Judge weighs whether Wis. union law took effect

By Todd Richmond

Associated Press

Published: Tuesday, March 29 2011 3:20 p.m. MDT

Wisconsin Secretary of State Doug LaFollette, left, and Dane County District Attorney Ismael Ozanne talk before a hearing in front of Dane County Circuit Judge Maryann Sumi at the Dane County Courthouse in Madison, Wis., Tuesday, March 29, 2011. With Republican Gov. Scott Walker's administration insisting a new law eliminating most of state workers' collective bargaining rights had gone into effect and other state and municipal leaders disputing that, many were looking to today's court hearing for some kind of clarity.

Michael P. King, Pool, Associated Press

MADISON, Wis. — A Wisconsin judge weighed arguments Tuesday about whether an order she issued intended to temporarily block the state's divisive new collective bargaining law was still in place, or whether Republican leaders had again outmaneuvered their opponents by using a legal loophole to achieve their goals.

During a hearing into one of several lawsuits challenging the legitimacy of Republican Gov. Scott Walker's law, Dane County Circuit Judge Maryann Sumi listened to attorneys for the state argue that it took effect on Saturday because a state office unexpectedly published it online Friday despite Sumi's order barring the secretary of state from publishing it in the state's official newspaper — typically the last step before a law takes effect.

Democratic Secretary of State Doug La Follette, Dane County Democratic District Attorney Ismael Ozanne — the plaintiff in the lawsuit being heard Tuesday — and the head of the office that posted the story contend that it did not become law because La Follette had not had it published.

Sumi had blocked off the rest of Tuesday and all day Friday to hear arguments, and was expected to rule afterward. Whether she decides it did or didn't become law on Saturday, the law's legitimacy will likely be decided by the state Supreme Court, which has not indicated whether it would take up an appeals court's request to hear the case.

If Sumi sides with the Republican attorney general's office, it would mark the second time the Republican lawmakers used a loophole to advance the law, which would strip most public workers of collective bargaining rights and which inspired large pro-union protests in and around the state Capitol. After weeks of stalemate, Republican senators passed the law after finding a way to vote on it without their Democratic colleagues, who had fled the state to deny a quorum.

Walker, whose refusal to bend on the collective bargaining issue earned him accolades among many conservatives and condemnation from Democrats and labor unions, was moving forward as if the law took effect. In addition to the collective bargaining issue, the law would require all public workers except police and firefighters to pay more for their health and pension plans, in what would amount to an 8 percent pay cut, on average.

The governor's top aide, Mike Huebsch, said Monday that the administration was preparing a computer program that would account for the new deductions and halt deductions of union dues from state workers' paychecks, starting April 21. He said the Department of Administration would stop that work if a court determined the law didn't take effect Saturday.

In a court filing Monday night, Ozanne asked Sumi to declare the statute had not become law by being posted online. He wrote that the secretary of state and the reference bureau must work in tandem to publish laws, and that one can't act alone.

"Mere electronic posting, absent the other steps, particularly the involvement of the secretary of state ... is itself meaningless and has no legal effect," wrote Ozanne, whose lawsuit contends that the Senate violated Wisconsin's open meetings statute because it didn't give the public enough prior notice before voting on the reconfigured law.

The attorney general's office had asked an appeals court to overturn Sumi's restraining order, but asked that court on Monday to withdraw the appeal and asked Sumi to cancel Tuesday's hearing because it believes the law took effect, making it a moot point. The appeals court denied the state's request Tuesday, saying it had already asked the Wisconsin Supreme Court to take the case, and is waiting to hear back.

Steve Miller, the head of the Legislative Reference Bureau, which posted the law online, testified Tuesday that as far as he knew, his office had never published a law without first getting a specific date from the secretary of state in his 12 years there. He said he doesn't think his office's posting of the statute made it law, saying that only happens once the secretary of state publishes a public notice in the state's official newspaper.

But he said he believes his office is legally required to publish laws within 10 days, even without a hard date, and that he doesn't believe the restraining order extended to his agency.

"I still think the duty (to publish within 10 days) is independent," Miller said.

Given the difference of opinions, the Wisconsin Association of School Boards told districts that are still negotiating with teachers not to take any official action until the courts resolve the dispute.

Walker has proposed more than $1 billion in cuts to schools, counties and local governments in his budget that would take effect in July. He has argued that the union concessions are needed to help make up for his proposed aid cuts.

Democrats and the unions contend that Walker's attack on collective bargaining was politically motivated attempt to severely weaken the unions, which tend to vote Democrat.

Associated Press writer Scott Bauer contributed to this report.

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