May 16, 2019

Republican Justices on Wisconsin Supreme Court Signal Support for Republicans' Lame-Duck Legislation

Legislature's Argument Leads to Absurd Results, Rendering Several Statutes Meaningless, Says Amicus Brief Filed by Wisconsin Democracy Campaign

Updated - Madison, Wisconsin — Republican-leaning Wisconsin Supreme Court justices signaled their support for Republican legislators who convened a lame-duck session last December to pass laws written to help Republicans, (Associated Press).

But the case is a legal super-fight with no clear outcome.

An interesting Wisconsin Democracy Campaign brief argues that the Republican-led Wisconsin Legislature's arguments made in support of the constitutionality of the Dec 2018 extraordinary session leads to absurd results, including rendering several state statutes meaningless.

The Supreme Court heard oral arguments May 15 in League of Women Voters of Wisconsin v. Tony Evers, Appeal Number 2019AP000559. [Long caption: League of Women Voters of Wisconsin, Disability Rights Wisconsin, Inc., Black Leaders Organizing for Communities, Guillermo Aceves, Michael J. Cain, John S. Greene and Michael Doyle, in his official capacity as Clerk of Green County, Plaintiffs-Respondents, v. Tony Evers, in his official capacity as Governor of the State of Wisconsin, Defendant-Respondent, Wisconsin Legislature, Intervening Defendant-Appellant.]

The lame-duck session was found to violate the Wisconsin Constitution by Circuit Court Judge Richard G. Niess in March 2019.

Though the December 2018 lame-duck session was unprecedented in state history, corporate media continue to characterize the Republican rightwingers as "conservative," in contravention of the Republican Party's radical departure from legislative norms that the lame-duck session exemplifies.

Republican-leaning justices on the Court will issue a decision on this intensely political case this Summer that some expect to favor Republicans over existing law and contemporary statutory interpretation.

Republican-leaning justices on the Court currently hold a four-to-three majority. This Republican majority will increase to five-to-two after Justice Shirley S. Abrahamson is replaced by Republican judge, Brian Hagedorn on July 31, 2019. Hagedorn is not expected to participate in this decision.

The current four Republican Party rightwing justices are Patience D. Roggensack, Annette Kingsland Ziegler, Rebecca Grassl Bradley, and Daniel Kelly.

The case is heavily briefed; and amicus briefs have been filed by dozens of attorneys, scholars, citizen groups' social justice, civil rights, industry and environmental groups.

The briefs offer arguments and points of law, bringing to the attention of the Court salient issues that may otherwise be overlooked.

Following are the link to the May 7, 2019 press release from the Wisconsin Democracy Campaign, and sections of the argument of the amicus brief text, written in support of the plaintiffs.

The Wisconsin Democracy Campaign's brief argues that the Republican-led Wisconsin Legislature's arguments made in support of the constitutionality of the Dec 2018 extraordinary session leads to absurd results, including rendering several state statutes meaningless.

Counsel for the Wisconsin Legislature is attorney Misha Tseytlin who is advancing a novel theory of a continuous session of the legislature. See May 7, 2019 Reply Brief. [League of Women Voters of Wisconsin v. Tony Evers Appeal Number 2019AP000559 Wisconsin Supreme Court]

The Introduction, Argument and Conclusion sections of the Campaign's brief are reproduced below.


The Wisconsin Constitution controls when the Wisconsin Legislature may meet.  With the exception of special sessions convened by the Governor, the  Legislature  has  authority  to  “meet”  only  at  “such  time  as  shall  be provided by law.”  Wis. Const. art. IV, § 11.  The circuit court correctly held that “provided by law” means “provided by duly-enacted statute.”  (R. 90 at 2.)     

The only statute implementing Article IV, Section 11 is Wis. Stat. § 13.02, titled “Regular session.”  The opening words of the statute are: “The legislature shall meet annually.”  Subsection (1) instructs as to when the Legislature  “shall  convene”  to  “organize  itself  for  the  conduct  of  its business.” Subsection (2) sets forth the time when the “regular session” shall commence  “in  each  year  unless  otherwise  provided  under  sub.  (3).”  Subsection  (3)  directs  the  joint  committee  on  legislative  organization  to “meet and develop a work schedule for the legislative session, which shall include at least one meeting in January of each year.”  Finally, subsection (4) provides that “[a]ny measures introduced in the regular annual session of the odd-numbered year which do not receive final action shall carry over to the regular annual session held in the even-numbered year.”  Nowhere does Wis. Stat. § 13.02 provide “by law” for the Legislature to meet in extraordinary session.

Before this Court is the question of whether the Legislature violated Article IV, Section 11 when it convened the December 2018 Extraordinary 3 Session.  (Br. at 1.1)  The circuit court agreed with the Plaintiffs-Appellees that  it  did.    (R.  90  at  7.)  The  Legislature  insists  that  there  is  but  one continuous biennial session of the Legislature.  (See, e.g.,Leg. Br. at 4.2)  The  Legislature’s  argument  cannot  be  true  because  it  would  negate constitutional provisions and contravene existing statutes, stripping them of any meaning.



The Legislature claims that it “meet[s] continuously throughout the biennial session period, with final adjournment occurring only immediately before the next biennial session begins.”  (Leg. Br. at 4.)  The Legislature further argues that “the 2017-18 Legislature unquestionably met in January 2017  and  did  not  stop  meeting  until  January  2019.”  (Id. at 18.)  The Legislature’s argument does not hold water.  The Legislature’s claim that it meets continuously is baseless and yields absurd results that render existing law meaningless. The circuit court correctly held:

1 “Br. at __.)” refers to pages in Plaintiffs-Appellees’ brief filed on April 30, 2019.

2 “Leg. Br. at __” refers to pages in the Legislature’s opening merits brief filed on April 10, 2019. 
The bottom line in this case is that the Legislature did not lawfully meet during its December 2018  “Extraordinary  Session,” which  therefore proceeded in violation of both Article IV, Section 11 of the Wisconsin Constitution and its sole implementing statute § 13.02, Stats. The former constrains the Legislature from meeting except in two circumstances:  (1) “at such time as shall be provided by law,” i.e., by statute, (2) “unless convened by the governor in special session.”

Neither circumstance occurred with the December 2018 “Extraordinary Session.”  For whatever reason, Governor Walker did not exercise his constitutional authority to call a special session.  And Section 13.02 does not set any “time” for an extraordinary session, as required by Article IV, Section 11.  Indeed, nothing in § 13.02, Stats., authorizes the Legislature to self-convene and meet, as it did last December, upon mere committee vote months after final adjournment of its 2018 regular session.
(R. 90 at 7.)

This  Court  has  a  responsibility  “to  ascertain  and  apply  the  plain meaning of the statutes as adopted by the legislature.” Kieninger v. Crown Equip.  Corp., 2019 WI 27, ¶14, 386 Wis. 2d 1, 924 N.W.2d 172.  Here, however, as demonstrated below, the plain meaning of the statutes cannot be applied   under   the   Legislature’s   “continuous   session”   erroneous interpretation of the Constitution or Wis. Stat. § 13.02.

A. If the Legislature’s Claim That It Meets in “Continuous Session” Were  Correct,  a  Lobbyist  Could  Never  Make  Campaign Contributions and a Legislator Could Never Accept Campaign Contributions from a Lobbyist.

Section 13.625(1m)(b) of the Wisconsin Statutes restricts lobbyists from making financial contributions to legislators until the Legislature is no longer in session.  Section 13.625(1m)(b) states, in relevant part:

A lobbyist may make a personal contribution to a partisan elective state official or candidate for partisan elective state office or to the candidate committee of the official or candidate between the first day authorized by law for the circulation of nomination papers as a candidate at a general election or special election and the day of the day of the general election or special elections, except that:

1. A contribution to a candidate for legislative office may be made during  that  period  only  if  the  legislature  has  concluded  its  final floorperiod, and is not in special or extraordinary session.
The  text  is  clear.  Lobbyists may not contribute  to  campaigns  for current legislators or to campaigns for candidates for Assembly or Senate while  the  Legislature  is  in  session.    Insteasignd,  a  lobbyist  may  make  a personal contribution to a legislator or a legislative candidate only after the Legislature  has  concluded  its  final  floorperiod  and  is  not  in  special  or extraordinary session.3  The Legislature’s claim that the Legislature is in continuous session would render Wis. Stat. § 13.625(1m)(b)1 meaningless.

If  it  were  true  that  the  Legislature  meets  in  continuous  session,  a lobbyist could never make a campaign contribution because there would never  be  a  period  during  which  the  Legislature  “has  concluded  its  final - continued -

3 The Legislature argues that the December 2018 Extraordinary Session was simply a non-prescheduled floorperiod occurring during the regular session.  (Leg. Br. at 35-37.)  

The Legislature further argues that statutory references to “extraordinary sessions” somehow render extraordinary sessions legitimate.  (Leg. Br. pp. 36-37.)  However, the  mere  mention  of  extraordinary  sessions  cannot,  and  do  not, authorize  the legislature to convene “by law” in extraordinary session as required by Article IV, Section 11. 
- floorperiod” since adjournment occurs “immediately before the next biennial session begins.”  (Leg. Br. at 4.)  It would follow that any contribution to a legislator or a candidate for legislative office ever made by a lobbyist is made in violation of Wis. Stat. § 13.625(1m)(b). The Legislature cannot have it both  ways.   It  cannot  meet  in  continuous  session  and  lawfully  accept lobbyists’  campaign  contributions. To  find  otherwise  would  render  the language of Wis. Stat. § 13.625(1m)(b) meaningless. 

The Legislature’s theory thus requires a finding that legislators and candidates for legislative  office  violate  the  law  each  time  they  accept campaign contributions from lobbyists.  On this basis, current members of the  Legislature  have  violated  the  law.4    If  true,  the  Legislature’s  own argument could lead to the mass indictment of legislators for violations of Wis. Stat. § 13.625(1m)(b).5  Not only does the Legislature’s assertion lead to absurd results, it renders Wis. Stat. § 13.625(1m)(b) meaningless. Statutes - continued -

4 See searchadvanced&active_search=1&ic_date_start=06%2F01%2F2018&ic_date_end=12%2F31%2F2019&ic_name=&cand_last_name=&ic_employer=&ic_interest=&ic_city=&ic_state=&ic_zip=&ic_amount_start=0&ic_amount_end=0&limit=100&filter_order=ic.contribution_date&filter_order_Dir=DESC&custom_page=1 (last visited on May 3, 2019.

5 These same legislators, however, would be immunized from court proceedings in perpetuum, see Section B., infra, yielding yet another absurd result. 
should  be  interpreted  in  such  a  way  that  no  provision  is rendered meaningless. See, e.g., Belding v. Demoulin, 2014 WI 8, ¶¶ 33-34, 352 Wis. 2d 359, 374, 843 N.W.2d 373.  See also Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶ 217, 350 Wis. 2d 554, 664, 835 N.W.2d 160 (“We are required to read statutes so that no part is rendered meaningless or superfluous and so that the statute is not rendered unreasonable or absurd”).

B. If the Legislature were in “Continuous Session,” LegislatorsCould  Evade  the  Jurisdiction  of  the  Court  Until  Their Retirement

If the Legislature were in “continuous session,” the result would be that Wis. Stat. § 757.13 and Article IV, § 15 of the Constitution, which limit the courts’ jurisdiction over members of the Legislature while they are in session, would be rendered virtually meaningless.  Legislators could evade trial and avoid participation in court proceedings for decades, or perhaps even permanently.6  The wrongheadness of the Legislature’s contention that it “meets continuously” is demonstrated by its inability to coexist with Wis. Stat. § 757.13 and Article IV, § 15 of the Constitution.

6 To illustrate, a current member of the Legislature has served continuously for more than six decades and, under the Legislature’s theory, could avoid prosecution or court proceedings for the duration of that service. 
Under section 757.13, Stats., “[w]hen a witness, party or an attorney for any party to any action or proceeding in any court or any commission, is a member of the Wisconsin legislature, in session, that fact is sufficient cause for  the  adjournment  or  continuance  of  the  action  or  proceeding, and  the adjournment  or  continuance  shall  be  granted  without  the  imposition  of terms.” (Emphasis added.) If the Legislature is in continuous session, there would be “sufficient cause for the adjournment or continuance of [any] action or proceeding” to which the Legislator is a witness, party, or any attorney for a party and would render Wis. Stat. § 757.13 mere surplusage.  Certainly, it cannot  be  true  that  legislators  are  immune  from  participation  in  court proceedings for years, or even decades. No person—not even a member of the Legislature—is above the law. 

The language of Article IV, § 15 of the Wisconsin Constitution is similarly meaningless if the Legislature’s assertion that it is in “continuous session”  is  applied.    Article  IV,  Section  15  provides:    “Members  of  the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the  session  of  the  legislature, nor  for  fifteen  days  next  before  the commencement  and  after  the  termination  of  each  session.”  (Emphasis added.)  But the Legislature contends that “final adjournment occur[s] only immediately before  the  next  biennial  session  begins.”  (Leg.  Br.  at  4.)  (Emphasis added.)  If the Legislature meets in continuous session, Article IV, Section 11 is rendered not only superfluous but nonsensical: there would be no be fifteen-day period before the commencement of a session or  after the termination of a session and, more importantly, there would be no period during which a legislator would be subject to process.

Accordingly, every single legislator would be immune to civil process for the length of their term of office.  Wis. Const. art. IV, § 15.  This is absurd. 

Additionally,  if  the  Legislature  sincerely  believed  that  it  meets  in continuous session, it would not have adopted 2017 Act 369 in the December 2018 Extraordinary Session, which requires service on various members and committees of the Legislature in certain judicial proceedings which, in turn, authorizes the Legislature’s intervention in those proceedings. See 2017 Wis. Act 369, §§ 7, 8, 98, 99, 101.  The Legislature received notice of the instant lawsuit by service of process (R.43, 44, 45), which led to its intervention. The Legislature’s position in this lawsuit, if credited, renders compliance with this new law impossible. It would truly be perverse to believe that the Legislature adopted this law with the very intention of imposing a service requirement that cannot be met.  Accordingly, the only logical conclusion is that the words the Legislature adopted as a part of 2017 Wis. Act 369, Section 7, 8, 98, 99, and 101 have meaning, and their meaning requires that the Legislature’s theory of a continuous session be rejected. 

The Legislature’s assertion of a “continuous session” in light of a contradictory law it adopted mere months ago defies common sense and, as a result, must fail.

C. If  a  Continuous  Session  Existed,  Legislators  Would  Be Entitled to Per Diem Reimbursement 365 Days of the Year.

Section 13.123 of the Wisconsin Statutes sets forth, inter alia, the extent to which legislators are entitled to a per diem allowance for food and lodging. The statute would not make sense if, as the Legislature contends in this Court, it meets perpetually. If the Legislature met in continuous session, legislators would be entitled to per diem reimbursement every day of every year; that would undermine the entire purpose of a per diem reimbursement because it would effectively become just a part of a legislator’s salary. In relevant part, Wis. Stat. § 13.123 provides:

IN-SESSION  EXPENSES.7  (a)  1.  Any  member  of  the  legislature  who  has signified ... the necessity of establishing a temporary residence at the state capital for the period of any regular or special legislative session shall be entitled to an allowance for expenses incurred for food and lodging ... but not including any Saturday or Sunday . . .                          * * *

(b) No allowance shall be paid under this subsection for any day during a recess of the legislature for 30 days or more unless so provided by joint resolution adopted by both houses of the legislature.  
(Emphases added.)

The details of the statute are significant.  First, if the Legislature were in continuous session, as it contends, it would follow that the legislators could claim per diem expenses for every day of the biennium.  Because the Legislature’s position is that “final adjournment occur[s] only immediately before the next biennial session begins” (Leg. Br. at 4), “IN-SESSION EXPENSES” would apply to every single day of the biennial session.  No legislator  claims per diem expenses  for  every  day  of  the  year,  because, simply, the Legislature is not in session every day of the year. Indeed, in the last year for which public records are available, only two legislators—out of  - continued -

7 Although  a  statutory  title  cannot  overrule  the  language  of  the law,  the  title  “is persuasive evidence of a statutory interpretation.” Mireles v. LIRC, 2000 WI 96, ¶60 n.13,  237  Wis.  2d  69,  613  N.W.2d  875  (citing  Pure  Milk  Prods.  Coop.  v.  Nat’l Farmers Org., 64 Wis. 2d 241, 253, 219 N.W.2d 564 (1974)); accord Scalia & Garner, supra, at 221 (“Titles and headings are permissible indicators of meaning.”).

This statutory section’s title of “IN-SESSION  EXPENSES” affirms  the intention that legislators be reimbursed for expenses while the Legislature is in session.  If, however, the Legislature is continuously in session, it follows that the term “expenses” need not be qualified by “in-session.” 
- 132—claimed per diem expenses for even half the calendar days in the year. See 2018/02/06/ wisconsin-legislators-claim-over-1-3-million-allowances-but-work-fewerdays/ 307599002/ (last visited May 3, 2019).

Second,  the  Legislature’s  contention  renders  meaningless  other sections  of  Wis.  Stat.  §  13.123.  For example, Wis. Stat. § 13.123(1)(b) provides:  “No allowance shall be paid under this subsection for any day during a recess of the legislature for 30 days or more unless so provided by joint  resolution  adopted  by  both  houses  of  the  legislature.”    (Emphasis added.)  A recess  is,  by definition,  a  time  when  the Legislature is not in session.  There can be no recess—a time during which the Legislature does not meet—if the Legislature is in “continuous session.” 

By excluding Saturdays, Sundays, and periods of recess as times the Legislature is not in session, the statute clearly contradicts the Legislature’s claim that it is continuously in session.   


The  arguments  set  forth  above  illustrate that the position the Legislature has asserted in this litigation about “continuous sessions” is both contrary to existing law and would, if true, significantly retrench Wisconsin’s tradition of and commitment to government transparency. For these reasons, Wisconsin Democracy Campaign respectfully urges the Court to affirm the circuit court’s Decision and Order.

May 3, 2019
Respectfully submitted,
 /s/ Jeanne M. Armstrong
Jeanne M. Armstrong
State Bar No. 1021451
Christopher J. Dodge
State Bar No. 1011530
Attorneys for Wisconsin Democracy Campaign


Press Release for Wisconsin Democracy Campaign
May 7, 2019

Wisconsin Democracy Campaign Submits Amicus Brief in Lame-Duck Case 

On May 3, the Wisconsin Democracy Campaign submitted a motion for leave to file an amicus curiae brief to the Wisconsin Supreme Court in one of the lame-duck lawsuits. On May 6, the Wisconsin Supreme Court granted the motion and accepted the brief for filing.

Supporting the case brought by the League of Women Voters of Wisconsin, Disability Rights Wisconsin, and the Black Leaders Organizing for Communities, the brief by the Wisconsin Democracy Campaign punches several holes in one of the main arguments by the Republican leadership.

That argument contends that the Legislature meets “continuously through the biennial session,” and this contention is designed to rebut the charge that the lame-duck session was illegitimate.

But this defense—essentially, that the Legislature is always in session until the next session begins—is “absurd,” says the brief by the Wisconsin Democracy Campaign. “Acceptance of the Legislature’s argument would ensure that neither the Constitution nor the laws of Wisconsin could be properly construed and followed,” it states.

The brief points out that the logic of the Republicans’ argument would mean that “a lobbyist could never make campaign contributions and a legislator could never accept campaign contributions from a lobbyist.” The reason for this is simple: Current Wisconsin law allows lobbyists to make contributions only when the legislature is not in session. But since their argument is that the Legislature is always in session, they’ve got a big problem on their hands.

“The Legislature’s theory thus requires a finding that legislators and candidates for legislative office violate the law each time they accept campaign contributions from lobbyists,” the brief states. “If true, the Legislature’s own argument could lead to the mass indictment of legislators.”

The brief also notes that “if the Legislature were in ‘continuous session,’ Legislators could evade the jurisdiction of the court until their retirement.”

Current Wisconsin law says that a legislator can’t be party to a suit while the Legislature is in session so if the Legislature is always in session, there’s no way to take legal action against any legislator.

“Certainly, it cannot be true that legislators are immune from participation in court proceedings for years, or even decades,” the brief states. “No person – not even a member of the Legislature—is above the law.”

And here’s one for the Wisconsin taxpayer: If the Legislature serves in “continuous session,” then every legislator could put in for their “per diems” – their expense allowances -- every day for two years!

The law on “per diems,” incidentally, recognizes that the Legislature is not in “continuous session.” It states: “No allowance shall be paid under this subsection for any day during a recess of the Legislature for 30 days or more...” As the Wisconsin Democracy Campaign brief notes: “If the Legislature is in ‘continuous session,’ then how can there be a recess?”

The brief was filed by attorneys Jeanne Armstrong and Christopher Dodge of Fuhrman & Dodge.

Matt Rothschild, the executive director of the Wisconsin Democracy Campaign, hailed the work of Armstrong and Dodge. “Our lawyers did a terrific job in showing just how ludicrous the Republicans’ argument is,” Rothschild said.

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