Walker Sued by Wisconsin Unions as Law ‘Published’ in Defiance of Court
Wisconsin Governor Scott Walker was sued by two labor unions over a bill restricting collective bargaining by public employees while a state bureau published the law after the secretary of state was ordered not to do so.
A union representing public works employees in Wisconsin’s capital city of Madison and another for firefighters and other public safety officers seek in the state court complaint filed yesterday to have the law invalidated.
Walker signed the law March 11 amid public protests outside the Capitol and after 14 Democratic state senators had boycotted the legislative session in an attempt to deprive the chamber of the quorum required to consider measures with a fiscal impact. A joint committee drawn from both houses severed the measure from a larger so-called budget repair bill, enabling it to be considered separately.
“When the senate passed said bill on March 9, 2011, it did so without the presence of the constitutionally required quorum,” the union locals said in their complaint.
The legislation, championed by the first-term Republican governor, requires annual recertification votes for union representation and makes payment of union dues voluntary.
Wisconsin’s Legislative Reference Bureau published the law yesterday, a step toward its enactment. Stephen Miller, chief of the bureau, said in a phone interview that the publication didn’t mean the law would take effect.
The agency, established to provide bill-drafting and research services to the Legislature, cited a law requiring it to publish an act within 10 working days of its approval, and added a footnote that acknowledged a judge’s March 18 order to Secretary of State Doug La Follette not to publish the statute.
“This is a step in the process which is required by state law,” said Miller, who called it a “a ministerial act.”
The edition of the law printed by his office is then sent to the secretary of state, whose statutory duty is to publish notice of it in a newspaper, Miller said.
Walker’s office forwarded a statement yesterday from a cabinet 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 that statement. “The administration will carry out the law as required.”
The March 18 order preventing publication by La Follette was issued by Wisconsin Circuit Court Judge Maryann Sumi in Madison, the Dane County seat. The laborers’ lawsuit filed against Walker yesterday was brought in the same courthouse.
Dane County District Attorney Ismael Ozanne obtained the temporary court order after arguing its creators violated the state’s open meetings law. Ozanne, in a statement issued last night, said he was “surprised” to learn of the LRB’s action and said a court should determine its legal significance.
“I believe that, pursuant to Judge Sumi’s order, the status quo is preserved,” Ozanne said. A hearing on his request for a preliminary injunction is scheduled for March 29.
Ozanne last night had sought an emergency court hearing today to address the LRB’s actions, according to a statement issued by another Dane County court judge, Sarah B. O’Brien, through the office of state Attorney General J.B. Van Hollen.
‘Likely Questions Raised’
“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 the restraining order issued by Judge Sumi,” said O’Brien, the court’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 the bill 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.
A Madison lawyer said the publication may present a legal opening for the governor.
“Nobody really knows what this means but it appears that it is at least arguable that the law is now in effect,” said Robert J. Dreps, a member of the political law practice group at Godfrey & Kahn SC in Madison. “The other side will argue that the court has to decide if this was a valid publication.”
Bill Cosh, a spokesman for the Republican Van Hollen, said the Department of Justice “will evaluate how the lawful publication of Act 10 affects pending litigation.” Cosh declined to comment on the unions’ lawsuit.
The firefighters union said in its complaint that the law’s exemption for firefighters and police officers creates “unnecessary conflict among the employees and divisions within and among public sector labor organizations.”
Cullen Werwie, a spokesman for Walker, didn’t return a phone message seeking comment on the complaint.
Van Hollen asked a state appeals court to override Sumi’s temporary restraining order. On March 24, a three-judge appeals court panel referred the issue to the state’s Supreme Court, which hasn’t said whether it will take the case.
The union case is Laborers Local 236, AFL-CIO v. State of Wisconsin, 11cv1421, Dane County, Wisconsin, Circuit Court (Madison).
The prosecutor’s case is State of Wisconsin Ex Rel. Ozanne v. Fitzgerald, 11cv1244, Dane County, Wisconsin, Circuit Court (Madison). The appellate case is Ozanne v. Fitzgerald, 2011AP613-LV, Wisconsin Court of Appeals, District 4 (Madison).
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