The Constitution and Democracy: What in the Election is Going On?!

On this blog I answer questions regarding Constitutional issues of significance in the democratic process. Archived articles focus on legal issues arising out of the passage of Act 10 in Wisconsin. Questions can be submitted to me directly at andrea@toholaw.com. While I will endeavor to answer all legitimate questions submitted, I reserve the right to ignore questions that are vague, overly argumentative, or outside of my areas of expertise. When I post an answer to a question, I will also note on facebook and twitter that I have added a post to this blog. I can be followed on twitter as amfhoeschen.

Friday, March 25, 2011

Can the LRB Publish the Budget Repair Bill?

Update 8:46 p.m., March 25:  The Legislative Reference Bureau is taking the position that it had a legal duty to publish the bill, but that its publication does not result in the budget bill becoming law.  Rather, the Secretary of State must also fulfill his duty to order it published before it can become law.  The LRB's position is at odds with the Governor's assertion that the bill is now law, but consistent with Judge Sumi's order enjoining not just the publication, but the implementation of the budget bill.  Should the Governor proceed with implementing the budget repair bill he may not be in violation of the judge's order (since he is not named as a defendant) but he would have no lawful basis for his actions, since the budget repair bill simply is not law.  See the LRB's explanation at:  http://www.wispolitics.com/index.iml?Article=231334

Let me first say that when lawyers do research and arrive at conclusions, they rely heavily on precedent, and nearly everything that has happened in the last few months in Wisconsin is unprecedented.  The latest is the Legislative Reference Bureau's publication of the the Budget Repair Bill despite Dane County Judge MaryAnn Sumi temporarily enjoining publication.  I'm going to go out on a limb and say that someone, possibly one of the Fitzgeralds, will be held in contempt of court.  I'm going to stay pretty close to the trunk and say there will be a court motion to challenge the effect of the bill's publication Monday morning. The Final paragraph of Judge Sumi's order 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."

While the court specifically restrains the Secretary of State, the first sentence doesn't limit the force of the court's order.  Furthermore, all parties to a legal action are generally bound to court orders in that action unless the court states otherwise, and the defendants in the action include the Fitzgerald brothers, Senator Micheal Ellis, and Rep. Scott Suder.  So, the question of the day, is who directed that the bill be published?  More to come as events unfold.

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