STATE OF WISCONSIN

CIRCUIT COURT
DANE COUNTY
BRANCH 9
___________________________________________________________
THE 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,
Case No. 19-CV-00084
Plaintiffs,

Case Code 30701 & 30704

v.
DEAN KNUDSON, JODI JENSEN, JULIE M. GLANCEY,
BEVERLY GILL, ANN S. JACOBS, MARK L. THOMSEN,
MEAGAN WOLFE, and TONY EVERS,
Defendants.

NON-PARTY BRIEF OF FORMER MEMBERS
OF THE WISCONSIN LEGISLATURE
AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS

Patrick O. Patterson, SBN 1014157
Law Office of Patrick O. Patterson, S.C.
7481 N. Beach Drive
Fox Point, Wisconsin 53217
popatterson@gmail.com
414-704-1896
Attorney for Amici Curiae

 TABLE OF CONTENTS

INTEREST OF AMICI CURIAE .................................................................................................... 1
ARGUMENT .................................................................................................................................. 5
I.

THE CONSTITUTION DOES NOT AUTHORIZE THE LEGISLATURE
TO CONVENE IN EXTRAORDINARY SESSION ABSENT STATUTORY
AUTHORITY, WHICH DOES NOT CURRENTLY EXIST ............................................ 6

II.

THE CONSTITUTION PROVIDES THE LEGISLATURE WITH
SUFFICIENT FLEXIBILITY TO CONDUCT ITS BUSINESS ....................................... 8

CONCLUSION ............................................................................................................................... 9

i

 TABLES OF AUTHORITIES
Cases
INS v. Chadha,
462 U.S. 919 (1983) ...............................................................................................8
John F. Jelke Co. v. Emery,
193 Wis. 311, 214 N.W. 369 (1927) ......................................................................4
Milwaukee Journal Sentinel v. Wis. Dep’t of Admin.,
2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700 ....................................................7
NLRB v. Noel Canning,
573 U.S. 513 (2014) ...............................................................................................8
United States v. Ballin,
144 U.S. 1 (1892) ...................................................................................................7
Wisconsin Constitution and Statutes
1987 Wis. Act 4, §§ 1-2 .............................................................................................8
Wis. Const. art. IV, § 7 ..............................................................................................7
Wis. Const. art. IV, § 11 ................................................................................... 5, 6, 7
Wis. Const. art. IV, § 17 ........................................................................................6, 7
Wis. Const. art. IV, § 28 ........................................................................................1, 5
Wis. Const. art. V, § 10 ..............................................................................................6
Wis. Const. art. XII, § 1 .............................................................................................8
Wis. Stat. § 13.02 .......................................................................................................5
Wis. Stat. § 196.497 ...................................................................................................8

ii

 Wisconsin Legislative Materials
Assembly Journal, Dec. 2018 Extraordinary Sess. (Wis. 2018) ............................6, 7
Joint Rule 81 ..............................................................................................................6
Other Authorities
R. Hedlund & W. Crane, Jr., The Job of the Wisconsin Legislator (1971) ...............6

iii

 INTEREST OF AMICI CURIAE
This case presents a question of first impression: whether the Legislature
exceeded its authority under the Wisconsin Constitution when it convened in
extraordinary session in December 2018 during which—in a span of less than 48
hours—it passed three bills that made sweeping changes to the laws of this State
and the Senate confirmed en masse 82 nominees to State authorities, boards,
councils, and commissions. See First Am. Compl., ¶¶ 27-50, 52-75. Plaintiffs
argue, and Amici agree, that the Legislature exceeded its constitutional authority in
convening the December 2018 extraordinary session, and that the actions taken by
the Legislature during that session are void and unenforceable. Accordingly, Amici
support Plaintiffs’ request for relief.
Amici—U.S. Senator Tammy Baldwin, former U.S. Senator Russ Feingold,
U.S. Representative Mark Pocan, and former U.S. Representative Dave Obey—all
served in the Wisconsin Legislature. Each was subsequently elected to represent
Wisconsin in the United States Congress, and each has direct knowledge of the
Legislature’s mandate to faithfully execute its duties and responsibilities in support
of the Constitution. Wis. Const. art. IV, § 28. As such, Amici have a unique
perspective on the limitations the Constitution imposes on the Legislature’s
authority.

1

 Senator Tammy Baldwin (D-Madison) represented the 78th Assembly
District in the Wisconsin Legislature from 1993 to 1999. In 1998, Sen. Baldwin
was elected to represent Wisconsin’s 2nd District in the U.S. House of
Representatives, serving until 2013. In 2012, she was elected to the U.S. Senate,
and she was reelected in 2018. Throughout her career, Sen. Baldwin has worked
across party lines to build consensus around bipartisan legislation to help
Wisconsinites. In 2019, she received the Bipartisan Policy Center’s Legislative
Action Award, which recognizes members who have demonstrated skill and
courage in the face of political challenges to confront substantive problems,
provided a positive tenor to the legislative process, and offered a template for
improving the functionality of the institution through their example.
Senator Russ Feingold (D-Middleton) represented the 27th Senate District in
the Wisconsin Legislature from 1983 to 1993. Sen. Feingold was elected to the
U.S. Senate in 1992, where he served until 2011 and gained a reputation as a
political “maverick” with an independent streak. His 18 years in the Senate were
marked by a willingness to support what he viewed as the best policies, regardless
of the party of the legislator or President proposing those policies. His reputation
for independence and bipartisanship was solidified by his work challenging
earmarks and wasteful spending, his approach to the impeachment trial of
President Clinton, his opposition to the USA Patriot Act, his vote to confirm Chief
2

 Justice John Roberts, and, perhaps most notably, his long advocacy for campaign
finance reform. Sen. Feingold—along with the late Sen. John McCain (RAriz.)—received the 1999 John F. Kennedy Profile in Courage Award for cosponsoring the Bipartisan Campaign Reform Act (popularly known as McCain–
Feingold).
Representative Mark Pocan (D-Madison) represented the 78th Assembly
District in the Wisconsin Legislature from 1999 to 2013. During that time, Rep.
Pocan held numerous leadership roles, including that of co-chair of the Joint
Committee on Finance. In 2009, Milwaukee Magazine honored Rep. Pocan as
Wisconsin’s “Best Legislator” in recognition of his reputation for forging
bipartisan policy solutions. In 2012, Rep. Pocan was elected to represent
Wisconsin’s 2nd Congressional District in the U.S. House of Representatives. He
has been reelected to Congress in 2014, 2016, and 2018. As in the Wisconsin
Legislature, Rep. Pocan has earned a reputation in Congress as an adept legislator
who can bridge the political divide between Democrats and Republicans.
Representative Dave Obey (D-Wausau) represented the Marathon 2
Assembly District in the Wisconsin Legislature from 1963 to 1969. Rep. Obey
played a key role in creating Wisconsin’s modern system of Technical College
Districts, for which he won national recognition, and in establishing the State’s
network of public broadcasting stations. Rep. Obey served as Assistant Democratic
3

 Assembly Leader before winning election to the U.S. House of Representatives in
1968, where he served Wisconsin’s 7th congressional district for 21 terms, until his
retirement in 2011. Rep. Obey is Wisconsin’s longest serving member of the U.S.
House of Representatives and served as Chairman of the powerful House
Committee on Appropriations in 1995 and again from 2007 to 2011. Rep. Obey is
as well known for his willingness to fight for his values as he is for his bipartisan
friendships. After retiring from Congress, Rep. Obey led a bipartisan speaking tour
with former Rep. Tom Petri, a Republican who represented Wisconsin’s 6th
congressional district for 18 terms; on this tour, they spoke to students and the
general public about the importance of civic participation in bipartisan discussions.
Amici believe that adherence to the Constitution is a fundamental element of
maintaining the integrity of the State’s democracy, and they recognize that the
Legislature is not immune from the constitutional limitations imposed on it. Amici
further acknowledge that the Constitution “is the mandate of a sovereign people to
its servants and representatives, and [that] no one of them has a right to ignore or
disregard its plain commands.” John F. Jelke Co. v. Emery, 193 Wis. 311, 321, 214
N.W. 369 (1927).
In light of the foregoing, Amici have a strong interest in ensuring that the
Legislature did not, and does not, intentionally or otherwise, disregard the

4

 Constitution’s limitations on its authority. Amici therefore submit this brief in
support of Plaintiffs’ request for relief.
ARGUMENT
As elected members of the Wisconsin Legislature, Amici swore an oath to
support the Wisconsin Constitution. Wis. Const. art. IV, § 28. They understood
that oath to mean that the Legislature could not act in excess of its constitutional
authority. Accordingly, Amici always sought to perform their legislative work in a
manner consistent with the law and the Constitution. Although extraordinary
sessions were held during some Amici’s tenure in the Legislature, Amici were not
directly involved in convening those sessions, and the issue presented by this case
was not, to their knowledge, raised at the time.
This lawsuit brought to Amici’s attention, for the first time, the question
presented here: whether the Legislature may constitutionally convene an
extraordinary session. After reviewing the relevant legal authority, Amici have
concluded that the Constitution and the current statutory regime do not allow the
Legislature to convene such a session and therefore believe that the December
2018 extraordinary session was convened outside the Legislature’s constitutional
authority.

5

 I.

THE CONSTITUTION DOES NOT AUTHORIZE THE
LEGISLATURE TO CONVENE IN EXTRAORDINARY SESSION
ABSENT STATUTORY AUTHORITY, WHICH DOES NOT
CURRENTLY EXIST.
The Wisconsin Constitution authorizes the Legislature to meet only “at such

time as shall be provided by law, unless convened by the governor in special
session.” Wis. Const. art. IV, § 11 (as amended in 1968). The only law providing
for meetings of the Legislature is Wis. Stat. § 13.02 (enacted in 1971), which
specifies that the Legislature shall meet annually in “regular session.” As scholars
recognized at the time of this constitutional amendment and statutory enactment,
meetings “provided by law”—known as regular sessions—and special sessions
called by the Governor are the only constitutionally permissible legislative
sessions. See R. Hedlund & W. Crane, Jr., The Job of the Wisconsin Legislator, at
5 (1971) (“In addition to regular sessions, the Governor is authorized to call special
sessions. Such sessions are restricted to considering the subject or subjects
specified by the Governor in his call.”).
The December 2018 extraordinary session did not satisfy the requirements
of Article IV, Section 11. It was not part of the regular session provided for by
“law,” nor was it convened by a call of the Governor. Instead, the extraordinary
session was convened by a majority of the Senate and Assembly organization
committees under Joint Rule 81, which itself was adopted pursuant to a joint
resolution. Assembly Journal, Dec. 2018 Extraordinary Sess., at 968 (Wis. 2018).
6

 Joint Rule 81 is not a “law” within the meaning of the Constitution: it was not
created by a bill passed by both houses of the Legislature, nor was it signed by the
Governor or readopted by a supermajority of the Legislature over the Governor’s
veto. Wis. Const. art. IV, § 17; id. art. V, § 10. See also, e.g., Milwaukee Journal
Sentinel v. Wis. Dep’t of Admin., 2009 WI 79, ¶¶ 24-25, 319 Wis. 2d 439, 768
N.W.2d 700 (legislative action that does not comply with constitutional
requirements is not a “law” within the meaning of Wis. Const. art. IV, § 17).
In addition, the Constitution requires that “a majority of each [house] shall
constitute a quorum to do business, but a smaller number may adjourn from day to
day.” Wis. Const. art. IV, § 7. But the December 2018 extraordinary session was
not convened by a majority of each house of the Legislature; rather, it was
convened by a mere majority of each house’s organization committee. Assembly
Journal, Dec. 2018 Extraordinary Sess., at 968. The organization committees do
not constitute a majority of each house. Id.; see also
https://docs.legis.wisconsin.gov/2017/committees/senate/1761;
https://docs.legis.wisconsin.gov/2017/committees/assembly/1654. To the extent
the Legislature now contends that Joint Rule 81 authorizes a majority of each
house’s organization committee to convene a meeting of the Legislature, it
disregards the Constitution’s quorum requirement. The Legislature “may not by its
rules ignore constitutional restraints.” United States v. Ballin, 144 U.S. 1, 5 (1892).
7

 II.

THE CONSTITUTION PROVIDES THE LEGISLATURE WITH
SUFFICIENT FLEXIBILITY TO CONDUCT ITS BUSINESS.
A plain reading of the Constitution provides the Legislature with sufficient

authority to meet as necessary, as long as such meetings are “provided by law” or
are convened by the Governor in a special session. Wis. Const. art. IV, § 11.
Requiring conformance to the Constitution’s dictates will not impair the
Legislature’s ability to conduct its business.
First, the Legislature effectively met in constitutionally authorized regular
and special sessions for more than 130 years before the first extraordinary session
was ever convened. (Dkt. 86 at 11.) And, in the years since, extraordinary sessions
have been used only sporadically. (Dkt. 103 at 6-7.). Such extraordinary sessions
are, in no way, fundamental to the proper functioning of the Legislature.
Second, the Legislature may, in accordance with the Constitution, enact a
“law” authorizing meetings other than “regular sessions,” which are the only
sessions currently authorized by law. See, e.g., Wis. Stat. § 196.497(10)(c) and
1987 Wis. Act 4, §§ 1-2. Alternatively, the Legislature could propose a
constitutional amendment—in accord with the process provided by the
Constitution—to authorize extraordinary sessions. Wis. Const. art. XII, § 1.
To date, the Legislature has not enacted a law, nor has it sought to amend the
Constitution to allow it to lawfully convene an extraordinary session like the one
held in December 2018. Neither historical practice nor legislative convenience
8

 overrides the Constitution’s limitations on the Legislature’s authority to lawfully
convene a meeting to conduct legislative business. See, e.g., INS v. Chadha, 462
U.S. 919, 945 (1983); NLRB v. Noel Canning, 573 U.S. 513, 584 (2014) (Scalia, J.,
concurring in judgment).
Until and unless there are changes to Wisconsin law or to the Wisconsin
Constitution, the Legislature does not have the authority to convene in
extraordinary session. Because the December 2018 extraordinary session was
unconstitutionally convened, the resultant laws and Senate confirmations are void
and unenforceable.
CONCLUSION
For the reasons stated above and in Plaintiffs’ memorandum of law, Amici
urge the Court to grant the relief requested by Plaintiffs.
DATE: March 13, 2019.
Respectfully submitted,

Electronically signed by Patrick O. Patterson
Patrick O. Patterson, SBN 1014157
Law Office of Patrick O. Patterson, S.C.
Address:
LAW OFFICE OF PATRICK O. PATTERSON, S.C.
7481 N. Beach Drive
Fox Point, Wisconsin 53217
popatterson@gmail.com
414-704-1896
9