|League of Women Voter v. Tony Evers consolidates|
Wisconsin Republicans' latest scheme.
Republican Justices' Opinion Defies Law and Logic
Madison, Wisconsin— The four rightwing justices on the Wisconsin Supreme Court issued another ruling to benefit legislative Republicans in Wisconsin's 'lame-duck session' case.
The case is: 2019 WI 75 SUPREME COURT OF WISCONSINCASE NO.: 2019AP559.
The League of Women Voters, Disability Rights of 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 v. Tony Evers.
The current four Republican Party rightwing justices are Patience D. Roggensack, Annette Kingsland Ziegler, Rebecca Grassl Bradley, and Daniel Kelly.
All four voted to uphold a series of laws and appointments passed in the Dec 2018 Extraordinary Session called to benefit the Republican Party and weaken two constitutional state offices won by Democrats in the 2018 election.
At issue is whether the lame-duck Dec 2019 extraordinary session was legal and constitutional.
The Republican justices prevailed 4-3 in the case.
Republican 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.
A dissent is authored by Justice Rebecca Frank Dallet, and is joined by Justices Shirley S. Abrahamson and Ann Walsh Bradley.
The activist rightwingers on the Court appear to be no longer bound by the Wisconsin Constitution, Wisconsin statutes and statutory interpretation.
Now, in light of the Republican justices' ruling, the state Constitution and laws governing the legislature's sessions are contradictory, meaningless and no longer applicable.
Reads Justice Dallet's dissent (pp 5-8 ) in part:
¶47 The majority opinion subverts the constitutional text in two ways to legitimize the December 2018 extraordinary session. First, the majority opinion asserts that the extraordinary session was really part of a regular session because when the Legislature first met on January 3, 2017, to convene its regular session, it stayed in a continuous two-year "biennial session" until January 7, 2019.7 It is elementary to point out that an "extraordinary," or "special," session by its very name, is the opposite of a "regular," or "planned," session. Although the title of Wis. Stat. § 13.02, "Regular sessions," alone is not dispositive, it 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.
¶48 Under the majority opinion's reading of Article IV, Section 11, the words "at such time" and "unless" become superfluous because the Legislature could meet at any time. Yet, this court has recognized that "[t]o avoid surplusage, our analysis must also take into account and give meaning to the choice of the word[s]" in the constitutional provision. Appling, 358 Wis. 2d 132, ¶25. A continuous two-year session
7 The majority opinion continuously references the term "biennial session"; however, Wisconsin has not had a biennial legislative session for nearly 50 years. Since 1971, the law has mandated that the Legislature "shall meet annually." Wis. Stat. § 13.02. Section 13.02(3) says that the Legislature "shall" hold "at least one meeting in January of each year." If there is a singular meeting coextensive with the entire biennial session period, this phrase is meaningless.would also render meaningless several other laws which distinguish between days that the Legislature is in session and days when it is not.8 The majority opinion fails to logically explain how a continuous two-year session comports with the constitutional mandate to meet at "such time as shall be provided by law."9
¶49 Second, the majority opinion further subverts the constitutional text by redefining the clause "as shall be provided by law" to include a joint resolution passed by the Legislature.10 The majority accepts the Legislature's assertion
8 For example, Wis. Stat. § 13.625(1m)(b)1 prohibits lobbyists from making financial contributions to legislators until "the legislature has concluded its final floorperiod." Under this statutory section, no lobbyist could ever be certain that the Legislature "has concluded its final floorperiod." Further, Wis. Stat. § 757.13, which limits the courts' jurisdiction over members of the Legislature while they are "in session," would be rendered virtually meaningless if the Legislature was in one perpetual session. Finally, Wis. Stat. § 13.123, which sets forth the extent to which legislators are entitled to a per diem allowance for food and lodging, would be meaningless if the Legislature met perpetually. Under the majority's reasoning, legislators would be entitled to per diem reimbursement every day of every year, which undermines the entire purpose of a per diem reimbursement.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. 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." The distinction between a session "provided by law" as set forth in § 13.02 and the Legislature's attempt to reserve to itself through a joint resolution the unlimited power to schedule an extraordinary session is made even clearer by the existence of specific statutory provisions that do explicitly set forth extraordinary sessions.11 See, e.g., Wis. Stat. § 196.497(10)(c) ("[w]ithin 120 days after the bill is introduced the appropriate committees in each house of the legislature shall authorize an extraordinary session of the legislature to commence within the 120 days and to extend until the legislature passes the bill or passes a joint resolution which disapproves of the agreement or modification . . . ) (emphasis added); see also 1987 Wisconsin Act 4 (temporarily creating Wis. Stat. § 13.02(3m) to authorize an extraordinary session between the biennial session period's two regular annual sessions). Ultimately if the Legislature wanted to meet in December 2018 in accordance with the Constitution, it should have passed a bill to authorize extraordinary sessions, as it has done in the past. ...
9 Since 1848, Article IV, Section 11 has been amended twice, but it is noteworthy that neither revision has transferred extraordinary convening authority to the Legislature.
10 In a novel argument that the majority raises on behalf of the Legislature, it asserts that like extraordinary sessions, floorperiods are not mentioned in the statutory text. Majority op., ¶22. However, as counsel for the League properly pointed out at oral argument, the work schedule, which governs the regular session, references floorperiods and the legislative journals inform us that floorperiods have long been considered part of the regular session. On the other hand, non- prescheduled floor sessions, like the extraordinary session here, were not part of the regular session.
11 The explicit reference to an extraordinary session in our statutes also shows that regular and extraordinary sessions are treated distinctly and are different in kind. This is more than just a dispute over taxonomy and the proper naming of sessions.