WISCONSIN LEGISLATIVE COUNCIL

Terry C. Anderson, Director

Laura D. Rose, Deputy Director

TO: REPRESENTATIVE PETER BARCA

FROM: Scott Grosz, Staff Attorney

RE: Legislative Reference Bureau Publication of 2011 Wisconsin Act 10

DATE: March 28, 2011

This memorandum summarizes our conversation regarding the effect of the publication of 2011
Wisconsin Act 10 (the Budget Repair Act) by the Legislative Reference Bureau (LRB) on Friday, March
25, 2011. Generally, as we discussed, it is my understanding that the LRB did not intend for its action to
independently determine the effectiveness of Wisconsin Act 10, and that further action of the Secretary
of State is required in order for Act 10 to take effect. This memorandum includes a brief summary of
communications between the Legislative Council Staff and the LRB following your inquiry, as well as
constitutional and statutory analysis and discussion relating to the publication of legislative acts. As
discussed below, it may be the case that the resolution of this issue now resides with the courts.
Nonetheless, the analysis in this memorandum identifies a number of factors that support the conclusion
that the publication of 2011 Wisconsin Act 10 was not completed by the actions of the LRB.

LRB COMMUNICATIONS
Following your initial inquiry on Friday afternoon, our office spoke with LRB Chief Steve
Miller. Mr. Miller indicated his opinion that the effectiveness of Act 10 is based on publication of the
Act by the Secretary of State, rather than publication of Act 10 by the LRB. He indicated that the LRB
published the Act in order to satisfy a statutory publication requirement that is separate from the
publication duties of the Secretary of State, and that such separate and additional publication by the
Secretary of State is required in order for Act 10 to take effect.

PUBLICATION OF THE LAWS OF WISCONSIN

The following sections of the Wisconsin Constitution and Wisconsin Statutes relate to the
publication of the laws of the state.

One East Main Street, Suite 401 • P.O. Box 2536 • Madison, WI 53701-2536
(608) 266-1304 • Fax: (608) 266-3830 • Email: leg.council@legis.state.wi.us
http://www.legis.state.wi.us/lc
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Wisconsin Constitution
Wisconsin Constitution, art. IV, s. 17, states, in part:

(2) No law shall be enacted except by bill. No law shall be in force until
published.

(3) The legislature shall provide by law for the speedy publication of all
laws.

Wisconsin Statutes

Section 13.92 (1) (b), Stats.

Section 13.92 (1) (b) (intro.) and 4., Stats., states:

Drafting section. The legislative reference bureau shall provide drafting

services equally and impartially and to the limits of its facilities and staff.
In the performance of its drafting services, the bureau shall:

4. Publish each act on its date of publication. Upon receipt of notice from
the secretary of state under s. 14.38 (10) (a), the bureau shall enter the act
number, date of enactment and date of publication of each act on the
camera-ready copy and deliver it to the contract printer for reproduction.
The copy shall identify material deleted from existing law by stricken
type, and material inserted into existing law by underscored type. In any
act published "vetoed in part", the material subject to the veto shall be
displayed in full but shall be identified by distinguishing marks. The
bureau shall make copies available on or before the date of publication of
the act. The number of copies printed, and the quality of paper used, shall
be as provided in the joint rules and as further determined by the joint
committee on legislative organization.

Section 14.38, Stats.

Section 14.38 (intro.) and (10) (a) and (c), Stats., states:

14.38 Secretary of state, duties. The secretary of state shall:

(10) Notices of proposed constitutional amendments and enactments.

(a) No later than the next working day following the deposit of an act in
his or her office, provide written notice to the legislative reference bureau
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of the act number and date of enactment, and the designated date of
publication of the act under s. 35.095.

(c) Publish in the official state newspaper within 10 days after the date of
publication of an act a notice certifying the number of each act, the
number of the bill from which it originated, the date of publication and the
relating clause. Each certificate shall also contain a notice of where the
full text of each act can be obtained. Costs under this paragraph shall be
charged to the appropriation under s. 20.765 (1) (d).

Section 35.095, Stats.

Section 35.095, Stats., states:

35.095 Acts.

(1) Definitions. In this section:

(a) "Date of enactment" means the day on which a bill becomes an act
through approval by the governor, passage over the governor's veto or
failure of the governor to act on it or the day on which a portion of a bill
which has been vetoed in part is enacted over the governor's partial veto.

(b) "Date of publication" means the date designated by the secretary of

state under sub. (3).

(c) "Working day" means each day except Saturdays, Sundays, and
federal and statewide legal holidays designated in s. 995.20.

(2) Numbering.

(a) Each act of a session shall be numbered consecutively commencing

with one. An act enacted by the governor's approval shall be numbered by
the governor at the time of approval. An act enacted either by passage
over the governor's veto or by the governor's failure to act upon it within
the time limit shall be numbered immediately by the chief clerk of the
house of origin.

(b) The person numbering an act under par. (a) shall note on it the date of
enactment and shall deposit it in the secretary of state's office no later than
the next working day following its enactment.

(3) Publication.

(a) The legislative reference bureau shall publish every act and every
portion of an act which is enacted by the legislature over the governor's
partial veto within 10 working days after its date of enactment.
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(b) The secretary of state shall designate a date of publication for each act
and every portion of an act which is enacted by the legislature over the
governor's partial veto. The date of publication may not be more than 10
working days after the date of enactment.

(c) Copies of each act or portion of an act enacted by the legislature over
the governor's partial veto shall be available on or before its date of
publication to subscribers under s. 35.87 who pick up their documents. At
appropriate intervals, the officer designated under s. 35.87 shall certify to
the secretary of state that each act or portion of an act was available to
subscribers on or before its date of publication.

Section 991.11, Stats.

Section 991.11, Stats., states:

991.11 Effective date of acts. Every act and every portion of an act
enacted by the legislature over the governor's partial veto which does not
expressly prescribe the time when it takes effect shall take effect on the
day after its date of publication as designated under s. 35.095 (3) (b).

ANALYSIS OF CURRENT STATUTES

Section 35.095, Stats., specifies obligations of both the LRB and the Secretary of State relating
to the publication of acts. Section 35.095 (3) (a), Stats., directs the LRB to publish every act within 10
working days after its date of enactment. Section 35.095 (3) (b), Stats., directs the Secretary of State to
designate a date of publication for each act, and specifies that the date of publication may not be more
than 10 working days after the date of enactment.

While s. 35.095, Stats., refers to publication-related activities of both the LRB and the Secretary
of State, s. 991.11, Stats., makes specific reference to the publication activities of the Secretary of State
for purposes of determining the effective date of an act. Section 991.11, Stats., states that every act that
does not expressly prescribe the time when it takes effect shall take effect on the day after its date of
publication as designated under s. 35.095 (3) (b), Stats. As described above, s. 35.095 (3) (b), Stats.,
refers to the publication activities of the Secretary of State rather than the publication activities of the
LRB.

Similarly, s. 13.92 (1) (b) 4., Stats., refers to receipt of notice from the Secretary of State prior to
certain publication activities by the LRB. Further, this section states that the LRB “shall make copies
[of an act] available on or before the date of publication of the act.” This latter statement supports the
position that action by the LRB alone does not satisfy the publication requirements of the Wisconsin
Statutes, since it clearly refers to the completion of certain tasks by the LRB prior to “the date of
publication of the act.” Additionally, as I understand, publication in the official state newspaper, as
required of the Secretary of State by s. 14.38 (10) (c), Stats., has yet to be satisfied. While this step may
follow designation of a date of publication by up to 10 days under s. 14.38 (10) (c), Stats., it is
nonetheless a part of the publication process as designated by law.
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Accordingly, while certain statutory obligations regarding publication of Act 10 have been
satisfied by the LRB, other statutory obligations relating to publication and the obligations that relate to
the effective date of Act 10 have not yet been satisfied by the Secretary of State, and at this time the
Secretary’s actions remain subject to the temporary restraining order issued in Dane County Circuit
Court.

DISCUSSION
In response to Friday’s LRB activity, portions of Milwaukee Journal Sentinel v. Wisconsin Dep’t
of Administration, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, have been cited by some in support
of the position that printing of notice of an act in the official state newspaper is not a necessary step in
the publication process. In Milwaukee Journal Sentinel v. Wisconsin Dep’t of Administration, the
Wisconsin Supreme Court discussed the publication requirement of Wis. Const., art. IV, s. 17. The
Court first addressed the purpose of the constitutional publication requirement. On that point, it stated:

General notice to the public of the laws by which all will be bound is the
policy that drives publication. [citing Clark v. City of Janesville, 10 Wis.
119 (*135), 141-42 (*181) (1859)]. Accordingly, if some action is argued
to be sufficient to constitute publication, that action must be evaluated in
light of the purpose publication seeks to achieve, i.e., was the public
provided with sufficient notice of the law that is being enacted or
amended.

2009 WI 79 at p. 32.

In the same opinion, the Court described its previous discussions of the constitutional publication
requirement, citing Sholes v. State, 2 Pin. 499, 511-12 (Wis. 1850), and the role of the Legislature as it
relates to the publication requirement. Id. p. 33. The Court stated:

It is apparent from this discussion that the legislative branch, which has
been vested with the legislative power under the Wisconsin Constitution,
has discretion in choosing how to comply with the publication
requirement. However, it is also apparent that, despite this discretion, the
legislature may not ignore the constitutional publication requirement
altogether. While we are conscious of the substantial deference we owe to
the other independent branches of government in the exercise of their
constitutional responsibilities, we are also conscious of our own
responsibility to determine whether the provisions of the Wisconsin
Constitution have been followed.

Id.

While the Court made clear that printing of an act may not be necessary in the context of the
constitutional publication requirement, it is not clear that the case supports the point that the current
statutory publication requirements have been satisfied. In Milwaukee Journal Sentinel, the Court
concluded that the Legislature had the discretion to determine the process by which laws would be
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published. Though not cited directly, this conclusion appears to simply affirm the legislative power
under Wis. Const., art. IV, s. 17 (3).

Under current law, the Legislature has exercised its discretion to pass the laws relating to
publication that are cited above. These laws include the specific reference to action by the Secretary of
State in s. 991.11, Stats., duties of the Secretary of State referenced in ss. 14.38 (10) and 13.92 (1) (b) 4.,
Stats., as well as the distinction between LRB publication activities and the date of publication in s.
13.92 (1) (b) 4., Stats. These statutory elements support the position that the laws on publication must
be considered together and do not support the concept of separate or parallel processes for publication.
If the Legislature intended for publication to be achieved solely by the LRB, it could have, for example,
specified an act’s effective date in s. 991.11, Stats., by cross reference to the LRB or the Secretary of
State.

The reference to legislative discretion in Milwaukee Journal Sentinel raises questions relating to
the separation of powers principles discussed in the oft-cited State ex rel. LaFollette v. Stitt, 114 Wis. 2d
358, 338 N.W.2d 684 (1983). Briefly, in Stitt, the Court held that it would not interfere with issues of
internal legislative proceedings, even those proceedings contained in statute, unless other constitutional
questions are raised by the legislative activity. The above discussion of Milwaukee Journal Sentinel
lends support to the notion that the publication is a legislative activity; in fact, its current placement in
Article IV of the Wisconsin Constitution also supports this result. However, Stitt originally related to a
statute requiring a committee report prior to action on a bill by a legislative body. In contrast,
publication may be properly construed as the last act of the Legislature or as an act that represents the
special case of transition from legislative activity. It is unclear that a court would extend Stitt in a
manner that would allow for the Legislature to disregard the statutory obligations that it has previously
chosen to constitute the publication process.

Further, Stitt indicated that the courts would involve themselves in legislative activities if
constitutional concerns were implicated. In Milwaukee Journal Sentinel, the Court identified the public
interest in publication; that the public has a right to notice of enactment of an act. Presumably, this
interest in notice includes the right to clarity regarding an act’s effective date and its initial applicability.

In the context of current laws on publication that define roles for both the LRB and the Secretary
of State, the LRB’s action, the temporary restraining order against the Secretary of State, the lack of
satisfaction of other statutory requirements, and the legal questions that are currently being litigated
regarding the ability of a court to entertain challenges to an act prior to that act taking effect, it may be
reasonable to conclude that a court would not apply the principles of Stitt to permit the disregard of
publication statutes when satisfaction of the public’s constitutional interest in notice is also in question.
Ultimately, given the circumstances listed above, the resolution of the question regarding the effective
date of 2011 Wisconsin Act 10 appears to reside with the courts.

If you have any questions, please feel free to contact me directly at the Legislative Council staff
offices.

SG:ksm