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League of Women Voters of Wisconsin v. Evers

Supreme Court of Wisconsin

June 21, 2019

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.

          Oral Argument: May 15, 2019

          APPEAL from an order of the Circuit Court for Dane County (L.C. No. 2019CV84), Richard G. Niess, Judge.

          For 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.

          For 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.

          For 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.

          An amicus curiae brief was filed on behalf of Wisconsin Democracy Campaign by Jeanne M. Armstrong, Christopher J. Dodge, and Fuhrman & Dodge, S.C., Middleton.

          An amicus curiae brief was filed on behalf of Wisconsin Manufacturers & Commerce by Corydon J. Fish and Wisconsin Manufacturers & Commerce.

          An 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.

          An 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.

          An 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.

         ¶1 We accepted the League of Women Voters of Wisconsin's[1] 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.[2] 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.[3] 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 appointments.

         ¶2 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.[4]

         I. BACKGROUND

         ¶3 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".)

         ¶4 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 budget deadline.
• 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 Extraordinary Sessions."
• Subsection (6) specifies the date for the "End of Term" of the 2017 legislature.

         ¶5 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 review floorperiod."

         ¶6 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.

         Paragraph (5)(b) provides:

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.

         Paragraph (5)(c) provides:

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.

         ¶7 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.

         ¶8 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.

         ¶9 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 Walker.[5]

         ¶10 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.

         ¶11 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.[6] 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.

         ¶12 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 ...


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