — according to the LRB’s statutory requirement to publish legislation within ten days of enactment. Notably, the LRB itself has said that this publication does not constitute action that would put the law into effect. But state Republican leaders, including Walker’s office and the state Attorney General, say that the law is now in effect.

And on Monday, Huebsch announced that he was now carrying out the law, with government employees’ paychecks starting on April 21 to contain deductions for contributions to their health care and pensions — and to no longer deduct union dues.

Then on Tuesday, Sumi issued another order to block the law — and Assistant Attorney General Steven Means, who worked for Republican Attorney General J.B. Van Hollen, said the law would still hold:

“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,” she said.

But minutes later, outside the court room, Assistant Attorney General Steven Means said the legislation “absolutely” is still in effect.