In December 2018, the Republican-controlled Wisconsin Legislature enacted legislation during an “extraordinary session” that limited the powers of the newly-elected Democratic Governor Tony Evers and Attorney General Josh Kaul. Shortly thereafter, a number of organizations filed multiple lawsuits challenging the laws. On June 24, 2019, the Wisconsin Supreme Court issued its first decision addressing the constitutionality of the laws, ruling that the process used by the legislature to convene and pass the bills did not violate the Wisconsin Constitution.
In League of Women Voters of Wisconsin v. Knudson, the plaintiffs challenged the manner in which the legislature called itself into an extraordinary session to pass the bills. Specifically, the plaintiffs argued that legislature lacked the authority to call an “extraordinary session” after the regular session had ended. Instead, the plaintiffs argued that once the regular session has concluded the only other type of legislative session is a “special session” which can only be convened by the governor under article IV, section 11 and article V, section 4 of the Wisconsin Constitution. Based on this logic, because the extraordinary session was called by the legislative leaders, rather than the governor, the plaintiffs argued that the legislature lacked the authority to call the session and that the laws enacted during the extraordinary session were null and void. A trial court in Madison, WI agreed with this logic and struck down all of the enacted laws.
Wisconsin Supreme Court Decision
On June 22, the Wisconsin Supreme Court reversed the lower court and upheld the laws. First, the Court looked to the text of the constitution, which provides in pertinent part: “The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session[.]” WI Const. art. IV, sect. 11. This provision specifically authorizes the legislature to meet at the state capitol “at such time provided by law.”
Next, the Court looked to the statutory language under Wis. Stat. § 13.02, which is the only law that addresses when the legislature can meet. Specifically, subsection (3) provides that early in the biennial session the joint committee on legislative organization “shall meet and develop a work schedule for the legislative session.” Under this work schedule, which was authorized by § 13.02, the legislature convened an extraordinary session to pass the legislation limiting the governor’s and attorney general’s powers.
The Court held: “The plain text of § 13.02, directing a committee of the Legislature to ‘develop a work schedule for the legislative session,’ satisfies the ‘provided by law’ requirement under article IV, section 11, of the Wisconsin Constitution.”
In addition, the court cited article IV, section 8 of the constitution, which provides: “Each house may determine the rules of its own proceedings.”
Finally, the Court provided a lengthy discussion on the doctrine of separation of powers and the authority of the legislature to set its own rules. In applying those principles, the Court held the “judiciary may not interfere with the legislature’s execution of its constitutional duties.” While the judiciary’s “role does encompass consideration of the constitutionality of the laws enacted by the Legislature,” the Court explained that the “process by which laws are enacted, however, falls beyond the powers of judicial review.”
This is the first decision by the Wisconsin Supreme Court involving challenges to the extraordinary session laws. The Court will hear oral argument in its fall term in the second case, SEIU v. Vos, which alleges that the extraordinary session laws are an unconstitutional violation of the separation-of-powers doctrine. In the meantime, the laws will remain in effect pending the Court’s decision in SEIU v. Vos.
Andrew C. Cook is an owner of The Hamilton Consulting Group LLC.