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September 27, 1983


Original Action for declaratory judgment.

William A. Bablitch, J., took no part. Louis J. Ceci, J., (minority OPINION(S)ing).

The opinion of the court was delivered by: Per Curiam

This is an original action commenced by Attorney General Bronson C. La Follette seeking a declaratory judgment that the State of Wisconsin Operating Notes of 1983 when issued, sold and delivered in the manner provided by the Authorizing Resolution issued by the State Building Commission pursuant to 1983 Wisconsin Act 3, will be valid enforceable contractual obligations of the State of Wisconsin. The respondents, both members of the legislature, ask this court to declare Act 3 invalid because it was not properly enacted and because it authorizes a state debt in violation of the state constitution. *fn1 Because we decline to review the validity of the procedure followed by the legislature in enacting Act 3 and because we conclude the operating notes are not public debt within the prohibition of Article VIII, Sec. 4 of the Wisconsin Constitution, we declare that the notes issued pursuant to the authority of 1983 Wisconsin Act 3, are evidence of a valid enforceable obligation of the State of Wisconsin.

The facts are undisputed: The state proposes to issue $750 million of operating notes of 1983 to ease cash flow imbalances during the 1983-84 fiscal year. Such notes are to be issued pursuant to 1983 Wisconsin Act 3. The act provides that at any time the department of administration determines that a deficiency will occur in the funds of the state so that the state will be unable to meet its operating obligations in a timely manner, the department may by a request signed by the secretary of administration and the governor and approved by the joint committee on finance, ask the state building commission, by authorizing resolution, to issue operating notes to fund the anticipated deficit. The act further specifies that no request from the department of administration can be made, nor authorizing resolution from the state building commission adopted, on or after the effective date of the 1985 biennial budget act. Moreover, the act states that no operating note issued may have a maturity date later than the effective date of the 1985 biennial budget act. The authorizing resolution issued by the state building commission provides that the notes will mature on June 15, 1984, with all principal and interest on such notes to be paid from revenue received during the fiscal year. The proceeds from the notes will be deposited in the state's general fund to be used to fund state assistance payments to municipalities and school districts, to reimburse various segregated funds of the state from which monies have been temporarily allocated for general fund purposes and to finance the state's day-to-day operations.

Funds derived from anticipated tax revenues -- primarily personal income, corporate income and sales taxes -- to be paid within this fiscal year will be used to repay the notes. The act requires the secretary of the department of administration to impound such funds and transfer them from the general fund to the operating note redemption fund periodically during the 1983-84 fiscal year. According to the authorizing resolution, the final impoundment is to be made on May 15, 1984, at which time 100 percent of the amount of principal and interest payable on the notes at maturity on June 15, 1984, is to be on deposit in the redemption fund. The act appropriates from the general fund to the redemption fund a sum sufficient for the payment of principal and interest on the notes and for the payment of all monies required to be impounded. Funds in the redemption fund are subject only to the rights of the holders of the state's general obligation bonds and notes. If the state fails to pay any operating note, the act gives the holder the right to compel such payment in an action against the state.

We granted the petition to commence an original action because this matter is publici juris and requires a prompt and authoritative determination by this court in the first instance, Petition of Heil, supra; see also, In Re Exercise of Original Jurisdiction, 201 Wis. 123, 229 N.W. 643 (1930).

We deem the two issues raised in this action to be:

(1) Is 1983 Wisconsin Act 3 invalid because the legislature did not follow specified statutory procedures in enacting the legislation?

(2) Are the operating notes "public debt" within the meaning of Article VIII, Sec. 4 of the Wisconsin Constitution which prohibits the state from contracting "public debt" except in certain situations not applicable here?

Procedural Validity of Enactment

The respondents contend that Act 3 is invalid because neither house of the legislature referred the act to the joint survey committee on debt management as required by sec. 13.49(6) before passage. Section 13.49(5) states that the purpose of the joint survey committee on debt management is to ". . . advise the legislature on matters regarding coordination of activities of state agencies and independent state authorities issuing debt and revenue obligations or using proceeds of such obligations . . . ." The committee is charged with reviewing and advising the legislature whenever legislation is proposed which involves state debt or revenue obligations. Subsection (6) of sec. 13.49 provides in pertinent part:

"Upon the introduction in either house of the legislature of any proposal which affects any existing statute or creates any new statutes relating to the authorization to issue state debt or revenue obligations as set forth in ch. 18, . . . shall at once be referred to the committee by the presiding officer instead of to a standing committee. The proposal shall not be considered further by either house until the committee has submitted a report, in writing, setting forth an opinion on the fiscal effect upon the state or local government, the effect upon the state's and local government's ability to issue debt and revenue obligations, the appropriateness of the proposal in relation to the state's and local government's debt policies and the desirability of the proposal as a matter of public policy and the report has been printed as an appendix to the bill and attached to the bill as are amendments . . ." (Emphasis added.)

The respondents contend that the failure of either the assembly or the senate to refer Act 3 to this committee prior to passage invalidates the act. The petitioner, on the other hand, contends that Assembly Bill 104 which ultimately became 1983 Wisconsin Act 3 did not have to be referred to the committee because it did not create state debt or revenue obligations as set forth in ch. 18, Stats.

Because we conclude this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments, we do not address the question of whether sec. 13.49(6), Stats., applies to this legislation. To discuss or consider the petitioner's argument that the procedure mandated in sec. 13.49, does not apply to Act 3 because the latter did not create state debt or revenue obligations as set forth in ch. 18, would imply that this court will review legislative conduct to ensure the legislature complied with its own procedural rules or statutes in enacting the legislation. For the reasons discussed below, we conclude we will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns; accordingly, we decline to resolve the question of whether sec. 13.49 applies to Act 3.

Courts are reluctant to inquire into whether the legislature has complied with legislatively prescribed formalities in enacting a statute. This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute. Baker v. Carr, 369 U.S. 186, 215 (1962). Although since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) courts have had the authority to review acts of the legislature for any conflict with the constitution, courts generally consider that the legislature's adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution. 73 Am. Jur. 2d Statutes, sec. 49, p. 296. If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid. The rationale is that the failure to follow such procedural rules amounts to an implied ad hoc repeal of such rules.

This principle has been expressed in 1 Sutherland, Statutory Construction (4th Ed.) sec. 7.04, p. 264, as follows:

"The decisions are nearly unanimous in holding that an act cannot be declared invalid for failure of the house to observe its own rules. Courts will not inquire whether such rules have been observed in the passage of the act. Likewise, the legislature by statute or joint resolution cannot bind or restrict itself or its successors as to the procedure to be followed in the passage of legislation."

Wisconsin has long followed this general rule. See, e.g., McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891); State v. P. Lorillard Co., 181 Wis. 347, 372, 193 N.W. 613 (1923); State ex rel. Hunsicker v. Board of Regents, 209 Wis. 83, 86, 244 N.W. 618 (1932); and Outagamie County v. Smith, 38 Wis. 2d 24, 41, 155 N.W.2d 639 (1968). See also, 63 Op. Att'y Gen. 305, 308 (1974); 60 Op. Att'y Gen. 245, 251 (1971); 68 Op. Att'y Gen. 113 (1976); and Luce, "Judicial Regulation of Legislative Procedure in Wisconsin," 1941 Wis. L. Rev., 439, 453-4 (1941).

In McDonald v. State, supra, this court held that it would not declare a law invalid because of the legislature's failure to comply with its own rules of procedure so long as the constitutional requirements for the enactment of legislation had been followed. This court stated:

"The courts will take judicial notice of the statute laws of the state, and to this end they will take like notice of the contents of the journals of the two houses of the legislature far enough to determine whether an act published as a law was actually passed by the respective houses in accordance with constitutional requirements. Further than this the courts will not go. When it appears that an act was so passed, no inquiry will be permitted to ascertain whether the two houses have or have not complied strictly with their own rules in their procedure on the bill, intermediate its introduction and final passage. The presumption is conclusive that they have done so. We think no court has ever declared an act of the legislature void for noncompliance with the rules of procedure made by itself, or the respective branches thereof, and which it or they may change or suspend at will. If there are any such adjudications, we decline to follow them." Id. at pp. 411-12 (Emphasis added.)

Similarly, in State v. P. Lorillard Co., supra, the question was whether sec. 13.06, Stats., which required the legislature to refer appropriation bills to the joint committee on finance before passage, meant that such bills had to be referred by each house before final passage. This court, in rejecting the argument that each house had to refer the proposal, pointed out that there was no constitutional requirement involved and moreover, that the statute as written did not require reference by each house. This court stated: "This is a question of policy for legislative, not judicial, determination." Id. at p 372.

Likewise, in Outagamie County v. Smith, supra, this court held it had jurisdiction over legislative affairs only to insure that constitutional provisions had been followed by the legislature:

"This court will not interfere with the conduct of legislative affairs in the absence of a constitutional mandate to do so or unless either its procedures or end result constitutes a deprivation of constitutionally guaranteed rights. Short of such deprivations which give this court jurisdiction, recourse against legislative errors, nonfeasance or questionable procedure is by political action only." Id. at p. 41.

There is no claim in the instant case that sec. 13.49, Stats., embodies any constitutional requirements. That statute does not codify any constitutional provisions regarding legislative procedures. It is simply a procedural rule, albeit in statute form and thereby imbued with all the dignity and importance of a legislative act passed by both houses of the legislature and signed by the governor. Nevertheless, the fact that sec. 13.49 is something more than a mere internal procedural rule but less than a constitutional requirement, does not remove it from the application of the general rule as stated by Sutherland, (supra) . In one court which has considered the question it has been held that the legislature's failure to follow a procedural rule -- even if such rule is embodied in a statute -- is not open to judicial scrutiny and cannot be a basis for judicial invalidation of a legislative enactment. Schweizer v. Territory, 5 Okla. 297, 47 P. 1094 (1897). Cf. State v. Essling, 128 N.W.2d 307 (Minn. 1964), (Nelson, J., Concurring pp. 317-23.)

The respondents argue that this court has, on at least one occasion, deviated from the general rule that courts have no authority to invalidate legislation on the ground of legislative noncompliance with procedural statutes. In State ex rel. General Motors Corp. v. Oak Creek, 49 Wis. 2d 299, 182 N.W.2d 481 (1971), the basic and dispositive question was, however, whether the statute had been enacted in compliance with Article VIII, sec. 8 of the Wisconsin Constitution which requires that the yeas and nays be recorded in the legislative journals. Peripherally, a question was raised whether the statute had been validly enacted when the legislature had not first referred the matter to the joint finance committee as required by the provisions of sec. 13.10(1), Stats. (1967). This court held that the recording of yeas and nays in the legislative journal as set forth in the constitution was mandatory and that the legislature's failure to do so was sufficient to render the statute in question a nullity.

Despite this dispositive holding on constitutional grounds, this court concluding that sec. 13.10 was mandatory, also stated that the statute was a nullity because the legislature failed to comply with the ". . . statutory mandates for the enactment of a statute relating to taxation." Id. at p. 329. This language is obiter dictum because the court having concluded the statute was invalid on constitutional grounds, unnecessarily proceeded to discuss whether the statute was invalid due to the legislature's failure to follow statutory procedures. Because this dicta is inconsistent with the uniform holding of prior Wisconsin cases and the general rule which limits a court's authority to invalidate legislation only for constitutional violations, we withdraw this language in the Oak Creek case and expressly disavow any implication that this court will invalidate legislation when it finds the legislature has violated a procedural statutory provision in passing an act. Unless the claim is that the legislative procedure violated some constitutional provision or right, this court will not, under separation of powers concepts and affording the comity and respect due a co-equal branch of state government, interfere with the conduct of legislative affairs. This is consistent with this court's decision in State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 239 N.W.2d 313 (1976). The issue in that case was whether certain legislators had violated the open meeting law and whether they could be subject to forfeitures for such violations. The case did not present the question of the voidability of legislative actions taken in violation of the open meeting law. Id. at p 668. We hold that we will not invalidate a legislative action unless the legislative procedures or statute itself constitutes a deprivation of constitutionally guaranteed rights. Outagamie County v. Smith, supra, at p. 41. Because there is no claim here that the legislature's failure to comply with sec. 13.49 and refer A.B. 104 to the joint survey committee on debt management before passage amounts to a constitutional violation or deprivation, we will not further consider the issue of the validity of Act 3's enactment.

Accordingly, we turn to a consideration of whether the operating notes authorized by Act 3 amount to the state contracting public debt in contravention of the constitution.

Operating Notes as Public Debt

Art. VIII, sec. 4 of the Wisconsin Constitution states:

"The state shall never contract any public debt except in the cases and manner herein provided."

The constitution does not define the term public debt. However, this court has frequently been called on to determine what is public debt within the meaning of this constitutional prohibition. In State ex rel. Owen v. Donald, 160 Wis. 21, 151 N.W. 331 (1915) this court held that a legislative appropriation of money for the purchase of land for reforestation and water power purposes, was public debt within the ...

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