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,
Tony Evers, in his official capacity as Governor of the State of Wisconsin, Defendant-Respondent, Wisconsin Legislature, Intervening Defendant-Appellant.
Argument: May 15, 2019
from an order of the Circuit Court for Dane County (L.C. No.
2019CV84), Richard G. Niess, Judge.
the intervening-defendant-appellant, there were briefs
filed by Misha Tseytlin and
Troutman Sanders LLP., Chicago, Illinois.
There was an oral argument by Misha Tseytlin.
the defendant-respondent, there was a brief filed by Tamara
B. Packard, Lester A. Pines, Aaron G. Dumas, Beauregard W.
Patterson, and Pines Bach LLP, Madison. There was an oral
argument by Tamara B. Packard.
the plaintiffs-respondents, there was a brief filed by
Jeffrey A. Mandell, Kurt M. Simatic, and Stafford Rosenbaum
LLP, Madison. With whom on the brief was Deana K.
El-Mallawany, Ben Berwick, and The Protect Democracy Project,
Inc., Watertown, Massachusetts; along with Lawrence S.
Robbins, Carolyn Forstein, Wendy Liu, and Robbins, Russell,
Englert, Orseck, Untereiner & Sauber LLP., Washington,
DC. There was an oral argument by Jeffrey A. Mandell.
amicus curiae brief was filed on behalf of Wisconsin
Democracy Campaign by Jeanne M. Armstrong, Christopher J.
Dodge, and Fuhrman & Dodge, S.C., Middleton.
amicus curiae brief was filed on behalf of Wisconsin
Manufacturers & Commerce by Corydon J. Fish and Wisconsin
Manufacturers & Commerce.
amicus curiae brief was filed on behalf of Law School
Professors Hal Harlow and Murphy Desmond, S.C., Madison; with
whom on the brief was Daniel Hemel and University of Chicago
Law School, Chicago, Illinois.
amicus curiae brief was filed on behalf of Legal Scholars by
Barry J. Blonien, Eric A. Baker, and Boardman & Clark
LLP, Madison; with whom on the brief was Robert Yablon and
University of Wisconsin Law School, Madison.
amicus curiae brief was filed on behalf of Sustain Rural
Wisconsin Network, River Alliance of Wisconsin, Friends of
the Lower Wisconsin Riverway, and Milwaukee Riverkeeper by
Robert D. Lee and Midwest Environmental Advocates, Madison.
REBECCA GRASSL BRADLEY, J.
We accepted the League of Women Voters of
Wisconsin's petition to bypass the court of appeals in
order to decide whether the Wisconsin Legislature's
December 2018 extraordinary session comported with the
Wisconsin Constitution. The League maintains that
extraordinary sessions are unconstitutional; therefore, all
legislation passed during the December 2018 session is void
ab initio and the Senate's confirmation of 82
gubernatorial appointees during the session was
invalid. Governor Tony Evers agrees with the
League. The Legislature argues that extraordinary sessions
clearly conform with the Wisconsin Constitution and Wis.Stat.
§ 13.02 (2017-18), making the passage of the three Acts
as well as the appointments entirely lawful. The circuit court
agreed with the League and the Governor, declared the Acts
unconstitutional, and issued a temporary injunction enjoining
the enforcement of all three Acts and vacating all 82
We hold that extraordinary sessions do not violate the
Wisconsin Constitution because the text of our constitution
directs the Legislature to meet at times as "provided by
law," and Wis.Stat. § 13.02(3) provides the law
giving the Legislature the discretion to construct its work
schedule, including preserving times for it to meet in an
extraordinary session. The work schedule the Legislature
formulated for its 2017-2018 biennial session established the
beginning and end dates of the session period and
specifically contemplated the convening of an extraordinary
session, which occurred within the biennial session. The
circuit court invaded the province of the Legislature in
declaring the extraordinary session unconstitutional,
enjoining enforcement of the three Acts, and vacating the 82
appointments. We vacate the circuit court's order and
remand the matter to the circuit court with directions to
dismiss the League's complaint.
The biennial session period for the 2017 Legislature began on
Tuesday, January 3, 2017 and ended at noon on Monday, January
7, 2019. The Legislature adopted its work schedule in 2017
Senate Joint Resolution 1, which was "[r]esolved by the
senate, the assembly concurring." (Hereinafter
JR1 contains two "Sections." "Section 1"
has six subsections:
• Subsection (1) lists the dates of the 2017-2018
session-January 3, 2017 to January 7, 2019.
• Subsection (2) extends the statutorily prescribed
• Subsection (3) sets forth "Scheduled floorperiods
and committee work periods."
• Subsection (4) sets the timeframe for the
"Interim period of committee work."
• Subsection (5) addresses "Special and
• Subsection (6) specifies the date for the "End of
Term" of the 2017 legislature.
Subsection (3) of Section 1 contains 24 paragraphs labeled
(a) through (x). Paragraph (3)(a) addresses
"Unreserved days" and provides:
Unless reserved under this subsection as a day to conduct an
organizational meeting or to be part of a scheduled
floorperiod of the legislature, every day of the biennial
session period is designated as a day for committee
activity and is available to extend a scheduled
floorperiod, convene an extraordinary session, or take senate
action on appointments as permitted by joint rule 81.
(Emphasis added.) Paragraphs (3) (b)-(x) set specific dates
for "Inauguration," "Floorperiod[s],"
"Bills to governor," "Nonbudget bills to
governor," "Budget bill to governor,"
"Last general-business floorperiod,"
"Limited-business floorperiod," and "Veto
Subsection (5) of Section 1, titled "Special and
Extraordinary Sessions" comprises three paragraphs.
Paragraph (5) (a) provides:
Adjournment. Except for consideration of executive
vetoes or partial vetoes, a motion adopted in each house to
adjourn a special or extraordinary session pursuant to this
joint resolution shall constitute final adjournment of the
special or extraordinary session.
Bills to governor. No later than 4:30 p.m. on the
first Thursday occurring 2 full weeks after the day a bill is
passed by both houses in identical form after May 9, 2018, in
special or extraordinary session, the chief clerk of the
house in which it originated shall submit it to the governor
for executive action thereon.
Veto review. A special or extraordinary session
shall reconvene upon a call of a majority of the members of
the joint committee on legislative organization solely for
the consideration of executive vetoes or partial vetoes if an
enrolled bill passed by both houses during the special or
extraordinary session was vetoed or partially vetoed.
The last subsection of Section 1 sets the "end of
term" and provides:
The biennial term of the 2017 legislature ends on Monday,
January 7, 2019. Pursuant to section 13.02(1) of the
statutes, the inauguration of the members of the 2019
legislature will be on Monday, January 7, 2019.
Finally, Section 2 of JR1 provides notice of the first
meeting date for the 2019 session organization:
Notice is hereby given that the biennial session of the 2019
legislature will hold its first meeting, pursuant to section
13.02(1) of the statutes, on Monday, January 7, 2019, and
that the meeting will begin at 2 p.m.
In December 2018, acting pursuant to JR1, Section 1, para.
(3) (a), the Legislature convened an extraordinary session
and passed three Acts that were subsequently signed into law
by Governor Scott Walker: (1) 2017 Wisconsin Act 368, (2)
2017 Wisconsin Act 369, and (3) 2017 Wisconsin Act 370.
During the same extraordinary session, the Senate also
confirmed 82 appointees nominated by Governor
On January 10, 2019, the League filed a summons and complaint
seeking a declaratory judgment and injunctive relief. The
League asked the Dane County Circuit Court to declare the
three Acts unconstitutional and unenforceable because, the
League alleged, each was passed in a constitutionally invalid
session. Similarly, the League contended in its Complaint
that confirmation of the 82 nominees during the extraordinary
session was unconstitutional and unenforceable. The Complaint
sought an injunction "barring any State official from
attempting to apply, implement, or enforce any actions taken
by the Legislature at the December 2018 Extraordinary
Session[.]" The case was assigned to Branch 15, the Hon.
Stephen E. Ehlke presiding.
Five days later, the League filed an Amended Complaint and a
motion for a temporary injunction. Both Complaints named as
Defendants seven officers of the Wisconsin Elections
Commission and Governor Tony Evers. Two weeks later, the
Legislature filed a motion to intervene. On the same day, the
League filed a request for substitution of Judge Ehlke, which
was granted, and the case was reassigned to the Hon. Richard
G. Niess. Judge Niess granted the Legislature's motion to
intervene. The Elections Commission defendants and
the Legislature filed motions to dismiss. The Legislature
also filed a motion requesting a stay of any injunction the
circuit court might issue.
The circuit court held a hearing on all of the pending
motions. Before the circuit court ruled on the Elections
Commission Defendants' dismissal motion, the parties
stipulated to their dismissal. In March 2019, the circuit
court issued an order denying the Legislature's motion to
dismiss, granting the temporary injunction, and denying the
Legislature's motion to stay the injunction. The
Legislature appealed to the court of appeals and after a
substantial number of filings and procedural matters not
relevant here, the League filed a petition with this court
requesting to bypass the court of appeals and asking
"for expedited Supreme Court review" because
uncertainty will loom until ...