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STATE OF WISCONSIN CIRCUIT COURT DANE COUNTY
BRANCH 9

 

THE LEAGUE OF WOMEN VOTERS
OF WISCONSIN, DISABILITY RIGHTS

OF WISCONSIN, INC., BLACK LEADERS FILED
ORGANIZING FOR COMMUNITIES,
GUILLERMO ACEVES, MICHAEL J. CAIN, MAR 21 2019
JOHN S. GREENE, and MICHAEL DOYLE, BANECOUNTYCIRCUITCOURI
Plaintiffs, 
v. Case No. 19 CV 84

DEAN KNUDSON, JODI JENSON,

JULIA M. GLANCEY, BEVERLY GILL,

ANN S. JACOBS, MARK L. THOMSEN,

MEAGAN WOLFE, and TONY EVERS,
Defendants,

and

THE WISCONSIN LEGISLATURE.

Intervening Defendant.

 

DECISION AND ORDER DENYING MOTION TO DISMISS, GRANTING.
TEMPORARY INJUNCTION, AND DENYING STAY OF TEMPORARY
INJUNCTION

 

STATEMENT OF THE CASE

Article IV, Section 11 of the Wisconsin Constitution controls when the
Legislature may meet:

11. Meeting of legislature

Section 11. 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

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session, and when so convened no business shall be transacted except as
shall be necessary to accomplish the special purposes for which it was
convened.

?Provided by law? means provided by duly-enacted statute.1 Accordingly,
except for special sessions convened by the Governor, the Wisconsin
Constitution permits the Legislature to meet only at such time as provided by
statute.

The sole statute enacted to implement Article IV, Section 11 is 13.02,
Stats, which provides:

13.02. Regular sessions
The legislature shall meet annually.

(1) The legislature shall convene in the capitol on the first Monday of
January in each odd?numbered year, at 2 to take the oath of of?ce,
select of?cers, and do all other things necessary to organize itself for the
conduct of its business, but if the first Monday ofJanuary falls on January 1
or 2, the actions here required shall be taken on January 3.

(2) The regular session of the legislature shall commence at 2 pm. on
the first Tuesday after the 8th day of January in each year unless otherwise
provided under sub. (3).

(3) Early in each biennial session period, the joint committee on
legislative organization shall meet and develop a work schedule for the
legislative session, which shall include at least one meeting inJanuary of each
year, to be submitted to the legislature as a joint resolution.

(4) Any measures introduced in the regular annual session of the odd?
numbered year which do not receive final action shall carry over to the
regular annual session held in the even?numbered year.

Months after final adjournment of its regular session in 2018 during the
2017-19 biennium, the Legislature met in a December 2018 ?Extraordinary
Session? convened, not as a special session by the Governor (or even by a
quorum of either the senate and assembly), but by a majority of two committees

 

17. Enactment of laws

Section 17. (1) The style of all laws of the state shall be ?The people ofthe state of Wisconsin,
represented in senate and assembly, do enact as follows:?.

(2) No law shall be enacted except by bill. No law shall be in force until published.

(3) The legislature shall provide by law for the speedy publication of all laws.

Wis. Const. art. IV, 17. See also Wis. Const. art. V, 10 and State v. City of Oak Creek, 232
Wis, 2d 612, 629 (2000) (?the drafters meant statutory law when they used the phrase, 'provided
by 

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of the Legislature. During the ?Extraordinary Session three bills were adopted
by the Legislature3 that were then enacted by the Governor?s signature in short
order. Additionally 82 nominees were confirmed for positions on various State
of Wisconsin authorities boards councils and commissions.

Plaintiffs5 file this action under 806.04, Stats, for a judgment declaring
that the December 2018 ?Extraordinary Session? violated 13.02, Stats. and
therefore was unconstitutional under Article IV, Section 11 of the Wisconsin
Constitution because the Legislature did not meet ?at such time provided by
law.? Arguing that bills adopted by the Legislature during meetings convened in
violation of the Wisconsin Constitution are ultra vires and void ab initio, Plaintiffs
additionally seek an injunction barring further application, enforcement or
implementation of Acts 368, 369, 370, and the confirmation of the 82 nominees.

Currently before the Court are the following motionsez

(1) The Legislature?s motion to dismiss Plaintiffs? Amended Complaint
under 802.06 Stats, for failure to state a claim upon which
relief may be granted;

(2) The Plaintiffs? motion for temporary injunction (joined by Defendant
Governor Evers);

(3) The Legislature?s alternative motion to stay any temporary injunction
ordered by this Court.

 

2 The Assembly Committee on Assembly Organization and the Senate Committee on Senate
Organization.

3 2017 Wisconsin Act 368, 2017 Wisconsin Act 369. and 2017 Wisconsin Act 370.

4 The "Extraordinary Session" was called by the two legislative committees on Friday November
30, 2018, the Legislature met in ?Extraordinary Session" on Monday December 3, 2018,,and
adjourned with its business complete on December 5, 2018. Governor Walker?s signatures
followed a week later on Thursday, December 13. 2018.

5 Plaintiffs are alleged to be a mix of not?for?profit, non-partisan, non-stock advocacy corporations
(The League of Women Voters of Wisconsin and Disability Rights Wisconsin, Inc). an
unincorporated community organizer/voter advocacy project (Black Leaders Organizing for
Communities), individual taxpayers/citizen advocates (Guillermo Aceves, Michael J. Cain and
John SGreene), and a county clerk suing in his official capacity (Green County Clerk Michael
Doyle).

6 The Court previously ordered the Legislature's permissive intervention as a party defendant
based upon stipulation of the parties. Furthermore, after oral argument. upon stipulated terms of
the parties, the Court dismissed the Piaintiffs? Amended Complaint without prejudice against the
Wisconsin Elections Commission officials. Defendants Dean Knudson, Jodi Jenson, Julia M.
Glancey, Beverly Gill. Ann 8. Jacobs, Mark L. Thomsen and Meagan Wolfe.

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The motions have been fully and expertly briefed by the parties and the
twelve amici curiae law professors. All concur that there are no disputed material
factual issues requiring an evidentiary hearing on the motion for temporary
injunction. Instead, they agree, as does the Court, that the issues presented by
the pending motions are purely legal issues ripe for decision.

For the following reasons, the Court DENIES the remaining motion to
dismiss, GRANTS the temporary injunction, and DENIES the motion for a stay of
the temporary injunction.

THE MOTION TO DISMISS

Recent amendments to the Wisconsin Rules of Civil Procedure require
this Court to decide the Legislature?s motion to dismiss before considering?the
motion for temporary injunction:

Upon the ?ling of a motion to dismiss under sub. a motion
for judgment on the pleadings under sub. (3), or a motion for more de?nite
statement under sub. (5), all discovery and other proceedings shall be
stayed for a period of 180 days after the ?ling of the motion or until the
ruling of the court on the motion, whichever is sooner, unless the court
?nds good cause upon the motion of any party that particularized discovery
is necessary.

Stats, (boldface added.)

The Legislature moves for dismissal under claiming the
Amended Complaint fails to state a claim for which relief may be granted. The
motion is DENIED because, as will be seen below, not only does the Amended
Complaint state a valid claim for relief, but a successful one.

In its briefing, the Legislature perches its dismissal motion on the doctrine
of standing, although the motion to dismiss itself does not. Presuming without
deciding that standing is necessarily placed at issue in motions,
the Legislature?s dismissal motion must still be denied.7 This is because the

 

7 Beyond all of this discussion on standing and failure to state a claim lurks a more fundamental
procedural inquiry regarding whether the Legislature, as an intervening party defendant, may
move to dismiss a claim against an entirely separate defendant where that separate defendant
does not seek dismissal of the claim. In what other action may one defendant seek an order
materially affecting another defendant?s case over that other defendant?s objection? While
permitted to intervene, the Legislature must play by the same rules as any other party. Certainly it
may seek dismissal of this action against itself, which would likely be granted without objection,
but then, why intervene in the first place?

The upshot is that a motion to dismiss is the wrong tool for the job here because a
successful motion to dismiss can only place the Legislature back into the position of sideline
spectator watching the case proceed against the other defendants, the position it occupied before
it intervened. Dismissing the Legislature cannot yield the result the Legislature seeks, Le, a
declaration that its December 2018 meeting was constitutional.

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Court need not decide, at the temporary injunction stage, whether some or even
all of the Plaintiffs lack standing because Governor Evers has adopted and
incorporated their positions as his own, and his standing to pursue the
declaratory and injunctive relief requested here cannot be reasonably
questioned.9 This is true for at least three reasons.

First, the doctrine of parens patri'ae [as most encapsulated in
provides the Governor standing to institute and prosecute
actions to protect the rights, interests or property of the state. See also State ex
rel. Reynolds v. Smith, 19 Wis. 2d 577, 584 (1963).

Second, the Governor?s own authority and powers are directly affected by
many of the allegedly unconstitutional confirmations and legislative acts that
resulted from the December 2018 ?Extraordinary Session."

Third, on these facts, it would be perverse for this Court to grant the
Legislature permissive intervention to participate as a party to this lawsuit, and
not grant the same opportunity to the Governor. 

MOTION FOR TEMPORARY INJUNCTION

The standards governing this Court's discretionary decision to grant a
temporary injunction are well entrenched in Wisconsin law and summarized by
the Supreme Court in Werner v. A. L. Grootemaat Sons, Inc, 80 Wis. 2d 513,
519-21 (1977) (footnotes omitted):

As to the exercise of such discretion, *520 this court has stated the following
guidelines: Injunctions, whether temporary or permanentits final brief and oral argument, the Legislature conceded that some of the Plaintiffs had
standing for some of the claims. Since the challenge by plaintiffs here attacks the procedure by
whiCh all the December 2018 laws were passed, any standing by plaintiffs appears sufficient to
allow this case to proceed.

9 The Legislature?s reliance on State v. City of Oak Creek, 232 Wis. 2d 612, 626 (2000) is
misplaced, because Oak Creek dealt exclusively with the Attorney General's standing under
constitutional and statutory law applicable only to that office.

10(1) State property; legal protection of. The governor, whenever in the governor's opinion
the rights, interests or property of the state have been or are liable to be injuriously affected, may
require the attorney general to institute and prosecute any proper action or proceeding for the
redress or prevention thereof; and whenever the governor receives notice of any action or
proceeding between other parties by which the rights, interests or property of the state are liable to
be injuriously affected, the governor shall inform the attorney general thereof and require the
attorney general to take such steps as may be necessary to protect such rights, interests, or

property.
Stats.

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As to the exercise of such discretion, *520 this court has stated the following
guidelines: Injunctions, whether temporary or permanent, are not to be
issued The cause must be substantial.4 A temporary injunction is not
to be issued unless the movant has shown a reasonable probability of
ultimate success on the merits.5 Temporary injunctions are to **314 be issued
only when necessary to preserve the status quo.6 Injunctions are not to be
issued without a showing of a lack of adequate remedy at law and irreparable
harm,7 but at the temporary injunction stage the requirement of irreparable
injury is met by a showing that, without it to preserve the status quo
pendente lite, the permanent injunction sought would be rendered futile.8
*521 While standards for the granting of temporary and permanent
injunctive relief differ,9 the presence of irreparable injury and inadequate
remedy at law are relevant factors to consider in granting either temporary or
permanent injunctions for the reason that, ?(Df it appears . . . that the
plaintiff is not entitled to the permanent injunction which his complaint
demands, the court ought not to give him the same relief
temporarilymo Thus, a showing of irreparable injury and inadequate remedy
at law is required for a temporary as well as for a permanent injunction.

Thus, this Court may exercise its discretion here to grant the extraordinary
remedy of a temporary injunction only if Plaintiffs (or Governor Evers) have
demonstrated (1) they have a reasonable likelihood of success on the merits of
their claims; (2) that an injunction is needed to preserve the status quo; (3) that
they have no adequate remedy at law, such as damages; and (4) irreparable
harm will occur if an injunction is not entered. As will be seen in what follows,
Plaintiffs and Governor Evers satisfy all four criteria for entry of a temporary
injunction.

l. Substantial Likelihood of Success on the Merits

Article IV, Section 11 was initially adopted into the Constitution by the
people of Wisconsin in 1848, and subsequently amended in 1881 and 1968, as
part of an overall constitutional package specifically designed to constrain
legislative overreach and safeguard the people?s liberty from irregular, capricious,
precipitous, and unpredictable meetings of the Legislature. As amici curiae law
professors demonstrate without dispute in this record, irregular legislative
sessions and nationwide legislative malfeasance, even corruption, were very real
grievances with the colonists before statehood. The people of Wisconsin sought
to avoid a continuation of these colonial-era abuses involving irregular meetings
of the Legislature by, among other things, adopting Article IV, Section 11 as a
check on the Legislature?s othenivise unfettered discretion.

In requiring regular sessions pursuant to announced legislative schedules,
supplemented by special sessions convened by the Governor on ?extraordinary
occasions,? Article lV, Section 11 and Article V, Section 10 were designed
specifically to foster the people?s rights to attend legislative sessions, petition,
lobby, and keep apprized of legislative activity. At the same time, these

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constitutional provisions provided ample flexibility to the Legislature to conduct its
business by enacting statutes available for all the people to see - setting times
for the Legislature to meet.

The bottom line in this case is that the Legislature did not lawfully meet
during its December 2018 ?Extraordinary Session,? which therefore proceeded in
violation of both Article lV, Section 11 of the Wisconsin Constitution and its sole
implementing statute 13.02, Stats. The former constrains the Legislature from
meeting except in two circumstances: (1) ?at such time as shall be provided by
law,? by statute, (2) ?unless convened by the governor in special session.?

Neither circumstance occurred with the December 2018 "Extraordinary
Session.? For whatever reason, Governor Walker did not exercise his
constitutional authority to call a special session. And Section 13.02 does not set
any ?time" for an extraordinary session, as required by Article IV, Section 11.
indeed, nothing in 13.02, Stats, authorizes the Legislature to self-convene and
meet, as it did last December, upon mere committee vote months after final
adjournment of its 2018 regular session.

Again, 13.02, Stats, provides:
13.02. Regular sessions
The legislature shall meet annually.

(1) The legislature shall convene in the capitol on the first Monday of
January in each odd-numbered year, at 2 to take the oath of of?ce,
select of?cers, and do all other things necessary to organize itself for the
conduct of its business, but if the ?rst Monday of January falls on January 1
or 2, the actions here required shall be taken on January 3.

(2) The regular session of the legislature shall commence at 2 p.m. on
the first Tuesday after the 8th day of January in each year unless otherwise
provided under sub. (3).

(3) Early in each biennial session period, the joint committee on
legislative organization shall meet and develop a work schedule for the
legislative session, which shall include at least one meeting in January of each
year, to be submitted to the legislature as a joint resolution.

(4) Any measures introduced in the regular annual session of the odd?
nurnbered year which do not receive ?nal action shall carry over to the
regular annual session held in the even-numbered year.

This Court must apply 13.02, Stats, as written.

The statute nowhere mentions, even indirectly, that a previously
unscheduled meeting of the full Legislature in ?extraordinary session" may be

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convened by a handful of legislators on two legislative committees?. Indeed, the
term ?extraordinary session? is not found in 13.02.

Even if such ?extraordinary sessions? were contemplated by ?13.02, the
statute sets no time for convening such as expressly required by Article. lV,
Section 11. This statutory omission is alone fatal to the Legislature?s position
here, which, in effect, demotes the controlling language in Article IV, Section 11
(?the legislature shall such time as shall be provided by law?) to the
status of mere surplusage, non-essential language. Our Supreme Court
cautions, however, that constitutional language is to be read, wherever possible,
to give reasonable effect to every word, in order to avoid surplusage. Applin'g v.
Walker. 358 Wis. 2d 132, 155 (2014).

In contrast to its silence on ?extraordinary sessions,? ?13.02 expressly
addresses regular sessions in multiple sections. The statute itself is entitled
?Regular sessions? which, while alone not dispositive, nonetheless is ?persuasive
evidence of a statutory interpretation.? Mireles v. Labor and Industrial Review
Commission, 237 Wis. 2d 69, 93, n.13 (2000).

Subsections (2) and (4) of 13.02 concern only ?regular? sessions, while
subsection (1) authorizes only a single organizational convening for the
Legislature ?to organize itself for the conduct of its business? at the outset of the
biennium. Finally, subsection (3) orders the joint committee on legislative
organization to meet early in the ?biennial session period? and develop
a work schedule for the legislative session, to be submitted to the Legislature as
a joint resolution.

In short, where it expressly addresses meetings of the full Legislature,
?13.02 is written specifically to implement the temporal commands of Article IV,
Section 11.

So, applying the statute as written, where is the constitutionally-requjred
language that authorized the eight legislators on the Assembly Committee on
Assembly Organization and the Senate Committee on Senate Organization to
convene a meeting of the full Legislature in the December 2018?

The Legislature argues that subsection (3) empowers the JCLO to
develop a joint resolution that would permit these two legislative committees, on
majority vote, to convene the full Legislature for a surprise meeting at any time
during the biennial period when it is not otherwise in regular session. in other
words, contrary to its unequivocal constitutional mandate, the Legislature
interprets subsection (3) as permitting the Legislature to meet other than ?at such
time as provided by law.? -

 

1? Only 5 assembly representatives (out of 99 total) and 3 senators (out of 33 total) voted to
convene the December 2018 meeting of the entire Legislature within one working day.

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But 13.02 (3) does not say this, or anything close. It merely directs the
JCLO to develop a work schedule early in the biennium to submit to the
Legislature by joint resolution. Developing a work schedule is a far cry from
granting two legislative committees the power to convene previously
unscheduled meetings of the full Legislature such as what occurred in December
2018. Indeed to repeat the people's primary purpose in adopting Article IV,
Section 11 was to prevent such a happening.

The Legislature doubles down on its theory by referencing 2017 Senate
Joint Resolution 1, which it contends specifically authorized ?extraordinary
sessions? in the form of ?non-prescheduled floor periods.? However, such an
attenuated theory neither satisfies 13.02 (3), nor provides justification for the
Legislature?s December 2018 meeting. This is true for several reasons.

First, 13.02 (3) only authorizes the JCLO to develop a ?work schedule
for the legislative session." A ?non-prescheduled floor period? is the antithesis of
a "work schedule,? by both definition and force of logic.

Second, the words ?non-prescheduled floor period? do not appear
anywhere in the Constitution, the statute, or even the joint resolution. The
concept is a post hoc fiction crafted to justify the authority the Legislature
wrongfully assumed to convene and meet in its December 2018 ?Extraordinary
Session.?

Third, and most importantly, Article IV, Section 11 only authorizes
meetings of the Legislature ?at such times as allowed by law,? statute. A
non-prescheduled floor period, by its very nature, is not a meeting ?at such time
as allowed by law.?

Moreover, even if it had set a time for the Legislature to meet in
?extraordinary session? (again, it did not), 2017 Senate Joint Resolution 1 is not
?law.? See Article IV, Section 17 of the Wisconsin Constitution. Legislative rules
are always subject to judicial review to ensure their compliance with the
Constitution. See State ex rel. Ozanne v. Fitzgerald, 334 Wis. 2d 70 (2011)
(Prosser, J., concurring).12

This Court cannot uphold the December 2018 ?Extraordinary Session? and
remain true to Article IV, Section 11 of the Wisconsin Constitution and 13.02,
Stats, as they were written. Through coiled reasoning, the Legislature essentially
adds language and meaning into the Constitution that the people of Wisconsin
did not approve.

 

12 Here, the Legislature?s contention, pressed at oral argument, that this Court lacksjurisdiction in
this case is simply wrong, not only under Ozanne, but under express constitutional language
itself. See Article VII, Section 8. Of. State v. Chvala, 271 Wis. 2d 115, 1] 49, 149 (Ct. App.
2004), 279 Wis. 2d 216 (2005).

~57

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The Legislature?s argument, if accepted, would swallow much of Article IV,
Section 11 whole. By allowing the Legislature to create its own authority to meet
in previously unscheduled sessions, not at a time set by law as the Constitution
commands, but any time at all through mere joint resolutions approved by just a
few' legislators on short notice indeed, even with no notice at all - much of
Article IV, Section 11 essentially disappears.

So too would the protections guaranteed by Article IV, Section 11, which
were no trifling matters for the state?s founders when the Wisconsin Constitution
was adopted. That the people? 3 liberty is imperiled by a Legislature that can meet
at will ?any time, with little warning and even less of a published agenda, was a
genuine threat on the minds of the people in 1848

The adverse consequences for the people ?owing from the Legislature?s
ultra vires act here are even more insidious than apparent at first glance.
Consider: in carving out a special session exception for the Governor, the
people expressly constrained the scope of such a special session by adopting
the following language in Article VI, Section 11: ?when so convened no business
shall be transacted except as shall be necessary to accomplish the special
purposes for which it was convened.?

No such limitation would restrain the Legislature?s self-convened meetings
in ?extraordinary sessions." The upshot is a perverse application of the people?s
will expressed in Article IV, Section 11, and an end-run around regular sessions.
Express authority granted to the Governor to call special sessions would be
constrained, while fabricated ?extraordinary sessions? convened at will
and on short notice by a few lawmakers at any time during the biennium would
be wide-open affairs. -

Consider further: why would the people expressly grant the Governor
authority to call the Legislature into session on ?extraordinary occasions? but
not expressly grant the same authority to the Legislature if that was in fact the
people?s intent in adopting Article IV, Section 11?

The Legislature?s argument is a non-starter where it posits that the
December 2018 ?Extraordinary Session" must be constitutional because
extraordinary sessions have been repeatedly used in the past without objection.
As United States Supreme Court Justice Antonin Scalia noted in reference to the
United States Constitution, ?t]he historical practice of the political branches is, of
course, irrelevant when the Constitution is clear.? N.L.R.B. v. Noel Canning, 573
US. 513, 584 (2014), (Scalia, J., concurring). Wisconsin is in accord:

customary violation of the plain language of the law gives no authority for
continuing such violation.? State ex nel. Rayner 12. Canning/7am, 82 Wis. 39, 50

 

'3 Article V, Section 4 of the Wisconsin Constitution.

10

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[51 N. W. 1133]; Suth. Stat. Const. 308; State ex rel. Wait a. Board of
5.6/900/ Dz'im'et, 76 Wis. 177 [44 N. W. 967, 7 L. R. A. 330, 20 Am. St. Rep.
?Acquiescence for no length of time can legalize a clear usurpation of
power, where the people have plainly expressed their will in the Constitution
and appointed judicial tribunals to enforce it.? Cooley's Const. Lirn. (7th Ed.)
c. 4, pp. 106, 107.

Bd. of Trustees of Lawrence Univ. v. Outagamie Cty., 150 Wis. 244 (1912).

The question becomes, so what if the procedure used to enact the laws
was constitutionally defective? Do procedural illegalities that produced ,the
legislation doom the legislation itself? After all, after the Legislature self-
convened on one business day?s notice, the full Legislature passed the
legislation and confirmations, which were then enacted by the Governor?s
signature and publication by the Secretary of State.

The answer, as conceded by the Legislature at oral argument, is thisz'the
Legislature's failure to comply with constitutional procedural requirements for
legislative action invalidates the action. Wisconsin Prof] Police Ass'n, Inc. v.
Lightbourn, 243 Wis. 2d 512, 561 (2001). See also State ex rel. La Follette v.
Stitt, 114 Wis. 2d 358, 366 (1983).

An unconstitutional act of the Legislature is not a law; it confers no rights, it
imposes no penalties, it affords no protection, and is not operative; and in
legal contemplation it has no existence.

State ex rel. Kteist v. Donald, 164 Wis. 545, 552-53 (1917) [quoted with approval
in Hunter v. School Dist. of 97 Wis. 2d 435, '444
(1980)].

Thus, the unconstitutional December 2018 ?Extraordinary Session? cannot
be considered just an instance of ?no harm, no foul." The foul is revealed above;
the harm inheres in the people?s loss of the protections they embraced in
adopting Article IV, Article 11 in the first place.

ll. Preservinq the Status Quo

The function of the injunction pendente lite under our practice has been
largely discussed in several recent cases; notably Valley Iron Co. v. Goodrich,
103 Wis. 436, 78 N. W. 1096, Milwaukee Electric ?ght Co. v. Brad/e 108
Wis. 467, 84 N. W. 870, and Bartlett Bartlett, 116 Wis. 450, 460, 93 N. W.
473, with the result of declaring generally that, Where the complaint states a
cause of action, and the motion papers disclose a reasonable probability of
plaintiffs ultimate success, it is well?nigh an imperative duty of the court to
preserve the status quo by temporary injunction, if its disturbance pendente
lite will render futile in considerable degree the judgment sought, or cause
serious and irreparable injury to one party; especially if injury to the other is

11

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slight, or of character easily compensable in money; and that the discretion
vested in the court is largely over the question of terms of the restraint and
the protection of rights by bonds from one party to the other. ?Not only
does the discretionary power exist to protect a party against such danger, but
the duty exists to exercise it by making some reasonable provision to prevent
such injury.? Milwaukee Eleem'e R. Light Co. 0. Bradley?, 108 Wis. 486, 84 N.
W. 877. This View is supported by section 2774, Rev. St. Wis. 1898, which
confessedly was intended to enlarge the duty of the court as it existed under
former Chancery practice. Trustees v. Hoessli, 13 Wis. 348.

De Pauw v. Oxley, 122 Wis. 656 (1904).

To decide whether an injunction is necessary to preserve the status quo
during the pendency of this action, this Court must first determine what is meant
by ?status quo.? After all, many of the fruits of the Legislature?s unconstitutional
December 2018 meeting have been or are being implemented, the limited federal
court injunction notwithstanding.

Wisconsin law appears silent on this question, although other courtseare
not.

But the courts define ?status quo? as the last peaceable, uncontested status of
the parties which preceded the actions giving rise to the issue in
controversy. Wertz'nglaome Elee. Corp. 21. Free Sewing lVIae/a. Ca, 256 F.2d 806, 808
(7th Cir.1958). As the Fifth Circuit has stated:

It must not be thought, however, that there is any
particular magic in the phrase 'status quo.? The purpose of
a preliminary injunction is always to prevent irreparable
injury so as to preserve the court's ability to render a
meaningful decision on the merits. It often happens that
this purpose is furthered by preservation of the status quo,
but not always. Ifthe currently existing status quo itselfis
causing one of the parties irreparable injury, it is necessary
to alter the situation so as to prevent the injury, either by
returning to the last uncontested status quo between the
parties, by the issuance of a mandatory injunction, or by
allowing the parties to take proposed action that the court
finds will minimize the irreparable injury. The focus
always must be on prevention of injury by a proper order,
not merely on preservation ofthe status quo.

Canal Authority 22. Cal/away, 489 F.2d 567, 576 (5th Cir.1974) (citations
omitted). Thus, Can Co. a. A.B. Dine, No. 83 Civ. 
1983 WL 2198, at *13 (S.D.N.Y.1983) Bus. Franchise Guide (CCH) 1] 8097,
the court declined to grant a preliminary injunction in part on the ground
that, ?[c]learly, the ?last uncontested status' of the parties in the instant case

12

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existed prior to American Can's assignment by subterfuge or restructure, of
its duties under the Distribution Agreement to Just as clearly, the last
uncontested status of the parties in this case is that which existed before
Praefke was terminated as an ASD, rather than a status that existed after it
was terminated without notice.

Praefke Auto Elec. Battery Co. v. Tecumseh Prod. 00., 123 F. Supp. 2d 470,
473 (ED. Wis. 2000).

Applying these considerations, the status quo in this case is the state of
the law before the Legislature unconstitutionaliy acted in December 2018. Failing
to enjoin the illegal actions of the Legislature would result in substantial changes
to Wisconsin government, the administration of federal benefits and programs,
election administration and transportation projects all occurring pursuant to
laws that do not exist.

A temporary injunction here is thus necessary to preserve the status quo.
Ill. No Adequate Remedy at Law

None of the parties argues that an adequate remedy at law exists on
these facts, and the Court is unable to envision one.

IV. lrreparable Harm

 

The parties? briefs debate at length the specific, irreparable harms caused
by the laws enacted during the illegal December 2018 ?Extraordinary Session.?
For this Court, however, these arguments miss the mark, which is this. Failure by
this Court to enjoin the execution of void laws cannot be seen as anything other
than irreparable harm to a constitutional democracy such as ours. The rule of law
the very bedrock of the Wisconsin Constitution cannot, in any respect, abide
enforcement of laws that do not exist.

CONCLUSION AND ORDER FOR TEMPORARY INJUNCTION

Two immutable principles of our constitutional democracy command the
result in this case: (1) the Wisconsin Constitution is the supreme law in
Wisconsin on state matters, and (2) both the Constitution and state statutes must
be construed as written, not how the Legislature now wishes they had been
written.

The Legislature?s December 2018 ?Extraordinary Session" transgresses
both principles. By meeting in the December 2018 "Extraordinary Session?
without statutory authority, the Legislature has thwarted the peoples?
constitutional constraints on legislative action, the results of which cannot stand.

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The Constitution is either a superior, paramount law,
unchangeable by ordinary a"*"703 means, or it is on a level
with ordinary legislative acts, and, like other acts, is
alterable when the legislature shall please to alter it. If the
former part of the alternative be true, then a legislative act
contrary to the Constitution is not law; if the latter part be
true, then written Constitutions are absurd attempts on
the part of the people to limit a power in its own nature
illimitable.

Marbug, 5 US. (1 Cranch) at 177. Judicial respect for its co?equal branch,
the legislature, cannot amount to surrender of judicial power or abdication of

judicial duty.

Mayo v. Wisconsin Injured Patients Families Comp. Fund, 383 Wis. 2d 52
(2018) (Bradley, R.J., concurring).

The Court orders a temporary injunction forthwith prohibiting Defendants
from enforcing any provision of 2017 Wisconsin Act 368, 2017 Wisconsin Act
369, and 2017 Wisconsin Act 370. Defendants are further enjoined from
enforcing the confirmation of the 82 nominees/appointees to the various State
authorities, boards, councils, and commissions that occurred during the
December 2018 ?Extraordinary Session". The appointments are ordered
temporarily vacated as a necessary consequence of this temporary injunction.

THE MOTION TO STAY THE TEMPORARY 

The Legislature alternatively moves for an order staying the temporary
injunction while it pursues its statutory appellate rights. The motion to stay is
DENIED.

An unconstitutional law is void ab initio. It is as if it never existed; it is no
law at all.

On this point, the Wisconsin Supreme Court has been unequivocal and
unwavering. ?An unconstitutional act of the Legislature is not a law; it confers no
rights. it imposes no penalties, it affords no protection, and is not operative; and
in legal contemplation it has no existence.? State ex rel. Kleist v. Donald, 164
Wis. 545, 552-53, 160 NW. 1067 (1917) (quoted with approval in Hunter v.
School Dist. of Gale-Ettrick?Trempealeau, 97 Wis.2d 435, 444, 293 515
(1980)). See also Berlowitz v. Roach, 252 Wis. 61, 64, 3O 256 (1947)
(quoting Kleist State ex rel. Martin v. Zimmerman, 233 Wis. 16, 288 NW. 454,
457 (1939) (?with respect to an unconstitutional law the matter stands as if the
law had not been passed?); John F. Jelke Co. v. Hill, 208 Wis. 650, 661, 242
N. 576 (1932) (an unconstitutional act is not a law); Bonnett v. Vallier, 136
Wis. 193 200,116 N. W. 885 (1908) (an unconstitutional legislative enactment is
no law at all).

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Therefore, there can be Q9 justification for enforcement of the
unconstitutional legislative actions emanating from the December 2018
?Extraordinary Session" that is consistent with the rule of law.

How could it be otherwise? All Wisconsin judges bind themselves by
solemn oath to uphold and support the Wisconsin Constitution. In what way is
that oath honored when a court enforces indeed, countenances at all laws
that violate the Constitution and, by that fact, do not even exist?

The parties debate the four Gudenshwager factors on this point. This
Court doubts Gudenshwager?s applicability here because it is pure nonsense to
suggest that any court may ever endorse the continued viability of
unconstitutional and non-existent laws. That said, even if we apply the four
factors to the temporary injunction ordered here, the stay must be denied,
because none of the factors supports the Legislature?s motion. 

Gudensh wager holds:

A stay pending appeal is appropriate where the moving party:

(1) makes a strong showing that it is likely to succeed on the merits of the
appeal;

(2) shows that, unless a stay is granted, it will suffer irreparable injury;

(3) shows that no substantial harm will come to other interested parties; and
(4) shows that a stay will do no harm to the public interest.

State v. 191 Wis. 2d 431, 440 (1995), holding modi?ed by State
v. Scott, 382 Wis. 2d 476 (2018).

The Legislature has shown no likelihood of success on the merits, as seen
in the analysis above.

Moreover, as for irreparable injury. the Legislature suffers none as a
consequence of this Court's refusing enforcement of its unconstitutional actions.
No law prevents the Legislature from reintroducing and passing the
laws proposed in Acts 368, 369, and 370 during scheduled regular sessions in
the current biennial period.

The Legislature attempts to scare this Court into abandoning its duty to
vacate unconstitutional laws by urging an alarmist domino-theory collapse of
laws previously produced by ?extraordinary sessions." The theory is unsupported
by either law or facts in this record, is pure speculation, and, most importantly,
not at issue under this Court?s temporary injunction, which is expressly limited to

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the laws enacted in December 2018.14 In contrast, our Supreme Court has
admonished:

All must understand that we live under a constitutional government. There
is no absolute freedom of action in any branch of it. The limitations upon
the legislative branch are numerous and of the highest importance. The
legislature may go through the form of making any kind of a law, but unless
the result stand the test of those wise limitations which wisdom dictated in
our constitution, it must fail, regardless of the consequences. All the
mischiefs that flow from unconstitutional enactments lie at the doors of
those who are charged with the duty to make laws. The bene?ts of the
system which leads to that?and they are supposed to be of inestimable
value?will be in great part lost by any hesitation in condemning a law as
void that is manifestly so, by that branch of the government which is
charged with that duty.

Milwaukee Cty. v. lsenn?ng, 109 Wis. 9 (1901).

Finally, substantial harm to the parties and the public interest by granting
the stay would be undeniable, and can be summed up thus: is there
anything more destructive to Wisconsin?s constitutional democracy than for
courts to abdicate their constitutional responsibilities by knowingly enforcing
unconstitutional and, therefore, non-existent laws?

Dated this 21st day of March, 2019.

BY THE COURT:

  

 

W. Niess

Circuit Judge

cc: Counsel of record

 

1? Thus, the Legislature's hyperbole notwithstanding, no criminal conviction or chapter 980 sex
predator commitment is jeopardized by this Court's temporary injunction. The three acts enjoined
have nothing to do with past criminal convictions or chapter 980 commitments.

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