Sunday, March 27, 2011

Determining the law in Wisconsin isn't as easy as it used to be.

Oyez! Oyez! Oyez! The Court of the Cheddarsphere is now in session.  Today's case Foley v. Esenberg.

The point is that publication by 35.095(3)(a) (what Scott Fitzgerald "ordered") does not fulfill the requirements of 991.11. It still remains for 991.11 to be satisfied and so in nowise might it be said that 2011 Wisconsin Act 10 has taken effect, nor that it is enforceable.
In an odd twist, the law was nevertheless published today and will become effective tomorrow. This isn't defiance of the judge's order by the Republicans or Scott Walker. They didn't do it. It's not defiance of the law at all. It seems to have been mandated by the law.
The question before the court is, of course, whether or not Governor Walker's budget repair bill is or isn't now law based on its "publication" by the Legislative Reference Bureau on Friday.  Esenberg says it is and Foley says it is not.  If you read the two complete posts you may be able to draw your own conclusion.  Such a conclusion might even be totally uninformed by your prior partisan leanings, but I wouldn't hold your breath.

Normally, I wouldn't be concerned that two lawyers can't seem to agree on a matter of the law.  After all, that is what we have courts and judges for.  In this case, however, even that recourse seems out of reach.  We have a judge in Madison who issued a restraining order related to the law and we have state supreme court race which has for all intents and purposes a referendum on the Governor and this particular law.  For a nation that has the rule of law among its foundational principles, this is a very bad sign

In this case, we can't even agree on whether or not the particular words voted on by the legislature and signed by the Governor are, in fact, law in the state of Wisconsin.  Add to that even if (when?) the Supreme Court rules definitively that this particular Act is or isn't the law, a substantial number of people will see the ruling as incorrect.

Generally, I'd say that the hand-wringing about the polarized partisan nature of our politics is overblown.  At the same time we should not underestimate the negative consequences of having the law descend into just another partisan battleground.


Cindy K. said...

I think what I've gleaned from all this is that Wisconsin's tradition of what makes a law isn't what actually makes a law.

I've read through the four relevant statutes myself. No where does it say the SoS publishes. He'd chooses a date for publishing; he gives notice after publishing, but only the LRB publishes. Another statute then says the law, if not otherwise described, is valid the day after publishing. Not the day after noticing.

Really fascinating stuff. Who would have guessed?

Jeremy R. Shown said...

So why do a judge and the DA in Dane county think that the SoS has publishing duties?

Dad29 said...

The judge did not read the applicable statute. And, of course, the DA didn't, either.

Sorta like looking at the wrong stoplight. It'll get you into trouble, sooner or later.