Yesterday, I heard from a good source that the head of the LRB would never publish the bill under the current circumstances on their own-- that there was clearly pressure from Senate Majority Leader Scott Fitzgerald to publish the bill.
That is exactly what happened:
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 had never published a law without being given a date by the secretary of state during his 12 years of running the reference bureau.
This same source tells me that the LRB and anyone dealing with a court order has an obligation to follow it. You can't look at just one statute and justify a decision to defy a court order, acting on that one statute alone-- you have to look at all related statutes as a group. Clearly, when looking at all the related statutes any reasonable person would come to conclusion that the court order's intent was to stop all publication of the bill.
That is why State Senator Jon Erpenbach issued this strong Statement yesterday at 6 PM:
Senator Fitzgerald has used his position and ordered a non-partisan agency to get involved in a very partisan issue in publishing Wisconsin Act 10 (SS SB 11 - the Collective Bargaining Bill). It is unclear if this publishing by the Legislative Reference Bureau enacts the law without publication by the Secretary of State. What is clear is that Senator Fitzgerald's action ignored a temporary restraining order by a circuit court judge. Regardless of how Senator Fitzgerald feels, or what he thinks, there is no excuse for ignoring a court order and the judicial process.
My opinion is that the LRB privately believed that the bill wouldn't take effect and were simply humoring Fitzgerald and his clever legal strategery. That seems to be the case in their correspondence with Rep. Barca, where they state that their actions do not make the bill go into effect.
Whatever the case, it was still a clear violation of the court order for the LRB to publish the bill and standing up to a bully Majority Leader like Fitzgerald is part of the job. By allowing their arms to be twisted yet againg by Fitzgerald, it shows that the LRB is clearly no longer an independent agency. It also calls into question previous decisions made by the LRB in giving Fitzgerald the green light on his earlier, ill-conceived and improper legislative tactics.
Regardless of LRB's opinion of what there action means or doesn't mean, the Governor's office is proceeding as if the the law is in effect:
Walker’s office forwarded a statement yesterday from acabinet member saying the law would be put into effect.
“Today, the administration was notified that the LRB published the budget repair bill as required by law,”Department of Administration Secretary Mike Huebsch said in thatstatement. “The administration will carry out the law as required.”
Last night, Dane County District Attorney Ozanne sought an emergency hearing, but judge Sarah O'Brien punted, saying:
“There will likely be questions raised in the underlying lawsuit about the significance of the ‘publication’ by the Legislative Research Bureau in light of the existence of therestraining order issued by Judge Sumi,” said O’Brien, th ecourt’s designated on-call emergency judge yesterday.
“I am not taking any position on whether the LRB has effectively ‘published’ the act,” she said. “What ever the significance of it may be, the LRB acted today by putting thebill on its website. The bell cannot be ‘unrung.’”
O’Brien declined to convene an emergency hearing, deferring to the scheduled March 29 event before Sumi.
Bottomline: We have a judge punting it until Tuesday and a governor that says he will start enforcing it today.