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August 23, 2019

7/2/2019 7:30:00 AM
State Supreme Court upholds laws enacted in extraordinary session
Lame-duck laws live on, for the time being

Richard Moore
Investigative Reporter

On a 4-3 vote along ideological lines, the state Supreme Court last week reversed a lower court decision invalidating so-called lame duck laws enacted last December in an Extraordinary Session of the Legislature, a session that had been challenged as unconstitutional.

The League of Women Voters of Wisconsin and others had filed a lawsuit contending that the laws, which stripped incoming Gov. Tony Evers and incoming attorney general Josh Kaul of some powers, should be voided because the legislative session itself was illegal.

"We are disappointed the court ruled in favor of the Legislature's Extraordinary Session that undermined the Wisconsin constitution's limit on its power," Erin Grunze, the executive director of the LWVW, said. "Wisconsin voters put their trust in their Legislature to operate with transparency and to respect constitutional limits. As an organization dedicated to serving these voters, the League will continue the work of protecting the public's trust in the rule of law."

Two other lawsuits - one in state court and one in federal court that challenges the constitutionality of the laws themselves - are still pending.

Gov. Tony Evers was likewise disappointed.

"Today's decision is disappointing and, unfortunately, all too predictable," Evers said. "It is based on a desired political outcome, not the plain meaning and text of the constitution. The state constitution is clear. It limits when the Legislature can meet to pass laws. Our framers knew that no good comes from lawmakers rushing laws through at the last minute without public scrutiny."

The lame-duck session proves the framers were right, Evers said.

"This was an attack on the will of the people, our democracy, and our system of government," he said.

Not all Democrats agreed the case was so clear-cut, but Sen. Lena Taylor (D-Milwaukee) said the session was wrong nonetheless.

"Interpretation is everything and it matters who is doing the interpreting," Taylor said. "Bottom line, state law is vague on describing extraordinary sessions. However, that doesn't mean our values have to be vague."

The decision sets an awful precedent, Taylor said.

"An existing administration spitefully limited the power of an incoming successor, period," she said. "I learned a long time ago that just because you can do something, doesn't always mean you should."

However, Wisconsin Manufacturers & Commerce (WMC) commended the court for providing the state's business community with what it called greater regulatory certainty.

"Wisconsin's Legislature has been meeting in extraordinary sessions for decades, and it is unfortunate to see a sudden opposition to this practice simply because the plaintiffs oppose what was legally and constitutionally signed into law," WMC senior vice president of government relations Scott Manley said. "The state's business community needs certainty when it comes to Wisconsin's regulatory environment, and we applaud the State Supreme Court for upholding the rule of law."

The decision

Specifically, according to the high court's decision, the League argued that extraordinary sessions are unconstitutional and thus all legislation passed during the December 2018 session, as well as the Senate's confirmation of 82 gubernatorial appointees during the session, should be ruled invalid.

On the other hand, the Legislature argued that extraordinary sessions clearly conform with the Wisconsin constitution and state statutes, making the passage of the three laws as well as the appointments entirely lawful, the court decision stated.

The majority found the process by which the Legislature convened to be pretty straightforward and legal.

"We hold that extraordinary sessions do not violate the Wisconsin constitution because the text of our constitution directs the Legislature to meet at times as 'provided by law,' and Wis. Stat. 13.02(3) provides the law giving the Legislature the discretion to construct its work schedule, including preserving times for it to meet in an extraordinary session," justice Rebecca Bradley wrote for the majority.

The work schedule the Legislature formulated for its 2017-18 biennial session established the beginning and end dates of the session period and specifically contemplated the convening of an extraordinary session, which occurred within the biennial session, Bradley wrote.

"The circuit court invaded the province of the Legislature in declaring the extraordinary session unconstitutional, enjoining enforcement of the three Acts, and vacating the 82 appointments," she wrote. "We vacate the circuit court's order and remand the matter to the circuit court with directions to dismiss the League's complaint."

In the decision, the justices observed that the biennial session period for the 2017 Legislature began on Tuesday, Jan. 3, 2017, and ended at noon on Monday, Jan. 7, 2019.

The Legislature then adopted its work schedule in 2017 Senate Joint Resolution 1, the decision observed, which listed the dates of the 2017-18 session, set forth "scheduled floorperiods and committee work periods," and set the time frame for the "interim period of committee work."

The resolution also addressed "unreserved days" and provided that, unless reserved as a day to conduct an organizational meeting or to be part of a scheduled floorperiod, every day of the biennial session period was designated as a day for committee activity and was also available to extend a scheduled floorperiod, convene an extraordinary session, or take senate action on appointments as permitted by a joint rule, the decision observed.

In December 2018, pursuant to that resolution, the Legislature convened an extraordinary session and passed the three Acts that were subsequently signed into law by Gov. Scott Walker.

As legal as an eagle

The court majority said that process was as legal as could be.

For one thing, Bradley wrote, no one disputes that the constitution authorizes the Legislature to meet at the state capitol "at such time as shall be provided by law," and that "provided by law" means Wisconsin's statutes.

"Accordingly, the Wisconsin constitution authorizes the Legislature to lawfully meet when a statute so provides," Bradley wrote. "Wisconsin statute 13.02 is the sole statute addressing when the Legislature can meet."

While the parties delved deep into past practices of the Legislature, as well as a 1968 constitutional amendment, Bradley wrote, a historical review was unnecessary.

"There is no dispute as to the meaning of the governing constitutional text, which requires the Legislature to meet at such time as provided by statutory law," she wrote. "The controversy centers on whether the text of Wis. Stat. § 13.02(3), which authorizes the Legislature's joint committee on legislative organization to develop a work schedule, allows the Legislature to constitutionally convene an extraordinary session."

The court's analysis necessarily therefore turns to the interpretation of that statutory provision, Bradley wrote, and, if the meaning of the language is plain, the court's inquiry ends.

"The text of (the statute) is plain," Bradley wrote. "It authorizes the Legislature's joint committee on legislative organization to set the 'work schedule' for the biennial term."

The pivotal text, of course, is 'work schedule' and the dispositive question is whether the work schedule can specify when the Legislature will meet, Bradley wrote.

"The law itself says so," she wrote. "Given the nature of the legislative function, a 'work schedule' for the Legislature necessarily expresses when the body will meet. The Legislature consists of the people's representatives who are elected to meet and enact laws for Wisconsin. A 'work schedule' in the context of a legislature would be meaningless without specifying when and how to meet."

Because the Legislature cannot perform its constitutionally assigned work unless it meets in the chambers of the Senate and the Assembly at the state capitol to vote on proposed legislation, the plain text of the statute, directing a committee of the Legislature to "develop a work schedule for the legislative session," satisfies the "provided by law" requirement under the constitution, the majority concluded.

Both the governor and the League conceded that the statute was the "law" referenced in the constitution, Bradley observed, but then they argued the statute limits the Legislature's meeting to a "regular" session only and does not authorize the "extraordinary" session.

Not so, the majority determined.

"While the statute does not use the term 'extraordinary' session, the absence of that word in (the statute) does not make an extraordinary session unconstitutional, just as the absence of the words 'floorperiods,' and 'committee work periods' from the statute doesn't make those meetings unconstitutional either," Bradley wrote. "If 'extraordinary sessions' are unconstitutional because the term does not appear in (the statute), so are 'floorperiods' and any other characterization the Legislature adopts to describe its business."

Of course, Bradley acknowledged, the League argued that floorperiods are constitutional because the joint resolution sets forth floorperiods as part of the regular session.

Not so, the majority found.

"(The joint resolution) says no such thing," Bradley wrote. "(The joint resolution) mentions floorperiods, but nowhere does it confine floorperiods to regular sessions. The only reference to 'regular' sessions within (the joint resolution) appears in six paragraphs concerning 'bills to governor' in which (the joint resolution) sets deadlines for sending bills to the governor that have 'been passed by both houses, in regular, extraordinary, or special session.'"

Indeed, Bradley wrote, bills are passed during floorperiods, and the joint resolution ties floorperiods to all three types of sessions: regular, extraordinary, and special sessions.

"The term 'floorperiods' does not appear in the statute at all," she wrote. "'Floorperiods,' like 'extraordinary sessions,' are terms the Legislature uses in setting its work schedule in order to conduct the business pertinent to the legislative process. The specific terminology it chooses is not prescribed or limited by our constitution or by statute."

Separation of powers

The high court also declined to consider whether the Legislature violated its own rules and procedures by convening into closed session.

"The constitution does not mandate any procedural rules governing the enactment of legislation; rather, it merely directs the Legislature to prescribe its time of meeting 'by law' and empowers the Legislature 'to determine the rules of its own proceedings,'" Bradley wrote. "Because the Legislature met its constitutional obligation to provide by law the time of its meetings, any recourse against errors in the execution of the Legislature's own procedures is properly pursued within the political realm not in courts of law."

Indeed, Bradley wrote, while the justices examined the work schedule the Legislature adopted in the joint resolution to govern its proceedings, generally "this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments."

"We reviewed (the joint resolution) for the limited purpose of ensuring the Legislature's compliance with the constitution's directives governing the exercise of legislative powers," she wrote. "Those directives are few in number and broadly stated. As pertinent to this case, the constitution requires the Legislature to meet at such time as the Legislature itself statutorily decrees, and confers discretion on the Legislature to determine for itself the rules of its own proceedings. This court 'will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns.' In convening the December 2018 extraordinary session, the Legislature fully complied with all applicable constitutional mandates. Our judicial review proceeds no further."

In the end, Bradley wrote for the majority, the Legislature remains accountable to the people of Wisconsin for any failure to follow its self-imposed statutory or procedural rules.

"The judiciary serves as a check on the Legislature's actions only to the extent necessary to ensure the people's elected lawmakers comply with our constitution in every respect," she wrote. "Provided the Legislature acts in accordance with its mandates, the constitution confers no power on the judiciary to enjoin or invalidate laws as a consequence for deficiencies in the implementation of internally imposed legislative procedures."

Simply put, Bradley concluded, the December 2018 extraordinary session of the Wisconsin Legislature was constitutional.

"The text of Article IV, Section 11 of the Wisconsin Constitution directs the Legislature to meet at a time provided by law," she wrote. "Wisconsin Stat. § 13.02(3) constitutes the law authorizing the Legislature to set its own biennial work schedule. The extraordinary session comports with the constitution because it occurred as provided by law. The terminology the Legislature chooses to accomplish the legislative process is squarely the prerogative of the Legislature."

The Wisconsin constitution itself affords the Legislature absolute discretion to determine the rules of its own proceedings, Bradley wrote.

"Recognizing the Legislature's rules and procedures reside solely within the legislative domain, we review only whether the Legislature acted in accordance with the Wisconsin Constitution," she wrote. "Having so concluded, this court's jurisdiction ends."

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at

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