Supreme Court Opinion – Extraordinary Session

SUPREME COURT OPINION ON DECEMBER EXTRAORDINARY SESSION

(League of Women Voters v. Tony Evers, Dane County Circuit Court, J. R. Bradley opinion, J. Dallet dissents, joined by J. Abrahamson and J. A.W. Bradley)

In Wisconsin there are three separate types of legislative sessions. The first is Regular Session which is created through a joint resolution at the start of every session organizing the session after inauguration.  The second is a Special Session, which is created through an order from the Governor which calls the Legislature into session and designates what bills the governor wants the Legislature to work on.  The third is an Extraordinary Session, which is called for by the Legislature and is created through a joint resolution, or through the Senate and Assembly Organization Committees, and specifically identifies what legislation is to be acted upon.  Both Special Sessions and Extraordinary Sessions are limited to the bills identified either in the Governor’s order or the legislative resolution or Organization Committee action.

In December 2018, the Legislature called for an Extraordinary Session and as a result passed three pieces of legislation eventually signed into law by Governor Walker: 2017 Wisconsin Act 368, 2017 Wisconsin Act 369, and 2017 Wisconsin Act 370. In addition, the Senate confirmed 82 appointments from Governor Walker. On January 20, 2019, the League of Women Voters filed a complaint against the seven officers of the Wisconsin Elections Commission and Governor Tony Evers asking the Dane County Circuit Court to declare the three Acts unconstitutional and unenforceable because they were done during a “constitutionally invalid session.” The League also said that the 82 appointments were unconstitutional and unenforceable. The Legislature filed a motion to intervene, a motion asking that any action the circuit court takes be delayed (stay the injunction), and a motion to dismiss the case. The Elections Commission also filed a motion to dismiss. In March 2019, the circuit court issued an order denying the Legislature’s motion to dismiss, granting the temporary injunction, and denying the Legislature’s motion to stay the injunction. Eventually, Judge Niess declared the Extraordinary Session to be unconstitutional, vacated the appointments, and said the Acts were unenforceable. The Legislature appealed and the League petitioned the Supreme Court to take the case. After the circuit court ruled Governor Evers rescinded Governor Walker’s appointments and named 82 new appointments.

The Supreme Court granted the League’s petition to bypass the appeals court and expedited the briefing schedule.  Oral arguments were heard on May 15, 2019. The Supreme Court now rules that Extraordinary Sessions do not violate the Wisconsin Constitution because the constitution tells the Legislature to meet at times “provided by law,” and the Wisconsin Statutes provide the law that lets the Legislature set its schedule. The Supreme Court says, “The circuit court invaded the province of the Legislature in declaring the extraordinary session unconstitutional, enjoining enforcement for the three Acts, and vacating the 82 appointments. We vacate the circuit court’s order and remand the matter to the circuit court with directions to dismiss the League’s complaint.”

DISSENT

In her dissenting opinion, J. Dallet takes issue with the constitutional interpretation of Wisconsin Constitution Article IV, Section 11.

(Meeting of legislature. Section 11. [As amended Nov. 1881 and April 1968] The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1965 J.R. 57, 1967 J.R. 48, vote April 1968])

Dallet identifies that the question is the interpretation of “provided by law.” Dallet says, ‘The majority agrees that “provided by law” means our statutes” and goes on to explain “[T]he drafters meant statutory law when they used the phrase, provided by law.’” Dallet explains that the only “such time” that is “provided by law” for the Legislature is in Wis. Stat. § 13.02, which refers to “Regular sessions.” Dallet goes on to identify the three subsections of the Wisconsin Statutes that related to regular session scheduling and session organization. Dallet says, “March 22, 2018, was the final date the Legislature met pursuant to the work schedule and, as was the practice at the end of each legislative session, bills that were not passed in identical fashion by both houses expired.” Dallet references two court cases, Thompson and Dammann in explaining the procedure by which the Legislature can reconvene at a future date. Dallet says, “On March 22, 2018, 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 says she dissents because she believes the session was unconstitutional.