In a stunning twist, controversial legislation limiting collective bargaining for public workers was published on Friday despite a judge's hold on the measure, sparking a dispute over whether it takes effect Saturday.
The legislation was published Friday to the Legislature's website with a footnote that acknowledges the restraining order by a Dane County judge. But the posting says state law "requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment."
The measure sparked massive protests at the Capitol and lawsuits by opponents because it would eliminate the ability of most public workers to bargain over anything but wages.
The restraining order was issued against Democratic Secretary of State Doug La Follette. But the bill was published by the reference bureau, which was not named in the restraining order.
Laws normally take effect a day after they are published, and a top GOP lawmaker said that meant it will become law Saturday. But the nonpartisan legislative official who published the law disagreed.
"I think this is a ministerial act that forwards it to the secretary of state," said Stephen Miller, director of the Legislative Reference Bureau. "I don't think this act makes it become effective. My understanding is that the secretary of state has to publish it in the (official state) newspaper for it to become effective."
Walker signed the bill March 11. Under state law, it must be published within 10 working days, which was Friday.
The law has not been printed in the Wisconsin State Journal, the official state newspaper, as other laws are. Late Friday, State Journal publisher Bill Johnston said in an email that the notice for the law had been scheduled to run but had been canceled. He did not elaborate.
Senate Majority Leader Scott Fitzgerald (R-Juneau) claimed it didn't matter that it hasn't appeared in the paper.
"It's published," Fitzgerald said. "It's law. That's what I contend."
Fitzgerald and Miller met Friday. Miller said Fitzgerald asked him to publish the law and, after reading the statutes, Miller agreed that he could do so. He said he has never had something similar happen with the publication of a law during his 12 years running the reference bureau.
After the restraining order was issued on March 18, La Follette sent a letter that same day to the reference bureau rescinding earlier instructions to publish the bill on Friday. "I further instruct you to remove all reference to March 25, 2011, as the publication date and not to proceed with publication until I contact you with a new publication date," his letter said.
Walker's top cabinet official, Administration Secretary Mike Huebsch, gave only a brief statement reacting to Friday's news.
"Today the administration was notified that the LRB published the budget-repair bill as required by law," he said. "The administration will carry out the law as required."
Last week, Dane County District Attorney Ismael Ozanne, a Democrat, filed a complaint to block the law, saying a committee of lawmakers violated the open meetings law when they approved it. Republicans deny they violated the meetings law.
In her March 18 decision, Dane County Circuit Judge Maryann Sumi then issued the restraining order to prevent La Follette from publishing the law. But she also made a blanket statement that she was blocking the further implementation of the law.
"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," she said.
The Department of Justice appealed the restraining order, and on Thursday an appeals panel - without weighing in on the merits of the case - said the state Supreme Court should take up the matter. The high court has not yet decided what to do.
Bill Cosh, a spokesman for Republican Attorney General J.B. Van Hollen, said in a statement that no action of the secretary of state is needed for the reference bureau to publish the measure. Cosh noted that La Follette is not in violation of the restraining order because he did not direct the reference bureau to publish the bill.
"The Wisconsin Department of Justice will evaluate how the lawful publication of Act 10 affects pending litigation. We have no further comment at this time," Cosh said.
Also Friday, another lawsuit was filed over the law, bringing to three the total number of cases now pending.
Madison firefighters and public works employees filed suit in Dane County Circuit Court against Walker and the state seeking to block the law from taking effect, saying it had been passed in violation of the state constitution.
The Madison workers are using somewhat different arguments than those in other lawsuits, saying that the law treats some union workers unfairly compared to other workers. The law also violates constitutional provisions requiring that three-fifths of lawmakers be present to vote on certain financial bills, the lawsuit alleged.
"These provisions treat those employees who are represented by public-sector labor organizations in ways that are different in significant respects from the ways in which they treat employees who are not represented by any labor organization," the lawsuit reads.
The named plaintiff in the lawsuit is Jamie O'Brien, a public works employee who lives in Madison.
The Department of Justice declined to comment on the lawsuit. It followed actions by Ozanne and acting Dane County Executive Kathleen Falk and other county officials.
The budget-repair measure was meant to shore up the state's finances through June 30 but drew massive protests because of the collective bargaining changes. It stalled when Senate Democrats left the state Feb. 17 to block action on the measure. The state constitution requires 20 of 33 senators - three-fifths of the body - to be present to vote on bills with certain fiscal elements, and Republicans hold just 19 seats.
After three weeks, Republicans quickly convened a conference committee March 9 to strip appropriations out of the bill. They said the changes to the bill meant they no longer needed 20 senators to be present.
The four Republicans on the conference committee voted for the bill as they ignored shouts by the lone Democrat at the meeting, Assembly Minority Leader Peter Barca of Kenosha, that they were violating the open meetings law. The Senate passed it minutes later with no Democrats present as protesters jammed the halls of the Capitol.
Other provisions with financial impacts for the state, such as requirements that state employees pay more for their health and pension benefits, remained in the bill. Those provisions should have also required a vote by 20 senators, the lawsuit filed Friday argued. Republicans have also denied that claim.
The constitution requires the three-fifths majority for "any law which imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state."