Showing posts with label state litigation. Show all posts
Showing posts with label state litigation. Show all posts

May 17, 2020

Wisconsin GOP Justices Seen as Corrupt, Litigation Is Pending

Wisconsin Supreme Court entrance at state capitol
Update: In Jere Fabick v. Andrea Palm, Appeal Number 2020AP000828, A May 18 state DoJ legal filing reads in part: "As a result of this Court's decision in Legislature v Palm, the petitioners' motion for an injunction and petition for an original action challenge an order that no longer exists. If this Court doe not sua sponte deny the petitioners' motion for an injunction and decline to take jurisdiction of the petition for an original action because the claims are moot, then the State Respondents respectfully request that the Court issue a schedule for supplemental briefings on the issue of mootness," (Wheeler Report).
  
Madison, Wisconsin — Wisconsin Supreme Court republicans deciding questions through fidelity to law is as likely as Republican legislators using empirical investigation and scientific findings to inform public policy.

It's not the way it is here.

Impartial processes are often mission-critical barriers to Republican Party aims of achieving corporatist demands and fundamentalist taboo-morality dogma.

Democratic foundations such as law, rights and empirical reality are rejected by Republicans, in conception.

All proceedings, hearings, deliberation and elections should arrive at orderly, pro-Party results. Law and citizen input must be minimized because the rule of law and rights-laden democracy can be powerful opposing forces to Republican Party autocracy.

It is in through this perspective that we can understand the work of Wisconsin Republican justices reaching preordained, nakedly corrupt decisions to serve Republican Party interests.

Noone was surprised by the Wisconsin Supreme Court decision to block Gov Tony Evers administration's safer-at-home Emergency Order 28, (Wisconsin Executive Orders), (Treleven, Wisconsin State Journal).

That legal case is entitled Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Nicole Safar, In Their Official Capacities As Executives of Wisconsin Department of Health Services Respondents. (Appeal Number 2020AP000765), (Case History).

Another case now before the Wisconsin Supreme Court is the so-called second safer/stay-at-home litigation, Jere Fabick v. Andrea Palm, Appeal Number 2020AP000828.
 
Fabick appears part of the Republican Party effort to dismantle targeted statutory law protecting public health and safety without the introduction of legislation. No need for a bill when hyper-activist justices stand ready to accomplish Party aims.

"Final briefs have been filed in a second lawsuit challenging Wisconsin's 'Safer at Home' order, this one arguing the order violated peoples' rights to freedom of worship, speech and travel under the Wisconsin Constitution," reports Wisconsin Public Radio.

Fabick is pending before the state Supreme Court. A decision whether the Court will hear the case is expected soon.

As local public health officials issue local orders to respond to the COVID-19 pandemic in the wake of Palm, the state DoJ issued an advisory opinion on May 15 affirming the authority of local officials because they are empowered by a different statute than the governor and Health secretary.

The non-binding DoJ opinion states in part:

4. First,  the supreme court’s  decision  addressed  only  DHS’s  authority found in Wis. Stat. § 252.02. That statute does not govern the authority of local health officers, which is separately set out in Wis. Stat. § 252.03. That separate grant of local authority  provides,  among  other  things,  powers  to  'prevent,  suppress  and  control  communicable  diseases'  and 'forbid  public  gatherings  when  deemed  necessary  to  control  outbreaks  or  epidemics.'  Wis.  Stat.  §  252.03(1)–(2).1  Because the  court  decision addressed a different statute applicable to a state agency, and not the statute applicable to local authorities, the Palm decision is not directly controlling on powers under the latter statute.

More litigation is expected by some observers.

May 10, 2020

Gov Tony Evers Sees End of Safer-at-Home Order; Would Follow Trump, Republicans' COIVD 19 Policy

Update II: Dr. Anthony Fauci, the nation’s top infectious disease expert, is warning Congress that if the country reopens too soon during the coronavirus pandemic, it will result in "needless suffering and death,"
(Madisoncom). Gov Evers' political gambit in issuing a new May 11 Emergency Order is his latest let's-hope tactic.
 
Update: See The GOP tests 2020 campaign theme: ‘Some of you will have to die.’ Tony Evers' message accepts this GOP premise, giving up major public health infrastructure built up over generations.

Madison, Wisconsin — Gov Tony Evers signaled a major course change in coronavirus COVID 19 policy in a statement last week, telling WBAY-TV his current Stay-at-Home order — now before the Wisconsin Supreme Court awaiting decision — should expire on May 26.

Evers (D) told WBAY's reporter, Cami Rapson, that he believes he can predict COVID 19's trajectory on May 26, divine relevant data points now, and infectious-disease experts' advice and conclusions, false statements that fly in the face of leading epidemiologists and the history of unpredictable and rapid progression of this coronavirus through the American population, (Roberts, New York Times).

Said Evers in a meandering interview with WBAY:

I think by [May] 26th we will be in a place where we don't have to do that, [extend Stay-at-home], unless something extraordinary happens. You know, the virus doesn't consult with me on that, but we are doing a great job with testing and tracing those results in a way that I feel confident we are headed in the right direction. ...

Whether we need to extend that, I frankly think we are going to meet our metrics that we laid out anyway. And so I'm doubtful. But if we have surges all across the state and things are going backwards, I suppose that's possible. But I think Safer at Home has worked, it's done its job, and we will continue to open up the state as we can thoughtfully and safely do it.

Evers is now rhetorically appeasing the Trump administration and Wisconsin Republicans, all of whom are working to end public health experts' pandemic policy at the expense and very lives of vulnerable members of our citizenry.

Tony Evers is privately derided by progressives and Democrats here for his dithering politics, exemplified by Evers' heavily criticized effort to hold Wisconsin's April 7 elections before reversing course on April 6 in the face of national ridicule. But Evers' comments last week garnered silence among Wisconsin Democrats.

Evers insists his public policy is informed by science.

As national media cite experts warning social-distancing efforts will not be sufficient to control the pandemic in the long term in the United States, Evers publicly musing ending social-distancing in some two weeks seems absurd.

Writes Siobhan Roberts in the New York Times:

By now we know — contrary to false predictions — that the novel corona virus will be with us for a rather long time.
'Exactly how long remains to be seen,' said Marc Lipsitch, an infectious disease epidemiologist at Harvard’s T.H. Chan School of Public Health. 'It’s going to be a matter of managing it over months to a couple of years. It’s not a matter of getting past the peak, as some people seem to believe.'

A single round of social distancing — closing schools and workplaces, limiting the sizes of gatherings, lockdowns of varying intensities and durations — will not be sufficient in the long term.

In the interest of managing our expectations and governing ourselves accordingly, it might be helpful, for our pandemic state of mind, to envision this predicament — existentially, at least — as a soliton wave: a wave that just keeps rolling and rolling, carrying on under its own power for a great distance.

Tony Evers seems an unappealing cross between Peter Pan and Neville Chamberlain as COVID 19's in-effect proponents wish to create a make-believe herd immunity among our citizen 'warriors,' a reality that is unachievable without a vaccine.

See the paper at the Center for Infectious Disease Research andPolicy (CIDRAP), University of Minnesota for three projected scaniros of COVID 19.

May 5, 2020

Wisconsin Republican Justices Put on Shit Show in Stay-at-Home Orals

Wisconsin Supreme Court entrance at state capitol
Update: "The court’s five Republican justices appeared to have no compunction about ending social distancing rules for the rest of the state’s citizens, even as they conducted their hearing remotely on Zoom," writes Mark Joseph Stern in Slate.

Madison, Wisconsin —The Wisconsin Supreme Court heard oral arguments this morning on the Republican-led legislature's petition to block Gov Tony Evers administration's safer-at-home Emergency Order, (Wisconsin Executive Orders), (Treleven, Wisconsin State Journal).

Most observers believe the Republican-led state court will rule in the Republican Party's favor, so partisan have Republican justices become.

The legal case is entitled Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Nicole Safar, In Their Official Capacities As Executives of Wisconsin Department of Health Services Respondents. (Appeal Number 2020AP000765), (Case History).

The Legislature wants a Court order, (temporary restraining order), that would bar enforcement of the stay-at-home order issued April 16, 2020, (Wisconsin Executive Orders).

Oral arguments today featured rhetorical, contentions and seemingly outrageous comment by two Republican justices —Chief Justice Patience Drake Roggensack (R) and Justice Rebecca Grassl Bradley (R).

Justice Patience Roggensack second-guessed the administration's executive order and mused falsely that the coronavirus mostly impacted workers in meat-packing plants, and not what she termed "the regular folks."

Observes listening in online gasped at what appeared to be Roggensack's false observation implicitly disregarding the health and safety of Wisconsin citizens.

Justice Rebecca Bradley editorialized that the stay-at-home order is comparable to the infamous Japanese internment camps.

Attorneys Ryan J. Walsh for Petitioner, and Colin T. Roth for Respondents, argued the case.

On May 1, the Court voted to accept jurisdiction over the case and agreed to hear argument on the following issues, which were set forth in the Legislature’s petition:

The questions before the Court concern alleged overreach by the Evers administration accused of running afoul of Wisconsin statutes through its rule-making processes in its Executive Orders, (Wisconsin Court Headlines).

Republican justices also accused the Evers administration of violating the Wisconsin and United States Constitutions, Executive Orders, (Wisconsin Court Headlines).

The Wisconsin Supreme Court bars in-person oral arguments, using video conferencing instead, due to "health concerns created by the COVID-19 pandemic," (Wisconsin Supreme Court).

The May 5 oral arguments are reproduced below in YouTube by Wisconsin Eye.

Apr 29, 2020

Wisconsin Gov and DoJ Brief: Toss Republican Suit Seeking End to Stay-at-Home Order

Madison, Wisconsin — The Wisconsin Dept of Justice filed a brief asking the Wisconsin Supreme Court to deny the Republican-led legislature's petition to block the Tony Evers administration's safer-at-home Emergency Order, (Wisconsin Executive Orders).

The legal case is entitled Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Nicole Safar, In Their Official Capacities As Executives of Wisconsin Department of Health Services Respondents. (Appeal Number 2020AP000765), (Case History).

The Legislature wants a Court order, (temporary restraining order), that would bar enforcement of the stay-at-home order issued April 16, 2020, (Wisconsin Executive Orders).

In the response brief, the Evers administration asks the Court to deny the legislature's petition for an original action before the high state court, and the motion for a temporary injunction.

Observes believe the legal position of the administration is strong, but the Republican-led Wisconsin Supreme Court often acts an adjunct for the Republican Party in political cases.

The brief emphasizes the prominence of Wisconsin Statute § 252.02, the COMMUNICABLE DISEASES or Pandemic statutes.

States the brief:

Even if  this  Court  were  to  accept  jurisdiction, the claims should be dismissed as a matter of law.

A. The  language,  context, and history of Wis. Stat. § 252.02 make clear that DHS was authorized to issue Safer-at-Home.

It is well-accepted that statutes like Wis. Stat. § 252.02 provide  broad grants   of  authority  to  respond  to  a very  rare  and  narrow  type  of crisis—the  very  one  we  now  face  with  a  rapid  spread  of  a  novel  communicable  disease. These   kinds   of   provisions   appear in statutory   codes throughout  the  country. To  respondents’  knowledge,  every  state   operates   under   laws   vesting   these   duties   in   a   department of  health  or  similar  executive  agency,  and  the  petitioners  have  not  suggested  otherwise.  These  laws  are designed to  provide  an  executive  agency  the  tools  to  act  quickly  and  with  flexibility  based  on  circumstances  on  the  ground. Wisconsin’s version of these laws, in section 252.02, does  just  that.  It  gives  DHS  flexible  powers to  address  the specific  threat of a  rapidly  spreading  disease. That  makes  sense:  this  Court  has  long  acknowledged  the  commonsense  proposition that public health officials must be able to react swiftly and effectively in the face of an imminent or existing crisis.

As  it  pertains  to the pandemic  here,  the  statutes  contain  three  independent  powers  that  authorize  measures found  in  Safer-at  -Home: Section  252.02(6)  permits  DHS  to  “authorize and implement all emergency measures to control communicable diseases.” Section 252.02(4) allows the agency to  “issue  orders  .  .  .  for  the control  and  suppression  of  communicable diseases” that “may be made applicable to the whole  .  .  .  of  the  state[  ].”  And  Section  252.02(3)  authorizes  DHS  to  “close  schools  and  forbid  public  gatherings  .  .  .  to  control outbreaks and epidemics.”Petitioners’ approach  to these statues  is not only atextual, it also   would lead to absurd, and dangerous, results. This is exactly the  time  when  pandemic  statutes  should apply with their full force. [pp 22-23]

The Evers administration April 28 press release is linked here.

The Wisconsin Supreme Court currently bars in-person oral arguments, using video conferencing instead, due to "health concerns created by the COVID-19 pandemic," (Wisconsin Supreme Court).

Apr 22, 2020

Wisconsin Republicans Seek Court Action to Block Safer at Home Order

Madison, Wisconsin — Republicans asked the Wisconsin Supreme Court to block the Tony Evers administration's safer-at-home Emergency Order 28.

The Safer at Home order seeks to protect the public from the deadly COVID 19 disease during the state public health emergency, (Wisconsin Executive Orders; Wisconsin Examiner; Wisconsin State Journal; Milwaukee Journal-Sentinel).

The legal case is entitled Wisconsin Legislature v. Secretary-Designee Andrea Palm, Julie Willems Van Dijk and Nicole Safar, In Their Official Capacities As Executives of Wisconsin Department of Health Services Respondents. (Appeal Number 2020AP000765), (Case History).

The Republican-led Legislature seeks a Court order, (temporary restraining order), that would bar enforcement of the stay-at-home order that was issued April 16, 2020, (Wisconsin Executive Orders).

The state Supreme Court is often used as an instrument to advance Republican Party aims.

The legal petition is unusual in its use of political rhetoric.

The petition characterizes the Evers administration work on the Public Safety emergency as a "decree," and includes use of adverbs such as Incredibly, brazenly to describe executive orders issued during the health emergency.

The legal action follows objection from rightwing billionaires such as Charles Koch and Liz Uihlein. Uihlein urges her company employees in a recent email to oppose Gov Evers' work on COVID 19, (Bloomberg).

The Wisconsin Supreme Court majority is biased for Republican Party interests.

Five right-wing justices routinely rule for their partisan patrons. With the defeat of Justice Daniel Kelly in April, the Republican majority on the Court will be four rightwing justices to three when Kelly's term expires on July 31.

The petition urges the case be resolved without oral argument.

The petition states:

Although this case would warrant oral argument under ordinary circumstances, the Legislature respectfully requests that the Court resolve this urgent dispute without it. Emergency Order 28 takes effect on April 24, 2020, and prompt adjudication is necessary to avoid ongoing irreparable harm. For the same reason, immediate publication is unnecessary to the extent that it would delay a resolution of the emergency motion.

The Wisconsin Supreme Court currently bars in-person oral arguments, using video conferencing instead, due to "health concerns created by the COVID-19 pandemic," (Wisconsin Supreme Court).

Jun 21, 2019

Wisconsin Supreme Court Issues Absurd and Corrupt Decision for Republican Party's Political Coalition; Vote Is Four-to-Three

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.

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.
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. ...

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. 

Jun 19, 2019

Wisconsin's 'Lame-duck' Case Decision Coming Friday, June 21

Wisconsin Supreme Court at the state capitol. Inside this
  iron door deliberation dies, Republican reign is ascendant.
Madison, Wisconsin — The Wisconsin Supreme Court will release its opinion Friday, June 21 in the politically charged lame-duck case, reads a June 19 Court memo.

The case is 2019AP559 League of Women Voters of Wisconsin v. Tony Evers.

The public release of the ruling was announced on the Wisconsin Supreme Court's Opinions Scheduled for Release Memo, June 19.

Republican-leaning justices on the Court are expected to issue a decision on this intensely political case 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.

One such brief was filed by the Wisconsin Democracy Campaign last month in May, (Mal Contends).

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.

INTRODUCTION 

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.

ARGUMENT

I. THE  LEGISLATURE’S  INSISTENCE  THAT  IT  MEETS  IN “CONTINUOUS SESSION” LEADS TO ABSURD RESULTS THAT RENDER NUMEROUS STATUTES MEANINGLESS
.

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 https://www.wisdc.org/index.php?option=com_wdcfinancedatabase&view= 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 https://www.postcrescent.com/story/news/investigations/ 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.   

CONCLUSION

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

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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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