June 24, 2019 – The Wisconsin Supreme Court has upheld (4-3) legislation that passed during a December 2018 extraordinary session, as well as 82 gubernatorial appointees who were confirmed, concluding the session did not violate the state constitution.

The Dane County Circuit Court previously ruled that the extraordinary session, convened after Gov. Tony Evers won the gubernatorial election but before Gov. Scott Walker’s term ended, was improperly convened and thus the actions taken were invalid.

But in League of Women Voters v. Evers, 2019 WI 75 (June 21, 2019), a 4-3 majority concluded that the extraordinary sessions “do not violate the Wisconsin Constitution. …”

The majority said the 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 times for it to meet in an extraordinary session.”

Justice Rebecca Bradley wrote the majority opinion. Chief Justice Patience Roggensack, and Justices Annette Ziegler and Daniel Kelly joined. Justice Rebecca Dallet dissented, joined by Justices Shirley Abrahamson and Ann Walsh Bradley.

The dissent said the extraordinary session, and all legislative acts derived from it, were unconstitutional because the legislature had already adjourned for the term and there was no legal basis for members of the legislature to convene the extraordinary session.

Majority Rules

The four-justice majority noted that the Wisconsin Legislature’s 2017-18 biennial session did not end until Jan. 7, 2019. The session schedule was adopted in a Joint Resolution of the Senate (Joint Resolution 1), in 2017, and the Assembly concurred.

Joint Resolution 1 set, among other things, floor periods and committee work periods and addressed “special and extraordinary sessions.”

One provision said unreserved days could be available for extended floor periods, to convene extraordinary sessions, or to take Senate action on appointments.

The majority concluded that these provisions gave the Legislature the authority to convene the extraordinary session in December 2018. During that session, the Legislature passed three acts and confirmed 82 of Gov. Walker’s appointments.

Joint Resolution 1, the majority explained, was proper under the Wisconsin Constitution, which allows the legislature to meet at “at such time as shall be provided by law” and for the Senate and Assembly “to determine the rules of its own proceedings.”

Further, Wis. Stat. section 13.02(3), the majority explained, gives the Legislature the authority to set the legislative calendar through a joint resolution, which it did.

“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,” wrote Justice R. Bradley, noting that the case hinged on interpreting that statute.

“The text of § 13.02(3) is plain,” R. Bradley wrote. “It authorizes the Legislature’s joint committee on legislative organization to set the ‘work schedule’ for the biennial term.”

The majority said the statute allows the Legislature to set its work schedule, including any extraordinary sessions that it may choose to convene during the biennial session.

Rejecting the plaintiffs’ argument that an extraordinary session could not be called because the Legislature had already adjourned for the biennial session, the majority said Joint Resolution 1 (JR1) determined the session was open until Jan. 7, 2019.

“Neither the record nor JR1 supports a sine die adjournment on March 22, 2018,” Justice R. Bradley wrote. “When the Legislature adjourned on March 22, it did so pursuant to JR1, which provides the session ends on January 7, 2019.”

Justice R. Bradley also noted the separation of powers doctrine, concluding the circuit court’s ruling judicially encroached “on the exercise of powers constitutionally vested exclusively in the Legislature.” She also said courts can review the constitutionality of enacted laws, but the legislative process “falls beyond the powers of judicial review.”

“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,” R. Bradley wrote.

Dissent Speaks

The dissent noted that Wis. Stat. section 13.02 deals with “regular sessions,” and Joint Resolution 1 (JR1) did not identify the December 2018 extraordinary session.

“March 22, 2018, was the final date the Legislature met pursuant to the work schedule, as was the practice at the end of each legislative session, bills that we not passed in identical fashion by both houses expired,” Justice Dallet wrote.

“On March 22, 2019, the Legislature adjourned sine die, or ceased to exist, as there were no future scheduled meetings of the regular session laid out in JR1. Therefore, there was no authority for the majority of members of two committees to convene a previously unscheduled meeting of the full Legislature in early December 2018.”

Dallet said the majority “subverts the constitutional text” to legitimize the December 2018 extraordinary session by concluding that the Legislature is in a continuous two-year session during which extraordinary sessions can be convened without restriction.

“The majority accepts the Legislature's assertion that the work schedule set forth in JR1 allowed the Legislature to reserve to itself every unscheduled day for the possible convening of an extraordinary session,” Justice Dallet wrote.

“I agree with the circuit court that the Legislature's purported ability to meet any day, even if it is not scheduled, is the antithesis of a work schedule as set forth in Wis. Stat. § 13.02(3) ‘by both definition and force of logic.’”

Dallet said the drafters of the state constitution, in 1848, “sought to avoid a continuation of colonial-era abuses involving irregular meetings of the Legislature” and the majority now “broadens the Legislature’s powers” despite the drafters’ fear of legislative abuses.

The dissenters also rejected the majority opinion’s conclusions on the separation of powers, as applied to the Legislature’s proceedings.

“The Legislature’s ability to determine the rules of its proceedings pursuant to Article IV, Section 8 does not swallow up the meeting requirements of Article IV, Section 11 or allow it to wield unbridled power,” wrote Justice Dallet.

The dissenting opinion, joined by Justices Abrahamson and A.W. Bradley, rejected the majority’s view that JR1 was constitutionally sufficient to allow a “continuous, perpetual legislative session and the ability to convene at any time without notice.”