Appeal No. 19-AP-559
SUPREME COURT OF WISCONSIN
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, Wisconsin
Plaintiffs-Respondents,
v.
TONY EVERS, in his official capacity
as Governor of the State of Wisconsin
Defendant-Respondent,
and
THE WISCONSIN LEGISLATURE,
Intervening Defendant-Appellant.
On Appeal from the Circuit Court for Dane County
The Honorable Richard G. Niess, Presiding
Circuit Court Case No. 19-CV-84
BRIEF OF PLAINTIFFS-RESPONDENTS
(Counsel listed on inside cover)

 Jeffrey A. Mandell (State Bar No. 1100406)
Kurt M. Simatic (State Bar No. 1083460)
STAFFORD ROSENBAUM LLP
222 West Washington Avenue, Suite 900
Post Office Box 1784
Madison, Wisconsin 53701-1784
jmandell@staffordlaw.com
ksimatic@staffordlaw.com
608.256.0226
Deana K. El-Mallawany*
Ben Berwick*
THE PROTECT DEMOCRACY PROJECT, INC.
125 Walnut Street, Suite 202
Watertown, MA 02472
deana.elmallawany@protectdemocracy.org
ben.berwick@protectdemocracy.org
202.579.4582
Lawrence S. Robbins*
Carolyn Forstein*
Wendy Liu*
ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER LLP
2000 K Street NW, 4th Floor
Washington, DC 20006
lrobbins@robbinsrussell.com
cforstein@robbinsrussell.com
wliu@robbinsrussell.com
202.775.4500
Attorneys for Plaintiffs-Respondents
* Admitted pro hac vice

 TABLE OF CONTENTS
Page
CONSTITUTIONAL AND STATUTORY
PROVISIONS IMPLICATED............................................. xii
COUNTER-STATEMENT OF ISSUES FOR REVIEW ....... 1
INTRODUCTION ................................................................ 2
COUNTER-STATEMENT OF THE CASE .......................... 4
A. Legal Background ...................................................... 4
B. December 2018 Extraordinary Session ....................... 5
C. Procedural History ...................................................... 7
STANDARD OF REVIEW ................................................... 9
A. This Court Applies The Constitution’s
Plain Text....................................................................... 10
B. This Court Interprets Statutes By Focusing
On Text. ......................................................................... 11
C. This Court Looks For Reasons To Affirm
Discretionary Acts. ................................................... 13
ARGUMENT ...................................................................... 14
I. THE LEGISLATURE VIOLATED ARTICLE IV,
SECTION 11 OF THE CONSTITUTION IN
CONVENING THE EXTRAORDINARY SESSION. .... 14
A. Article IV, Section 11 Authorizes the Legislature
to “Meet” Only at a “Time … Provided by Law.” .... 14
1. The plain text of Article IV, Section 11
limits the Legislature’s power to convene. ............ 15

i

 2. Historical sources buttress the plain-text
interpretation. ........................................................... 17
B. The December 2018 Extraordinary Session Was
Not Convened at a “Time … Provided by Law.” ...... 21
1. By its plain text, Wis. Stat. § 13.02 text did
not “provide by law” for the December 2018
Extraordinary Session. ............................................ 22
2. Statutory and legislative history confirm
Wis. Stat. § 13.02’s plain meaning. ....................... 25
3. The Legislature’s arguments depart from the
statutory text. ........................................................... 29
a.

The Legislature invokes a “biennial
session,” contradicting the statute. ................ 29

b. The Legislature improperly conflates
distinct statutory terms. ................................ 30
c.

The Legislature invents terminology
from whole cloth. ......................................... 33

d. Neither the Constitution nor
Wis. Stat. § 13.02 requires sine die
adjournment. ................................................ 36
4. The Legislature’s interpretation of
Wis. Stat. § 13.02 is irreconcilable
with past practice. .................................................... 37
a.

The December 2018 Extraordinary Session
was not part of the regular session because
extraordinary sessions differ in kind. ............ 38

b. The Legislature has never considered
extraordinary sessions to be part of the
regular session—until this case. .................... 40

ii

 5. The Legislature’s interpretation of Wis. Stat.
§ 13.02 leads to absurd consequences.................... 43
C. Existence of Prior Extraordinary Sessions
Does Not Foreclose LWV’s Argument. .................... 47
D. This Court Has Both the Power and the
Responsibility To Review the Legislature’s
Compliance with the Constitution. ............................ 51
II. NO QUORUM OF THE LEGISLATURE
CALLED THE DECEMBER 2018
EXTRAORDINARY SESSION. ................................... 56
III. THIS COURT SHOULD AFFIRM THE
TEMPORARY INJUNCTION, BECAUSE THE
CIRCUIT COURT DID NOT ERRONEOUSLY
EXERCISE ITS DISCRETION. .................................... 58
A. The Harms Alleged Here Merit Injunctive Relief. .... 59
B. The Legislature’s Overblown Fears Are Not
an Argument for Vacating the Injunction. ................. 61
CONCLUSION ................................................................... 63

iii

 TABLE OF AUTHORITIES
Page
Cases
Appling v. Walker,
2014 WI 96, 358 Wis. 2d 132, 853 N.W.2d 888 ........ 10, 35
Armes v. Kenosha Cty.,
81 Wis. 2d 309, 260 N.W.2d 515 (1977) ......................... 12
Bd. of Trs. of Lawrence Univ. v. Outagamie Cty.,
150 Wis. 244, 136 N.W. 619 (1912) ................................ 51
Bilski v. Kappos,
561 U.S. 593 (2010) ........................................................ 46
City of Appleton v. Town of Menasha,
142 Wis. 2d 870, 419 N.W.2d 249 (1988)........................ 60
City of Brookfield v. Milw. Metro. Sewerage Dist.,
144 Wis. 2d 896, 426 N.W.2d 591 (1988)........................ 10
Columbia Cty. v. Bd. of Trs. of Wis. Ret. Fund.,
17 Wis. 2d 310, 116 N.W.2d 142 (1962) ......................... 60
Coulee Catholic Schs. v. LIRC,
2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868 ........ 10, 17
Cty. of Dane v. LIRC,
2009 WI 9, 315 Wis. 2d 293, 759 N.W.2d 571 ................ 11
Dairyland Greyhound Park, Inc. v. Doyle,
2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408 .......... 10, 15
Davis v. Grover,
166 Wis. 2d 501, 480 N.W.2d 460 (1992).................... 9, 10
Estate of Miller v. Storey,
2017 WI 99, 378 Wis. 2d 358, 903 N.W.2d 759 .............. 30

iv

 Foster v. City of Kenosha,
12 Wis. 616 (1860) .......................................................... 35
Harrington v. Smith,
28 Wis. 43 (1871) ............................................................ 49
INS v. Chadha,
462 U.S. 919 (1983) .................................................. 49, 50
Johnson v. City of Edgerton,
207 Wis. 2d 343, 558 N.W.2d 653 (Ct. App. 1996) ... 12, 33
Joint Sch. Dist. No. 1, Wis. Rapids v.
Wis. Rapids Educ. Ass’n,
70 Wis. 2d 292, 234 N.W.2d 289 (1975) ......................... 13
Kieninger v. Crown Equip. Corp.,
2019 WI 27, 386 Wis. 2d 1, 924 N.W.2d 172 .................. 11
Kolupar v. Wilde Pontiac Cadillac, Inc.,
2007 WI 98, 303 Wis. 2d 258, 735 N.W.2d 93 ................ 46
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803)..................................... 53, 54
Mayo v. Wis. Injured Patients & Families
Comp. Fund,
2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678 ...... 53, 54, 55
McDonald v. State,
80 Wis. 407, 50 N.W. 185 (1891) ................................ 9, 53
Miller v. Hanover Ins. Co.,
2010 WI 75, 326 Wis. 2d 640, 785 N.W.2d 493 ........ 13, 58
Milw. Cty. v. Isenring,
109 Wis. 9, 85 N.W. 131 (1901) ................................ 39, 61
Milw. Dist. Council 48 v. Milw. Cty.,
2019 WI 24, 385 Wis. 2d. 748, 924 N.W.2d 153 ...... passim

v

 Milw. Journal Sentinel v. Wis. Dep’t of Admin.,
2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700 .............. 55
Mireles v. LIRC,
2000 WI 96, 237 Wis. 2d 69, 613 N.W.2d 875 ................ 34
NLRB v. Noel Canning,
573 U.S. 513 (2014) ............................................ 35, 47, 51
People ex rel. Hastings v. Hofstadter,
180 N.E. 106 (N.Y. 1932) ................................................ 43
Pure Milk Prods. Coop. v. Nat’l Farmers Org.,
64 Wis. 2d 241, 219 N.W.2d 564 (1974) ......................... 35
Sands v. Whitnall Sch. Dist.,
2008 WI 89, 312 Wis. 2d 1, 754 N.W.2d 439 ............ 14, 58
Sorenson v. Batchelder,
2016 WI 34, 368 Wis. 2d 140, 885 N.W.2d 362 ........ 12, 25
Spiegelberg v. State,
2006 WI 75, 291 Wis. 2d 601, 717 N.W.2d 641 .............. 11
State ex rel. Bare v. Schinz,
194 Wis. 397, 216 N.W. 509 (1927) .................... 10, 11, 15
State ex rel. Buswell v. Tomah Area Sch. Dist.,
2007 WI 71, 301 Wis. 2d 178, 732 N.W.2d 804 ........ 62, 63
State ex rel. Elfers v. Olson,
26 Wis. 2d 422, 132 N.W.2d 526 (1965) ......................... 53
State ex rel. Gen. Motors Corp., AC Elecs. Div.
v. City of Oak Creek,
49 Wis. 2d 299, 182 N.W.2d 481 (1971) ......................... 39
State ex rel. James v. Aronson,
314 P.2d 849 (Mont. 1957) .............................................. 43

vi

 State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 ....... passim
State ex rel. LaFollette v. Kohler,
200 Wis. 518, 228 N.W. 895 (1930) .................................. 2
State ex rel. LaFollette v. Stitt,
114 Wis. 2d 358, 338 N.W.2d 684 (1983).............. 9, 52, 60
State ex rel. Milw. Med. Coll. v. Chittenden,
127 Wis. 468, 107 N.W. 500 (1906) ................................ 58
State ex rel. Mueller v. Thompson,
149 Wis. 488, 137 N.W. 20 (1912) .................................. 54
State ex rel. Ozanne v. Fitzgerald,
2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436 .......... 52, 56
State ex rel. Robinson v. Fluent,
191 P.2d 241 (Wash. 1948).............................................. 43
State ex rel. Sullivan v. Dammann,
221 Wis. 551, 267 N.W. 433 (1936) ................................ 36
State ex rel. Thompson v. Gibson,
22 Wis. 2d 275, 125 N.W.2d 636 (1964) ................... 25, 37
State v. Matasek,
2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811 .............. 26
Sukala v. Heritage Mut. Ins. Co.,
2005 WI 83, 282 Wis. 2d 46, 698 N.W.2d 610 .......... 13, 58
Tetra Tech EC, Inc. v. Wis. Dep't of Rev.,
2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21 .......... 49, 50
United States v. Ballin,
144 U.S. 1 (1892) ............................................................ 56
Wagner v. Milw. Cty. Election Comm’n,
2003 WI 103, 263 Wis. 2d 709, 666 N.W.2d 816 ...... 11, 17

vii

 Wenke v. Gehl Co.,
2004 WI 103, 274 Wis. 2d 220, 682 N.W.2d 405 ............ 63
Werner v. A.L. Grootemaat & Sons, Inc.,
80 Wis. 2d 513, 259 N.W.2d 310 (1977) ......................... 59
Willard v. Comstock,
58 Wis. 565, 17 N.W. 401 (1883) .................................... 60
Winebow, Inc. v. Capitol-Husting Co.,
2018 WI 60, 381 Wis. 2d 732, 914 N.W.2d 631 ........ 12, 26
Wis. Prof’l Police Ass’n v. Lightbourn,
2001 WI 59, 243 Wis. 2d 512, 627 N.W.2d 807 .......... 9, 52

Wisconsin Constitution and Statutes
1987 Wisconsin Act 4 ............................................. 22, 40, 41
2017 Wisconsin Act 368 ....................................................... 6
2017 Wisconsin Act 369 ....................................................... 6
2017 Wisconsin Act 370 ....................................................... 7
Wis. Const. art. IV, § 1........................................................ 43
Wis. Const. art. IV, § 7................................................. passim
Wis. Const. art. IV, § 8........................................................ 56
Wis. Const. art. IV, § 11............................................... passim
Wis. Const. art. IV, § 15...................................................... 45
Wis. Const. art. IV, § 17...................................................... 15
Wis. Const. art. V, § 10 ....................................................... 15
Wis. Stat. § 13.02 ......................................................... passim

viii

 Wis. Stat. § 13.123 .............................................................. 45
Wis. Stat. § 13.625 .............................................................. 45
Wis. Stat. § 196.497 ...................................................... 22, 46
Wis. Stat. § 757.13 .............................................................. 45
Wis. Stat. ch. 8, § 1 (1849) .............................................. 4, 21

Wisconsin Legislative Materials
1971 Senate Bill 60 ............................................................. 29
Alan Chartock & Max Berking, Strengthening
the Wisconsin Legislature (Oct. 1968) ....................... 18, 20
Assembly Journal, 103rd Reg. Sess. ............................. passim
Assembly Journal, 1963 Special Sess. ................................. 40
Assembly Journal, Mar. 2018 Extraordinary Sess................ 42
Assembly Journal, Dec. 2018 Extraordinary Sess. ........... 6, 39
Assembly Rule 93 ............................................................... 38
Daniel F. Ritsche, Special and Extraordinary
Sessions of the Wisconsin Legislature,
LRB-IB-14-2 (2014) ................................................. 39, 40
Joint Rule 81 ......................................................................... 6
Letter from H. Rupert Theobald to Sen. Clifford
W. Krueger, Chairman, Jt. Study Comm. On
Scheduling Leg. Sess. (Apr. 30, 1970) ............................. 28

ix

 Paul Mason, Wisconsin Study Report of the
Committee on Legislative Organization
& Procedure (Jan. 1964) ................................................ 19
Rep. Hesselbein, Capitol Update (Apr. 13, 2018)................ 24
Selma Parker, The Time Structure of Legislatures
Today, LRB-IB-68-3 (1968) ...................................... 20, 21
Senate Journal, 103rd Reg. Sess. .................................. passim
Senate Journal, Dec. 2018 Extraordinary Sess. ............ 6, 7, 39
Senate Journal, Mar. 2018 Extraordinary Sess. .................... 42
Senate Rule 93 ................................................................ 6, 38
Subcomm. on Legis. Sess. & Comp. of the Jt. Comm. on
Legis. Org., Rep. on Legis. Reorg. (Sept. 19, 1968) ......... 20
Wisconsin Legislative Reference Bureau,
The Organization of Wisconsin State
Government (1974) .......................................................... 27

Other Authorities
American Dictionary of the English Language
(Noah Webster ed., 1828) ................................................ 16
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ............. 30, 35, 46
Hamilton Consulting Group, LLC, Hamilton Political
Tidbits–2018 Session Wrap Up (Mar. 23, 2018) .............. 24
Joe Forward, Legislative Wrap-Up, 10 Inside Track No. 6
(State Bar of Wis.), Apr. 4, 2018 ..................................... 24

x

 Norman J. Singer & J.D. Shambie Singer, Sutherland
Statutory Construction (7th ed.) ....................................... 43
Robert Luce, Legislative Assemblies (1924) ........................ 17
Robert Meloon, State Voters OK Annual Sessions of
Legislature, Capital Times, Apr. 3, 1968 ......................... 18
The Federalist (Robert Scigliano ed., 2000) ........................ 54
The Movement for Statehood 1845-1846
(Milo M. Quaife ed., 1918) ................................................ 2
Tom Loftus, The Art of Legislative Politics (1994).............. 55
Tom Loftus, Wisconsin Legislature alone controls
‘extraordinary’ sessions, Capital Times, Apr. 26, 2019 ... 55
Views of “K”—No. 2, Madison Express (Mar. 26, 1846)....... 2

xi

 CONSTITUTIONAL AND STATUTORY
PROVISIONS IMPLICATED
Wis. Const. art. IV, § 7:
Each house shall be the judge of elections,
returns and qualifications of its own members;
and a majority of each shall constitute a quorum
to do business, but a smaller number may
adjourn from day to day, and may compel the
attendance of absent members in such manner
and under such penalties as each house may
provide.
Wis. Const. art. IV, § 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
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.
Wis. Stat. § 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 p.m., to take the oath of
office, select officers, and do all other things
necessary to organize itself for the conduct of its
business, but if the first 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

xii

 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-numbered year which
do not receive final action shall carry over to the
regular annual session held in the evennumbered year.

xiii

 COUNTER-STATEMENT OF ISSUES FOR REVIEW1
1. Did the Wisconsin Legislature convene the
December 2018 Extraordinary Session “at such time as shall
be provided by law,” as required by Article IV, Section 11 of
the Wisconsin Constitution?
2. Did convening the December 2018 Extraordinary
Session by majority vote of each house’s organizing committee
violate the quorum requirement in Article IV, Section 7 of the
Wisconsin Constitution?
3. Did the circuit court erroneously exercise its
discretion by granting the temporary injunction?
Answers below: The circuit court held that the
December

2018

Extraordinary

Session

violated

both

constitutional provisions; it accordingly enjoined enforcement
of actions taken during that session. (B-App001-0162) The
court of appeals stayed the circuit court’s temporary injunction
pending review on the merits. (B-App017-025) This Court
granted bypass and took jurisdiction over the appeal.

1

The Legislature’s framing of the issues for review does not identify
the central disputes in this case. (Br. at 1) The Court should analyze the
issues as presented above. It accepted issues 1-2 in granting the Petition
for Bypass, and issue 3 follows the Legislature’s Docketing Statement for
this appeal.
2 “B-App___” refers to pages in the Appendix to Petition for Bypass.
“L-App__” refers to the Appendix filed with the Legislature’s opening
brief.

1

 INTRODUCTION
This case is about fidelity to the Constitution. “In theory
the sovereign political power of the state rests in the people; in
practice, however, it is exercised by” officials, “who must
proceed in the manner indicated by the constitution.” State ex
rel. LaFollette v. Kohler, 200 Wis. 518, 547-48, 228 N.W. 895
(1930). To protect against “the tyranny of legislation,” the
Constitution includes specific constraints on the Legislature.
Views of “K”—No. 2, Madison Express (Mar. 26, 1846),
reprinted in The Movement for Statehood 1845-1846 at 146
(Milo M. Quaife ed., 1918). Under one such constraint, the
Legislature can “meet” of its own accord only at a “time …
provided by law.” Wis. Const., art. IV, § 11.
Rather than heed this clear constraint imposed by the
people, the Legislature has—contrary to the Constitution—
claimed for itself the power to meet whenever it wants. The
Legislature also insists that its internal work schedule grants a
handful of legislators, far short of a quorum in either house,
authority to convene the Legislature in unscheduled

2

 “extraordinary sessions” (an apt and revealing term invented
by the Legislature).
When called to account for the dissonance between its
conduct and the Constitution, the Legislature insists that the
judiciary—a co-equal branch—lacks authority to ensure
adherence to the Constitution’s limits on legislative power.
And it dismisses this lawsuit as privileging “nomenclature”
over “substance.” (Br. at 17) It ignores the fact that its post hoc
rationalization for the December 2018 Extraordinary Session
distorts constitutional and statutory text alike, is rife with
contradictions, and inescapably leads to absurd consequences.
The circuit court saw through the Legislature’s tactics.
The court correctly recognized that the Constitution’s plain
text bars the Legislature from meeting other than at a “time…
“provided by law.” Because no statutory provision authorized
the Legislature to meet in the December 2018 Extraordinary
Session, the court appropriately held that session unlawful.
That determination, and the resulting injunction, should be
affirmed.

3

 COUNTER-STATEMENT OF THE CASE
A. Legal Background
Through the Constitution, the people of Wisconsin
granted their Legislature limited power. Unless convened by
the Governor in special session, the Legislature has authority
to “meet” only at “such time as shall be provided by law.” Wis.
Const. art. IV, § 11. Pursuant to that provision, the first year
after ratification, the Legislature enacted a single statute, since
renumbered Wis. Stat. § 13.02, providing when the “regular
annual session of the legislature shall commence.” See Wis.
Stat. ch. 8, § 1 (1849). No statute grants the Legislature the
broad authority to convene itself in extraordinary session on its
own initiative.
Wis. Stat. § 13.02 is the only law authorizing generalbusiness legislative meetings. As defined by its title and stated
in its text, the statute addresses “Regular sessions.” It begins
with a simple declaration: “The legislature shall meet
annually.” Wis. Stat. § 13.02. It elaborates on that premise in
four subsections:

4

 Subsection (1) directs when the Legislature “shall
convene” to “organize itself for the conduct of its
business.”
Subsection (2) decrees when the “regular session” (also
the title of the statute) “shall commence” “each year
unless otherwise provided under sub. (3).”
Subsection (3) instructs a legislative committee to
“develop,” “[e]arly in each biennial session period,” “a
work schedule … which shall include at least one
meeting in January of each year.”
Subsection (4) provides that “measures introduced in
the regular annual session of the odd-numbered year …
carry over to the regular annual session held in the evennumbered year.”
B. December 2018 Extraordinary Session
The regular session ended in March 2018, and the
Legislature adversely disposed of all remaining proposals. See
Assembly Journal, 103rd Reg. Sess., at 917; Senate Journal,
103rd Reg. Sess., at 881. Accordingly, the next regular-session
meeting of the Legislature would occur in January 2019.
On Friday, November 30, 2018, the Assembly
Committee on Assembly Organization and the Senate
Committee on Senate Organization each voted to convene an
extraordinary session. (B-App036) Because the Organizing
Committees comprise only a few members from their

5

 respective houses, their decisions to convene the Legislature
violated the Constitution’s quorum requirement. Wis. Const.
art. IV, § 7. Their decisions also violated Article IV, Section
11 because there was no law providing for the Legislature to
meet in December 2018. Both Committees acted pursuant to
Joint Rule 81(2)(a), as well as Rule 93 of their houses. See
Assembly Journal, Dec. 2018 Extraordinary Sess., at 968;
Senate Journal, Dec. 2018 Extraordinary Sess., at 964. But, as
the Legislature has conceded, the Legislature’s rules do not
have the force of law. (B-App407 at 60:17-21)
The

Legislature

convened

the

December

2018

Extraordinary Session on December 3 and adjourned it less
than 48 hours later.3 (B-App036-037, 040) The session yielded
four results:
2017 Wisconsin Act 368, adopted by the Legislature as
SB 883, signed by the Governor on December 13, and
published the following day. (B-App037-038, 040)
2017 Wisconsin Act 369, adopted by the Legislature as
SB 884, signed by the Governor on December 13, and
published the following day. (B-App038-040)

3

The Complaint contains a more granular account. (B-App036-040)

6

 2017 Wisconsin Act 370, adopted by the Legislature as
SB 886, signed by the Governor on December 13, and
published the following day. (B-App038, 040)
Confirmation, en masse, of 82 nominees to State
authorities, boards, councils, and commissions by a vote
held December 4. (B-App038-040); Senate Journal,
Dec. 2018 Extraordinary Sess., at 980-83.
C. Procedural History
The League of Women Voters and other Plaintiffs
(collectively “LWV”) maintain that the December 2018
Extraordinary Session was ultra vires and thus its results are
unenforceable. LWV initiated this declaratory judgment suit
on January 10, 2019. (R.1) The Defendants were Governor
Tony Evers and several Wisconsin Elections Commission
officials. LWV filed an amended complaint and a temporary
injunction motion on January 15, 2019. (R.4, 6) On February
22, 2019, the Wisconsin Legislature noticed motions to
intervene and to dismiss the complaint. (R.57, 60) The circuit
court granted the Legislature permissive intervention. (R.75)
The parties briefed both the Legislature’s motion to
dismiss and LWV’s request for a temporary injunction. (B-

7

 App104-311; see also B-App312-347; R.45-53, 63, 84) 4 After
an extensive hearing (B-App348-458), the circuit court issued
its Decision and Order. (B-App001-016) The circuit court
denied the Legislature’s motion to dismiss, because “not only
does the Amended Complaint state a valid claim for relief, but
a successful one.” (B-App004) The court entered a temporary
injunction, because “the Legislature’s failure to comply with
constitutional procedural requirements for legislative action
invalidates the action” and “[t]he rule of law—the very
bedrock of the Wisconsin Constitution—cannot, in any
respect, abide enforcement of laws that do not exist.” (BApp011, 013)5

4

The Election Commission Defendants also filed a motion to dismiss
(R.55), which was resolved by stipulation. (B-App101-102)
5

According to the Legislature, the circuit court “concluded that
Section 13.02 requires that the Legislature meet only in what the
Legislature titles a ‘regular session.’” (Br. at 14) That is inaccurate. The
circuit court concluded that Article IV, Section 11 is “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” and that,
“contrary to its unequivocal constitutional mandate, the Legislature
interprets [Wis. Stat. § 13.02(3)] as permitting the Legislature to meet
other than ‘at such time as […] provided by law.’” (B-App006-008)

8

 On March 27, the court of appeals stayed the circuit
court’s injunction pending appeal on the merits. (B-App024)
This Court granted LWV’s petition for bypass on April 15.
STANDARD OF REVIEW
As the circuit court recognized (B-App011), legislative
failure to comply with constitutional requirements is fatal to
the resulting action. See Wis. Prof’l Police Ass’n v. Lightbourn,
2001 WI 59, ¶66, 243 Wis. 2d 512, 627 N.W.2d 807. This
Court’s authority extends “far enough to determine whether an
act published as a law was actually passed by the respective
houses in accordance with constitutional requirements.” State
ex rel. LaFollette v. Stitt, 114 Wis. 2d 358, 366, 338 N.W.2d
684 (1983) (quoting McDonald v. State, 80 Wis. 407, 412, 50
N.W. 185 (1891)).
Where, as here, the Legislature is alleged to have
violated a constitutionally mandated procedure, “the court will
not indulge in a presumption of constitutionality, for to do so
would make a mockery of the procedural constitutional
requirement.” Davis v. Grover, 166 Wis. 2d 501, 521, 480

9

 N.W.2d 460 (1992) (quoting City of Brookfield v. Milw. Metro.
Sewerage Dist., 144 Wis. 2d 896, 912 n.5, 426 N.W.2d 591
(1988)).
A. This Court Applies The Constitution’s Plain Text.
Constitutional interpretation is a question of law. See,
e.g., Appling v. Walker, 2014 WI 96, ¶17, 358 Wis. 2d 132, 853
N.W.2d 888 (citing Dairyland Greyhound Park, Inc. v. Doyle,
2006 WI 107, ¶16, 295 Wis. 2d 1, 719 N.W.2d 408). “The
authoritative, and usually final, indicator of the meaning of a
[constitutional] provision is the text—the actual words used.”
Coulee Catholic Schs. v. LIRC, 2009 WI 88, ¶57, 320 Wis. 2d
275, 768 N.W.2d 868.
“Constitutions should be construed so as to promote the
objects for which they were framed and adopted. ‘The
constitution means what its framers and the people approving
of it have intended it to mean, and that intent is to be
determined in the light of the circumstances in which they were
placed at the time.’” Dairyland, 2006 WI 107, ¶19 (quoting
State ex rel. Bare v. Schinz, 194 Wis. 397, 404, 216 N.W. 509

10

 (1927)). To ascertain intent, courts consider “the constitutional
debates and the practices in existence at the time of the writing
of the constitution[] and the earliest interpretation of the
provision by the legislature as manifested in the first law
passed following adoption.” Wagner v. Milw. Cty. Election
Comm’n, 2003 WI 103, ¶18, 263 Wis. 2d 709, 666 N.W.2d
816.
B. This Court Interprets Statutes By Focusing On Text.
Like constitutional construction, statutory interpretation
focuses on the text. This Court’s “responsibility is to ascertain
and apply the plain meaning of the statutes as adopted by the
legislature.” Kieninger v. Crown Equip. Corp., 2019 WI 27,
¶14, 386 Wis. 2d 1, 924 N.W.2d 172.
“‘Words that are not defined in a statute are to be given
their ordinary meanings.’” Cty. of Dane v. LIRC, 2009 WI 9,
¶23, 315 Wis. 2d 293, 759 N.W.2d 571 (quoting Spiegelberg
v. State, 2006 WI 75, ¶19, 291 Wis. 2d 601, 717 N.W.2d 641).
“When the legislature uses different terms in a statute—
particularly in the same section—[courts] presume it intended

11

 the terms to have distinct meanings.” Milw. Dist. Council 48 v.
Milw. Cty., 2019 WI 24, ¶29, 385 Wis. 2d. 748, 924 N.W.2d
153 (quoting Johnson v. City of Edgerton, 207 Wis. 2d 343,
351, 558 N.W.2d 653 (Ct. App. 1996)); accord Armes v.
Kenosha Cty., 81 Wis. 2d 309, 318, 260 N.W.2d 515 (1977).
“Context and structure are also important to meaning.
‘Therefore, statutory language is interpreted in the context in
which it is used; not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
results.’” Milw. Dist. Council 48, 2019 WI 24, ¶11 (quoting
State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶46,
271 Wis. 2d 633, 681 N.W.2d 110). Additionally, “statutory
history” can “aid in [the Court’s] plain meaning analysis,”
Sorenson v. Batchelder, 2016 WI 34, ¶29, 368 Wis. 2d 140,
885 N.W.2d 362, and “legislative history is sometimes
consulted to confirm or verify a plain-meaning interpretation,”
Winebow, Inc. v. Capitol-Husting Co., 2018 WI 60, ¶32 n.9,

12

 381 Wis. 2d 732, 914 N.W.2d 631 (quoting Kalal, 2004 WI 58,
¶51).
In interpreting a statute, this Court does not “consider
the practical, political, or policy implications of the law, nor …
the extrinsic ramifications of [its] construction.” Milw. Dist.
Council 48, 2019 WI 24, ¶18.
C. This Court Looks
Discretionary Acts.

For

Reasons

To

Affirm

Issuing a temporary injunction is a discretionary act.
Joint Sch. Dist. No. 1, Wis. Rapids v. Wis. Rapids Educ. Ass’n,
70 Wis. 2d 292, 308, 234 N.W.2d 289 (1975). Appellate
review is limited to ensuring the circuit court did not
erroneously exercise its discretion. Id.
This Court “look[s] for reasons to sustain a circuit
court’s discretionary determination.” Miller v. Hanover Ins.
Co., 2010 WI 75, ¶30, 326 Wis. 2d 640, 785 N.W.2d 493
(citing Sukala v. Heritage Mut. Ins. Co., 2005 WI 83, ¶8, 282
Wis. 2d 46, 698 N.W.2d 610). If the circuit court “examined
the relevant facts, applied a proper standard of law, and using
a demonstrative rational process, reached a conclusion that a

13

 reasonable judge could reach,” this Court will affirm. Sands v.
Whitnall Sch. Dist., 2008 WI 89, ¶13, 312 Wis. 2d 1, 754
N.W.2d 439.
ARGUMENT
The

Legislature

convened

the

December

2018

Extraordinary Session unlawfully. The Constitution allows the
Legislature to “meet” only at a “time … provided by law.” Wis.
Const. art. IV, § 11. The December 2018 Extraordinary
Session was not a regular session meeting “provided” by Wis.
Stat. § 13.02, and no other “law” authorized the session. In
laboring to evade this inevitable conclusion, the Legislature
ignores constitutional text, distorts statutory language, and
relies on purported authorities that have no legal force.
I.

THE LEGISLATURE VIOLATED ARTICLE IV,
SECTION 11 OF THE CONSTITUTION IN
CONVENING THE EXTRAORDINARY SESSION.
A.

Article IV, Section 11 Authorizes the
Legislature to “Meet” Only at a “Time …
Provided by Law.”

The Constitution unambiguously requires express
statutory authorization for the Legislature to meet.

14

 1. The plain text of Article IV, Section 11 limits
the Legislature’s power to convene.
The Constitution’s text is clear. The relevant portion of
Article IV, Section 11 authorizes the Legislature to “meet at
the seat of government at such time as shall be provided by
law.” Wis. Const. art. IV, § 11. There is no ambiguity.
All parties agree that “provided by law” invokes
statutes—that is, laws enacted and approved with all of the
mandated solemnities. See Wis. Const. art. IV, § 17(2); art. V,
§ 10. Neither the Legislature’s work schedule nor its rules,
both adopted by resolution, meet that constitutional standard.
(B-App123-124) The Legislature conceded this point below.
(B-App407 at 60:17-21)
It is worth dwelling briefly on the meaning of “meet.”
Quoting a recent dictionary, the Legislature defines it as “to
come face to face; or into the company of.” (Br. at 19) Because
the “constitution means what its framers and the people
approving of it have intended it to mean,” Dairyland, 2006 WI
107, ¶19 (quoting Bare, 194 Wis. at 404), the best source is a
dictionary familiar to those framers. As demonstrated by the

15

 example it includes, the most fitting such definition is: “To
assemble; to congregate. The council met at 10 o’clock. The
legislature will meet on the first Wednesday in the month.” 2
American Dictionary of the English Language, at 17 (Noah
Webster ed., 1828).
The Legislature departs from this definition (and from
its proffered definition, as well) by leaping to the atextual
conclusion that “once the Legislature ‘meets’ … that
constitutional meeting does not end until final adjournment.”
(Br. at 19) On the Legislature’s telling, Article IV, Section 11
is satisfied when the Legislature first assembles or
congregates, and the Legislature continues meeting even when
its members are no longer face-to-face because they have
dispersed, returned to their districts, or are handling other
business.
The Legislature’s forced, unnatural interpretation defies
the plain meaning. Because the constitutional text is clear, “the
actual words used” by the framers are “authoritative”

16

 determinants of Section 11’s “meaning.” Coulee Catholic
Schs., 2009 WI 88, ¶57.
2. Historical sources buttress the plain-text
interpretation.
Constitutional

history

and

contemporaneous

interpretation—both at the time of statehood and immediately
around the most recent amendment to Article IV, Section 11—
confirm the plain meaning. Wagner, 2003 WI 103, ¶18.
Statehood-era sources overwhelmingly evince the
framers’ antipathy to legislative excess and “widespread
distrust of state legislative power.” (B-App320 (citing Robert
Luce, Legislative Assemblies 123 (1924)); see also B-App126130, 250-252) As the Legislature acknowledged in the circuit
court, “the concern was generally with too much legislating,
the legislature being in [session] too often, … because it was
[a] pretty skeptical time of what the legislature would do.” (BApp388:1-5) The people further constrained legislative power
in 1881, amending Article IV, Section 11 to halve the
frequency of legislative meetings and to increase gubernatorial
control over special sessions. (B-App321)

17

 The people again amended Article IV, Section 11 in
1968. This amendment excised seven words—“once in two
years, and no oftener”—from the Constitution and added none.
(B-App321) In so doing, it removed the constitutional
prohibition that had, since 1881, barred the Legislature from
holding annual sessions. But it did not, as the Legislature
claims, “provide for a full time, year-round Legislature.” (Br.
at 4)6
At “issue in [the 1968 constitutional amendment]
referendum was the question of annual or biennial sessions.”
Alan Chartock & Max Berking, Strengthening the Wisconsin
Legislature at II-4 (Oct. 1968). The 1968 amendment was
neither proposed nor understood to create a continuous

6

The Legislature misrepresents its source. The cited article describes
the amendment as “knocking out the constitutional ban against annual
sessions of the Legislature.” Robert Meloon, State Voters OK Annual
Sessions of Legislature, Capital Times, Apr. 3, 1968, at 4 (L-App33). The
amendment did not provide for continuous year-round meetings. The
article simply speculated that there would be “demand for an annual state
budget,” in which case “[t]he first six months of every year will probably
be taken up with fiscal matters, meaning that the Legislature will work
year-round with only a summer recess.” Id. (emphasis added). This was
an errant prediction of future conduct, not a description of the
amendment’s legal effect.

18

 legislative session in contravention of the clear constitutional
text and 120 years of settled practice. The intention and effect
were the opposite, moving from one biennial session to two
annual sessions per biennium.
The 1968 amendment followed significant investigation
and study of the legislative process, especially the length of
legislative sessions. In 1964, the Legislature’s Committee on
Legislative Organization and Procedure, working with national
legislative consultant Paul Mason, observed that “[t]he one
thing which needs perhaps the most urgent consideration and
the one instance where the state of Wisconsin does not compare
favorably with other states is the length of the legislative
sessions.” Paul Mason, Wisconsin Study Report of the
Committee on Legislative Organization & Procedure 6-1 (Jan.
1964). The Committee recommended several steps “to reduce
the sessions to a reasonable length.” Id. at 30-4.
In 1968, the Legislature received Strengthening the
Wisconsin Legislature, the result of a multi-year investigation
by the Eagleton Institute of Politics at Rutgers University,

19

 conducted in conjunction with the legislative leadership and
several

legislative

committees.

The

Eagleton

Study

“recognize[d] the need for a better allocation of the
legislature’s time and for a better organization of the legislative
session.” Chartock & Berking, supra, at II:11-12.
The Eagleton Study’s proposed solution was the very
opposite of continuous sessions: “the interim between [annual
sessions] should be maximized” for more extensive and
effective committee work. Id. at II:8; accord Subcomm. on
Legis. Sess. & Comp. of the Jt. Comm. on Legis. Org., Rep. on
Legis. Reorg., § III, ¶¶4, 12 (Sept. 19, 1968). The
constitutional amendment passed only months earlier did not
resolve this on its own, but it could facilitate a statutory
solution. As explained by the Legislative Reference Bureau
(“LRB”), one of the Legislature’s service agencies, the 1968
amendment “allows the Legislature … to determine the length,
frequency and internal organization of future sessions by law.”
Selma Parker, The Time Structure of Legislatures Today, LRBIB-68-3 (1968) at 3 (emphasis added).

20

 Even before the 1968 amendment, the Legislature was
spacing out its meetings by breaking its regular session into
multiple workperiods. Id. at 2 (“Since 1959 every Wisconsin
Legislature has held at least 4 session periods.”). The 1968
amendment brought the Constitution into alignment with that
practice. It left the ball in the Legislature’s court to adopt
statutory authorization for the structure it wanted to use.
B.

The December 2018 Extraordinary Session
Was Not Convened at a “Time … Provided by
Law.”

To effectuate Article IV, Section 11’s command that the
Legislature “meet” only at a “time … provided by law,” the
first Wisconsin Legislature adopted a statute governing
meeting times. Wis. Stat. ch. 8, § 1 (1849). The current version
of that statute authorizes “Regular sessions,” which occur on
an annual basis. Wis. Stat. § 13.02. The absence from section
13.02 of any authorization for an extraordinary session is itself
dispositive of the Legislature’s claim that the December 2018
Extraordinary Session complies with Article IV, Section 11’s

21

 command to “meet” at a “time … provided by law.” Wis.
Const. art. IV, § 11.
1. By its plain text, Wis. Stat. § 13.02 text did
not “provide by law” for the December 2018
Extraordinary Session.
Nowhere does Wis. Stat. § 13.02 mention, much less
authorize the Legislature to convene, an extraordinary session.
Importantly, the Legislature knows how to authorize
extraordinary

sessions.

Current

law

provides

for

an

extraordinary session to approve an agreement for long-term
disposal of radioactive waste. Wis. Stat. § 196.497(10)(c). And
in the late-1980s, Wis. Stat. § 13.02(3m) briefly authorized an
extraordinary budget session between the two regular annual
sessions of the biennial session period. 1987 Wisconsin Act 4,
§ 1 (creating sub. (3m)), §§ 1m, 24(2) (repealing sub. (3m),
effective in 1989).
Under

section

13.02,

the

regular

session

“commence[s]” with a meeting each January. Wis. Stat.

22

 § 13.02(2).7 Once commenced, the regular session is extended
by temporary adjournments to a date-certain. Using such
extensions, the regular session proceeds as a chain, with one
meeting linked to the next. The Legislature forges that chain
each time it recesses or temporarily adjourns. Either the
adjournment identified a date-certain on which the Legislature
will reconvene, see, e.g., Assembly Journal, 103rd Reg. Sess.
at 88; Senate Journal, 103rd Reg. Sess. at 10, or it references
the next floorperiod included in the Legislature’s work
schedule.8 Either way, the adjournment adds the chain’s next
link, extending the regular session.
That chain is broken and the regular session ends when
the Legislature adjourns without forging a new link. See, e.g.,
Assembly Journal, 103rd Reg. Sess., at 908; Senate Journal,
103rd Reg. Sess., at 871. At that point, the only way the
Legislature can convene before the beginning of the next

7

This is the source of legal authority for “the regular session” to
“commence,” even if a work schedule modifies the date/time.
8

Adjournment “pursuant to” the joint resolution containing the work
schedule indicates that the regular session will resume during the next
scheduled floorperiod. See, e.g., Assembly Journal, 103rd Reg. Sess. at 11.

23

 regular annual session is if the Governor calls a special
session.9
The Legislature broke the chain in 2018 when it
adjourned its last scheduled floorperiod without establishing a
date-certain for reconvening or adding another scheduled floor
period to its work schedule. Assembly Journal, 103rd Reg.
Sess. at 909; Senate Journal, 103rd Reg. Sess. at 905. By
adjourning indefinitely—which, as Governor Evers noted
below (B-App175-177), is literally an adjournment sine die
(without day)—the Legislature ended the regular session
“provided by” section 13.02.10

9

As the amici legal scholars explained below, to hold otherwise and
allow the Legislature to convene itself at whim would “usurp [a]
gubernatorial prerogative” and undermine Wisconsin’s “deliberate
constitutional choice to vest the governor—and not legislative actors—
with the power to convene the Legislature outside the ordinary course.”
(B-App319)
10

Legislators and observers alike understood the regular session ended
on March 22. See, e.g., Rep. Hesselbein, Capitol Update (Apr. 13, 2018),
available at http://tiny.cc/5l5y5y (“The Wisconsin State Assembly
wrapped up its floor period for the 2017-18 session on March 22.”);
Hamilton Consulting Group, LLC, Hamilton Political Tidbits–2018
Session Wrap Up (Mar. 23, 2018), available at http://tiny.cc/ji5y5y
(“[T[he legislature will not reconvene until January 2019.”); Joe Forward,
Legislative Wrap-Up, 10 Inside Track No. 6 (State Bar of Wis.), Apr. 4,
2018, available at http://tiny.cc/tg5y5y (“The Wisconsin Legislature
passed a barrage of bills last month to close the 2017-18 session.”).

24

 Removing any doubt, the Legislature also “adversely
disposed of” all “bills and [] resolutions” left pending “at the
end of the last general-business floorperiod, which was
adjourned on March 22, 2018.” Assembly Journal, 103rd Reg.
Sess., at 917; Senate Journal, 103rd Reg. Sess., at 881. This
action, which foreclosed the adoption of further generalbusiness legislation, constitutes a “form of adjournment which
would terminate the session.” State ex rel. Thompson v.
Gibson, 22 Wis. 2d 275, 290, 125 N.W.2d 636 (1964).
When the Legislature convened the December 2018
Extraordinary Session on December 3, more than eight months
had passed since the Legislature adjourned its last scheduled
general-business floorperiod and adversely disposed of all
pending proposals. Once the Legislature broke the regularsession chain, it could no longer meet at a “time … provided
by law” until January 2019.
2. Statutory and legislative history confirm
Wis. Stat. § 13.02’s plain meaning.
This Court uses “statutory history” to “aid in [] plain
meaning analysis,” Sorenson, 2016 WI 34, ¶29, and

25

 “legislative history … to confirm or verify a plain-meaning
interpretation,” Winebow, Inc., 2018 WI 60, ¶32 n.9 (quoting
Kalal, 2004 WI 58, ¶51). Here, both underscore that the text of
Wis. Stat. § 13.02 contains no authority for the Dec. 2018
Extraordinary Session.
Section 13.02 was revised in 1971 to “implement[] the
1968 amendment to Article IV, Section 11.” (Br. at 6) The
revision added a simple introductory statement to the statute:
“The legislature shall meet annually.” Wis. Stat. § 13.02.
Though the 1971 revision is central to the Legislature’s
argument, that same enactment puts a stake through the
Legislature’s case.
There is no way to reconcile the argument that “the
Legislature understood the 1968 [constitutional] Amendment
to permit … a single, continuous biennial session” (Br. at 21)
with this express statutory mandate that the Legislature shall
meet in separate annual sessions. The only way to square this
circle is to read words out of the statute, which is contrary to
the canons of statutory construction. See, e.g., State v. Matasek,

26

 2014 WI 27, ¶¶17-18, 353 Wis. 2d 601, 846 N.W.2d 811. The
appearance of “annual” in section 13.02 defenestrates the
Legislature’s theory.
The Legislature’s insistence on ignoring the word
“annual” is also inconsistent with LRB’s contemporaneous
understanding of the statutory revision:
Beginning with the 1971 legislature, however,
annual sessions were formally inaugurated by
law, which specified that the regular sessions are
to begin in January of each year. Thus, in
response to the constitutional amendment
adopted in 1968, the 1971 legislature became the
first to [adopt] an annual sessions pattern.
Wisconsin Legislative Reference Bureau, The Organization of
Wisconsin State Government, 4-5 (1974) (emphases added).
LRB’s contemporaneous summary of the 1971 revision
bolsters LWV’s plain-text reading and further buries the
Legislature’s contrary interpretation.
Legislative history similarly confirms the plain text.
The 1971 revisions to Wis. Stat. § 13.02 were preceded by
extensive study and consideration. In the wake of 1964 Mason
Report and the 1968 Eagleton Study, in 1970 the Joint

27

 Committee on Legislative Operations convened a Joint Study
Committee on Scheduling Legislative Sessions.
The Joint Study Committee considered a variety of
possible modifications. Two are particularly relevant.
First, the Joint Committee reviewed a proposal under
consideration in California to make that state’s legislature “a
continuous body,” with sessions breaking only momentarily
every two years to accommodate changes in membership after
statewide elections. Letter from H. Rupert Theobald to Sen.
Clifford W. Krueger, Chairman, Jt. Study Comm. on
Scheduling Leg. Sess. (Apr. 30, 1970) at 2, 40. The Joint
Committee did not recommend that Wisconsin pursue such a
change.
Second, the Joint Committee considered but rejected the
idea of adding language to Wis. Stat. § 13.02 that would have
authorized

the

Legislature

to

convene

“extraordinary

worksessions” during the interim times between scheduled
floorperiods. See 1969 Assembly Substitute Amend. 2 to AB
1015 at 1:18-2:4. Notably, even that language would not have

28

 authorized what occurred last December—namely, an
extraordinary session months after the last scheduled
floorperiod and the end of the regular session.
3. The Legislature’s arguments depart from
the statutory text.
The Legislature’s efforts to find authority in Wis. Stat.
§ 13.02 for the December 2018 Extraordinary Session fail.
a. The Legislature invokes a “biennial
session,” contradicting the statute.
The Legislature’s brief references a “biennial session”
more than a dozen times. But Wisconsin has not had a biennial
legislative session for nearly 50 years. Since 1971, the law has
mandated that “[t]he legislature shall meet annually.” Wis.
Stat. § 13.02. For this reason, the Legislature’s description of
“a single, continuous biennial session,” with “adjournment
occurring only immediately before the next biennial session
begins” (Br. at 4, 21) is fictitious.11 The Legislature’s
derivative description of “a single, continuous biennial
11

LRB’s analysis of the revisions to Wis. Stat. § 13.02 made this clear.
Like the amended statute, the analysis begins with a simple, declarative
sentence: “This bill directs the legislature to meet in annual sessions.”
1971 Senate Bill 60 at 1:5.

29

 session,” broken up according to a work schedule adopted by
joint resolution (Br. at 32) is similarly errant.
Subsection (3) of section 13.02 reinforces that the
Legislature “shall” hold “at least one meeting in January of
each year.” Wis. Stat. § 13.02(3). If, as the Legislature posits,
there is a singular meeting coextensive with the entire biennial
session period, this phrase has no meaning. Such an
interpretation is to be avoided. See, e.g., Estate of Miller v.
Storey, 2017 WI 99, ¶42 & n.19, 378 Wis. 2d 358, 903 N.W.2d
759 (citing Kalal, 2004 WI 58, ¶46); Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts
174-179 (2012). Nor can this phrase be dismissed as a vestige
that predates the current constitutional text, because subsection
(3) “is the legislation implementing the 1968 amendment to
Article IV, Section 1 [sic].” (Br. at 32-33)
b. The Legislature improperly conflates
distinct statutory terms.
Most of the Legislature’s arguments focus on Wis. Stat.
§ 13.02(3). This reliance on subsection (3) is misplaced.

30

 Subsection (3) instructs a legislative committee to
“meet and develop a work schedule” for the regular session,
“to be submitted to the legislature as a joint resolution.” Wis.
Stat. § 13.02(3). It goes no further. Because subsection (3)
authorizes no meetings of the Legislature, it can neither satisfy
Article IV, Section 11’s mandate nor bear the weight the
Legislature’s brief places upon it as the legal basis for
indefinite, ad hoc sessions.
By the Legislature’s logic, as long as the work schedule
identifies

the

biennial

session

period’s

boundaries,

constitutional constraints do not apply to meetings of the
Legislature occurring within those boundaries. (Br. at 29) But,
as the circuit court noted, subsection (3) “does not say this, or
anything close.” (B-App009)
The Legislature asserts that the work schedule serves
“to govern the Legislature’s meeting,” which it portrays as a
single, continuous meeting necessarily coextensive with the
“biennial session period.” (Br. at 30) But that is not what the

31

 statute says.12 This effort to conflate “the legislative session”
with a single, continuous meeting lacks any statutory basis.13
(It is also inconsistent with Section 2 of 2017 SJR1, which
gives notice of the date on which the subsequent Legislature
“will hold its first meeting, pursuant to section 13.02(1).” (LApp128). If the entire biennial session period were one
continuous meeting, the word “first” would be a misnomer.)
Rejecting the Legislature’s conflation of terms unravels
the claim that subsection (3) authorizes a continuous biennial
session. It also vindicates the rule that “when the Legislature
uses different terms”—here biennial session period and the
legislative session—in the same statutory subsection, courts

12

This is not the only liberty the Legislature takes in summarizing
Wis. Stat. § 13.02. Subsection (3) does not “require[] the Legislature to
enact a ‘work schedule.’” (Br. at 30) The statute instructs the committee
to propose a schedule, but does not require the Legislature to adopt it. Wis.
Stat. § 13.02(3). The Legislature also imports the term “biennial session”
into subsection (1), though those words do not appear together in section
13.02 (except as part of “biennial session period” in subsection (3)).
13

The conflation also runs afoul of how the terms “meeting” and
“session” are used. Historically, the Legislature convened for one meeting
coextensive with the session, but, following changes in transportation and
commerce, the Legislature wanted to break its work into multiple
meetings, each of which is part of the legislative session. (B-App320-322)
That is what the 1968 amendment provides. See Section I.A.2, supra.

32

 “presume it intended the terms to have distinct meanings.”
Milw. Dist. Council 48, 2019 WI 24, ¶29 (quoting Johnson,
207 Wis. 2d at 351). And it saves the references to regular
annual sessions in both subsections (2) and (4) from being
rendered nonsensical. Id., ¶11 (quoting Kalal, 2004 WI 58,
¶46).
c. The Legislature invents terminology
from whole cloth.
The

Legislature

also

invents

new

terminology

wholesale, without statutory foundation. It does so in service
of its attempt to define “extraordinary session” as “a nonprescheduled floor period.” (Br. at 4, 6, 7, 8, 16, 22, 28, 29, 32,
33, 35, 36) This “is a post hoc fiction” invented “to justify the
authority the Legislature wrongfully assumed to convene and
meet” last December. (B-App009) Neither the Constitution nor
Wis. Stat. § 13.02 mentions floorperiods, much less whether
one was prescheduled. (The idea of a “‘non-prescheduled floor

33

 period’ is the antithesis of a ‘work schedule,’ by both definition
and force of logic.” (B-App009)14)
The Legislature defines floorperiods not in the statute,
but in its work schedules. As the Legislature has conceded,
work schedules, because they are adopted by joint resolutions,
are not “law” but merely convenient tools for internal
calendaring. (B-App407 at 60:17-21) Such conveniences
cannot provide authority for the Legislature to meet.
Even if a work schedule could somehow authorize nonprescheduled meetings, it would not apply to extraordinary
sessions, because the work schedule is created under the
auspices of section 13.02, which authorizes only regular
sessions. The limited scope of section 13.02 is apparent from
the statutory text, which never mentions extraordinary
sessions. It is underscored by the title: “Regular sessions.” Wis.
Stat. § 13.02.15 The absence of any reference to extraordinary
14

The concept, “by its very nature, is not a meeting ‘at such time as
[… provided] by law.’” (B-App009)
15

“The title of a statute cannot defeat the language of the law, but it is
persuasive evidence of a statutory interpretation.” Mireles v. LIRC, 2000
WI 96, ¶60 n.13, 237 Wis. 2d 69, 613 N.W.2d 875 (citing Pure Milk Prods.
Coop. v. Nat’l Farmers Org., 64 Wis. 2d 241, 253, 219 N.W.2d 564

34

 sessions in section 13.02, reinforced by the limited scope
expressed by the statutory title and the text of the surrounding
subsections, rebuts the Legislature’s argument that Wis. Stat.
§ 13.02(3) authorized the December 2018 Extraordinary
Session.
To reach the opposite conclusion—that subsection (3)
sub silentio authorizes delegating to a handful of legislators the
authority to convene the Legislature in extraordinary session at
whim—“would swallow much of Article IV, Section 11
whole” and “demote[] the controlling language in Article IV,
Section 11 to the status of mere surplusage.” (B-App008, 010)
Such a reading cannot be credited. See, e.g., Appling, 2014 WI
96, ¶23; NLRB v. Noel Canning, 573 U.S. 513, 584 (2014)
(Scalia, J., concurring in judgment). The Legislature’s
approach would render the restrictions of Article IV, Section
11 a dead letter. See, e.g., Foster v. City of Kenosha, 12 Wis.
616, 620 (1860) (affirming injunction against enforcement of

(1974)); accord Scalia & Garner, supra, at 221 (“Titles and headings are
permissible indicators of meaning.”).

35

 amendment to city charter that rendered a “provision of the
constitution … a dead letter, entirely inoperative and of no
effect”).
d. Neither the Constitution nor Wis. Stat.
§ 13.02 requires sine die adjournment.
Recognizing that the statutory text does not support its
actions, the Legislature adopts a fallback option. It insists—in
the same paragraph where it purports to apply the ordinary
definition—that “meet” is actually a legislative term of art:
“the Legislature meets in the constitutional sense until it
adjourns sine die.” (Br. at 20 (first emphasis added)) Yet the
Legislature makes no effort to illuminate how “the
constitutional sense” of the word “meet” differs from ordinary
usage. That is because the Legislature is not redefining “meet,”
but instead reading new words that do not appear in Article IV,
Section 11—and “that the people of Wisconsin did not
approve”—into the Constitution. (B-App009)
The Legislature asserts that, once it begins to “meet”
under Article IV, Section 11, its “constitutional meeting does
not end until” it adjourns sine die. (Br. at 20) The Constitution

36

 says no such thing. Nor do the cases the Legislature cites.
Those cases—State ex rel. Thompson v. Gibson, 22 Wis. 2d
275, 290, 125 N.W.2d 636 (1964), and State ex rel. Sullivan v.
Dammann, 221 Wis. 551, 555, 267 N.W. 433 (1936)—
recognize the uncontroversial principle that the Legislature
can, utilizing proper procedure, recess and reconvene. That is,
they are consistent with the description above of the regular
session as a chain. And that means they buttress LWV’s
argument that the December 2018 Extraordinary Session was
unlawful, because the regular session ended months earlier
when the Legislature broke the chain. See Section I.B.1, supra.
4. The Legislature’s interpretation of Wis.
Stat. § 13.02 is irreconcilable with past
practice.
The Legislature encourages this Court to adopt the
fallacy that extraordinary sessions are part and parcel of, not
different in kind from, the regular session. But the
Legislature’s position conflicts with its own practice, even
within the relatively short period since the Legislature claims
to have begun “setting a continuous constitutional meeting of

37

 the Legislature for the entire two-year period while allowing
itself to change a prescheduled committee period into … an
extraordinary session.” (Br. at 7) This inconsistency exposes
the Legislature’s argument as “a post hoc fiction.” (B-App009)
a. The December 2018 Extraordinary
Session was not part of the regular
session because extraordinary sessions
differ in kind.
Extraordinary sessions differ in kind from, and
therefore cannot be defined as components of, regular sessions.
The truth of this is in their name, which includes the adjective
“extraordinary,” defined as “going beyond what is …
regular[.]”16 This is not mere semantics. The Legislature and
its committees treat extraordinary sessions differently, because
such sessions use different procedural rules and have specific,
limited scope. See Assembly Rule 93; Senate Rule 93. The
legislative journals record extraordinary sessions differently
from the regular session. Their titles—printed in large letters at
the top of each page—make this clear. Compare Assembly

16

Merriam-Webster, Extraordinary, https://www.merriam-webster.
com/dictionary/extraordinary.

38

 Journal, 103rd Reg. Sess. at 833 with Assembly Journal, Dec.
2018 Extraordinary Sess. at 893; compare also Senate Journal,
103rd Reg. Sess. at 842 with Senate Journal, Dec. 2018
Extraordinary Session at 978.17
LRB analyses also distinguish extraordinary sessions.
LRB defines an extraordinary session as one “initiated by the
legislature” “to consider one or more specified topics or pieces
of legislation” and notes that it “differ[s] from regular sessions
in [] purposes and procedures.” Daniel F. Ritsche, Special and
Extraordinary Sessions of the Wisconsin Legislature, LRB-IB14-2 at 1 (2014).
LRB compares extraordinary sessions to special
sessions, distinguishing both from regular sessions. See id. The
comparison is illuminating because, under precedential
legislative rulings, “a special session is a ‘new session’ in the

17

This Court has held that the contents of the house’s journals “are
controlling as regards what the legislature does.” Milw. Cty. v. Isenring,
109 Wis. 9, 26, 85 N.W. 131 (1901). Accord, e.g., State ex rel. Gen. Motors
Corp., AC Elecs. Div. v. City of Oak Creek, 49 Wis. 2d 299, 317, 182
N.W.2d 481 (1971) (“[I]t has been clearly established that the journals of
the legislature are proper subjects of judicial notice … for the purpose of
determining whether or not a statute has been validly enacted.”).

39

 sense that it is entirely separate in all its particulars from the
regular session of the same legislature.” Id. at 4 (quoting
Assembly Journal, 1963 Special Sess. at 16). The “chief
difference is that a special session is called by the governor and
an extraordinary session is initiated by the legislature.” Id. at
1. The Legislature’s litigation efforts to disguise the December
2018 Extraordinary Session “as part of” the regular session
(Br. at 26, 34-35) cannot overcome these differences. (See BApp130-132)
b. The Legislature has never considered
extraordinary sessions to be part of the
regular session—until this case.
Within the relatively short time since the Legislature
held its first extraordinary session, it has consistently
demonstrated that it recognizes the difference in kind between
regular and extraordinary sessions.
Consider, for example, 1987 Wisconsin Act 4, which
temporarily created Wis. Stat. § 13.02(3m) to authorize an
extraordinary session between the biennial session period’s
two regular annual sessions. The very fact that the Legislature

40

 enacted a law to authorize an extraordinary session undermines
its current insistence that the 1968 amendment to Article IV,
Section 11 granted it carte blanche “to turn one of its
committee periods into … an extraordinary session” at will.
(Br. at 6) Had the 1968 amendment conferred such authority,
this facet of Act 4 would have been superfluous.
Moreover, Act 4 proves that the Legislature recognized
a gap—during which it was not in session—between the two
regular annual sessions provided by Wis. Stat. § 13.02(2). This
recognition coexists with the 1987 work schedule (L-App052053), even though it, like 2017 SJR 1, “provided that the
Legislature would continue to meet … on each day of th[e]
continuous biennial session.” (Br. at 23) The work schedule
included a “committee work period” that filled that gap. (LApp052-053) Yet, the Legislature provided in Act 4 for an
extraordinary session during that committee work period. This
is doubly revealing. First, it makes clear that the Legislature
recognized the need for a statutory basis (beyond Wis. Stat.
§ 13.02(3)) to convert committee days into extraordinary

41

 sessions. Second, it contradicts the Legislature’s argument that
committee

work

requires—and

therefore

evidences—

continuous legislative sessions (Br. at 23).
A more recent example highlighting this contradiction
occurred during the 2018 regular annual session. On March 22,
2018, both houses met and adjourned in regular session and
also met and adjourned in extraordinary session. Assembly
Journal, 103rd Reg. Sess. at 908; Assembly Journal, Mar. 2018
Extraordinary Sess. at 893; Senate Journal, 103rd Reg. Sess. at
871; Senate Journal, Mar. 2018 Extraordinary Sess. at 873. If
extraordinary sessions were really nothing more than extra
floorperiods within the regular session, there would be no
reason that business begun in an extraordinary session could
not carry over into a regular-session floorperiod, and viceversa. The care the Legislature takes to keep them separate
repudiates its insistence that this case “is about labels, not
constitutional or even statutory substance.” (Br. at 17)

42

 5. The Legislature’s interpretation of Wis.
Stat. § 13.02 leads to absurd consequences.
The implications of the Legislature’s argument reveal
its wrongheadedness. One implication is inadvertently appears
in the contradictory assertion that, following the Legislature’s
last scheduled floorperiod in 2018, “the houses adjourned …
while the Legislature itself continued to meet.” (Br. at 25) The
Constitution defines the Legislature as comprising the two
houses. Wis. Const. art. IV, § 1. Apart from them, there is no
Legislature to continue meeting.18 Other problems, less
apparent on the face of the Legislature’s brief, also undermine
the Legislature’s position.
The Legislature argues (Br. at 29, 31-32) that, because
its work schedule references the hypothetical possibility of an

18

The Legislature appears to argue that committee meetings held
during a recess or adjournment of the Legislature constitute legislative
meetings under Article IV, Section 11. That argument is baseless. “The
great weight of judicial authority sustains the power of the Legislature to
invest its committees with power to function, though the session is over.”
People ex rel. Hastings v. Hofstadter, 180 N.E. 106, 108 (N.Y. 1932)
(Cardozo, J.); accord, e.g., State ex rel. James v. Aronson, 314 P.2d 849,
858-59 (Mont. 1957); State ex rel. Robinson v. Fluent, 191 P.2d 241, 245
(Wash. 1948); Norman J. Singer & J.D. Shambie Singer, 1 Sutherland
Statutory Construction § 12:17 (7th ed.).

43

 extraordinary session, that obviates the express constitutional
requirement that the Legislature “meet” at a “time … provided
by law.” Wis. Const. art. IV, § 11. But, if the Legislature can
use its nonbinding work schedule to circumvent Article IV,
Section 11, nothing prevents it from using that same vehicle to
evade other constitutional constraints on its power, including
bicameralism and presentment. The implications of the
Legislature’s position would take a meat axe to fundamental
principles of constitutional governance. For this reason, the
circuit court flagged that, “[t]hrough coiled reasoning, the
Legislature essentially adds language and meaning into the
Constitution that the people of Wisconsin did not approve.” (BApp009)
Additionally, accepting the Legislature’s atextual and
counterfactual assertion of a continuous session leads to
several absurd practical and statutory consequences. First, it
would insulate legislators against arrest and “any civil process”
from the moment they join the Legislature until their
retirement, regardless of how many years they may serve. Wis.

44

 Const. art. IV, § 15. It would similarly immunize legislators
from any court proceedings as long as they hold office. See
Wis. Stat. § 757.13.
Second, the Legislature’s insistence that over the past
“more than four decades,” it has “filled every single day” of
each biennium “with legislative business” (Br. at 4) is
inconsistent with the statute on reimbursement of legislators’
expenses. That statute presumes reimbursements will “not
includ[e] any Saturday or Sunday.” Wis. Stat. § 13.123(1)(a)1.
Third, a continuous session would render meaningless a
provision

restricting lobbyists

from making financial

contributions to legislators until “the legislature has concluded
its final floorperiod.” Wis. Stat. § 13.625(1m)(b)1. If the
Legislature meets in continuous session and has authority to
convene non-prescheduled floorperiods at any time, no
lobbyist can ever be certain that the Legislature “has concluded
its final floorperiod.” Id. (emphasis added). It would follow
that there is no time lobbyists can make contributions without
risking legal violation.

45

 This consequence militates against the Legislature’s
argument. Where “the potential for conflict between [multiple]
statutes is present, [courts] read the statutes to avoid such a
conflict if a reasonable construction exists.” Kolupar v. Wilde
Pontiac Cadillac, Inc., 2007 WI 98, ¶28, 303 Wis. 2d 258, 735
N.W.2d 93; accord Bilski v. Kappos, 561 U.S. 593, 607-08
(2010); Scalia & Garner, supra, at 252 (“if possible, [a statute]
should no more be interpreted to clash with the rest of [the
corpus juris] than it should be interpreted to clash with other
provisions of the same law”).19
The restriction on lobbyist contributions was adopted
after the Legislature claims to have begun holding continuous
biennial sessions during which it is in session “every single
day” of the biennium. (Br. at 4). That means the Legislature
purports to have adopted a law limiting contributions that, from
its inception, could not have any meaning or effect. Such a

19

The Legislature argues that LWV’s theory renders surplus
references to extraordinary sessions in this and two other statutes. (Br. at
36-37) That is wrong. These references apply to sessions convened under
Wis. Stat. § 196.497(10)(c) and will also apply to any other extraordinary
session the Legislature may authorize by statute.

46

 conclusion contravenes the Court’s prohibition on absurd
interpretations. Milw. Dist. Council 48, 2019 WI 24, ¶11
(quoting Kalal, 2004 WI 58, ¶46).
C.

Existence of Prior Extraordinary Sessions
Does Not Foreclose LWV’s Argument.

In the face of clear constitutional and statutory text, the
Legislature cites “four decades of previously uncontroversial
legislative practice” (Br. at 2) to insist LWV must be wrong.
This both exaggerates the history of extraordinary sessions and
understates the importance of constitutional constraints on
government power. In any event, “the historical practice of the
political branches is, of course, irrelevant when the
Constitution is clear.” (B-App010 (quoting Noel Canning, 573
U.S. at 584 (Scalia, J., concurring in judgment))
Wisconsin survived more than 130 years—from
statehood until 1980—without the Legislature holding an
extraordinary session. In the relatively short time since the
Legislature jury-rigged its first extraordinary session, the
Legislature has averaged significantly less than one such
session annually. (Br. at 8) Several biennial session periods

47

 have passed, including as recently as 2013-2014, without an
extraordinary session.
Even when extraordinary sessions have been used, the
results are not nearly as voluminous as the Legislature’s brief
suggests. Of the 330 bills and 9 resolutions passed during
extraordinary sessions, 172—more than half of the total—are
accounted for by only two of the 28 extraordinary sessions the
Legislature lists.20 The vast majority of those extraordinary
sessions—19 of them—yielded six or fewer enactments, and
more than one-third (10 sessions) yielded only one or two.
The Legislature insists that it “has adopted some of the
most important laws” through extraordinary sessions. (Br. at 8)
Even if true (and it seems doubtful), this is irrelevant. This
Court does not “consider the practical, political, or policy
implications of the law, nor … the extrinsic ramifications of [a
statute’s] construction,” as part of determining plain meaning.
Milw. Dist. Council 48, 2019 WI 24, ¶18.

20

There is no relevance to Governor Evers giving the 2019 budget
address before an extraordinary session; the Legislature conducted no
legislative business—that is, passed no laws—during that session.

48

 Nor are unconstitutional practices saved by sheer
repetition. As amici legal scholars noted below, “[l]egal
defects, especially ones involving unglamorous matters of state
constitutional structure, often escape notice until a catalyzing
event occurs.” (B-App327) This Court has definitively rejected
the theory that using a practice for years renders it
constitutional. For example, in Tetra Tech EC, Inc. v.
Wisconsin Department of Revenue, 2018 WI 75, 382 Wis. 2d
496, 914 N.W.2d 21, the Court deemed judicial deference to
agency interpretations of law improper. Roots tracing back
nearly 150 years, see id., ¶18 (citing Harrington v. Smith, 28
Wis. 43, 59-70 (1871)), did not protect such deference from
scrutiny and ultimately rejection.
Similarly, the U.S. Supreme Court held the legislative
veto unconstitutional in INS v. Chadha, 462 U.S. 919 (1983).
Congress emphasized that it had passed (and Presidents had
signed) legislative-veto provisions for more than 50 years,
resulting in approximately 300 such federal statutory
provisions. See id. at 944-45. In response, the Court observed

49

 that the judicial “inquiry is sharpened rather than blunted” by
the “frequency” with which the challenged practice was being
used. Id. at 944. Nor was the Court deterred by arguments
about utility: “the fact that a given law or procedure is efficient,
convenient, and useful in facilitating functions of government,
standing alone, will not save it if it is contrary to the
Constitution.” Id. “[E]ven useful ‘political inventions’ are
subject to the demands of the Constitution which defines
powers.” Id. at 945.
Tetra Tech and Chadha are only examples. It is not rare
for the judiciary to consider a new constitutional argument,
even one implicating long-standing provisions. Such cases
sometimes result in displacement of long-held understandings
and practices. As Justice Scalia explained, there is no “adversepossession theory” of constitutional law whereby, because one
political branch has “long claimed the powers in question” and
the other “has not disputed those claims with sufficient vigor,”
the judiciary “should not upset the compromises and working
arrangements that the elected branches of Government

50

 themselves have reached.” Noel Canning, 573 U.S. at 570
(Scalia, J., concurring in judgment) (internal quotation marks
omitted).
Yet the Legislature advocates exactly that adversepossession theory here, urging this Court to reject the plain
meaning of Article IV, Section 11 or rewrite Wis. Stat. § 13.02
because extraordinary sessions have been (sporadically) held
for less than one-fourth of Wisconsin’s history as a state. The
Legislature’s argument cannot be accepted. See, e.g., Bd. of
Trs. of Lawrence Univ. v. Outagamie Cty., 150 Wis. 244, 253,
136 N.W. 619 (1912) (“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.” (internal quotation marks
omitted)).
D.

This Court Has Both the Power and the
Responsibility To Review the Legislature’s
Compliance with the Constitution.

The Legislature argues that “the courts’ jurisdiction is
at an end” once it decides that “the Legislature complied with

51

 Article IV, Section 11 by ‘meet[ing]’ from January 2017 to
January 2019.” (Br. at 26) This is wrong in every sense.
First, as discussed above, the factual predicate is false.
The Legislature was not in continuous biennial session last
December. Nor did it take action to “finally adjourn” in
“January 2019.” (Br. at 1) These are distortions.
Second, the Legislature also gets the law wrong.
Whether the December 2018 Extraordinary Session violated
constitutional requirements—including the requirement that it
occur at a “time … provided by law”—is a proper subject for
judicial review. See Lightbourn, 2001 WI 59, ¶93 (holding that,
where legislative rule misconstrued Constitution, the rule did
not control); see also, e.g., State ex rel. Ozanne v. Fitzgerald,
2011 WI 43, ¶51, 334 Wis. 2d 70, 798 N.W.2d 436 (Prosser,
J., concurring) (quoting Stitt, 114 Wis. 2d at 365) (“[T]he
legislature’s adherence to the rules or statutes prescribing
procedure is a matter entirely within legislative control and
discretion, not subject to judicial review unless the legislative
procedure is mandated by the constitution.” (emphasis

52

 added)); State ex rel. Elfers v. Olson, 26 Wis. 2d 422, 426, 132
N.W.2d 526 (1965) (“The courts have jurisdiction to entertain
an action challenging legislative action where it is clear that the
legislative action involves an alleged violated of a
constitutional requirement.”); McDonald, 80 Wis. at 412
(courts “will take like notice of the contents of the journals of
the two houses of the legislature far enough to determine
whether an act published as a law was actually passed by the
respective

houses

in

accordance

with

constitutional

requirements”).
To hold otherwise would negate the very notion of
judicial review:
The Constitution is either a superior, paramount law,
unchangeable by ordinary 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.

Mayo v. Wis. Injured Patients & Families Comp. Fund, 2018
WI 78, ¶84, 383 Wis. 2d 1, 914 N.W.2d 678 (R.G. Bradley, J.,
concurring) (quoting Marbury v. Madison, 5 U.S. (1 Cranch)

53

 137, 178 (1803)). Constitutional constraints on the other
branches “can be preserved in practice no other way than
through the medium of courts of justice, whose duty it must be
to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of
particular rights or privileges would amount to nothing.” The
Federalist No. 78 at 497 (Alexander Hamilton) (Robert
Scigliano ed., 2000).
That the judiciary’s “particular duty … to hold up the
constitution safely above every act of lawmaking power which
would otherwise violate it” may, as here, be “viewed with
impatience by those called to face constitutional restraints,
cannot have any weight whatever as to whether the duty should
be performed.” State ex rel. Mueller v. Thompson, 149 Wis.
488, 491, 137 N.W. 20 (1912). “Judicial respect for its co-equal
branch, the legislature, cannot amount to surrender of judicial
power or abdication of judicial duty.” Mayo, 2018 WI 78, ¶84
(R.G. Bradley, J., concurring). That is why this Court, while
“conscious of the substantial deference [judges] owe to the

54

 other independent branches of government in the exercise of
their constitutional responsibilities,” is “also conscious of [its]
own responsibility to determine whether the provisions of the
Wisconsin Constitution have been followed.” Milw. Journal
Sentinel v. Wis. Dep’t of Admin., 2009 WI 79, ¶33, 319 Wis.
2d 439, 768 N.W.2d 700. Abdicating this responsibility
“scrambles the constitutional roles of the judiciary and the
legislature, making legislators the judges of their own laws.”21
Mayo, 2018 WI 78, ¶84 (R.G. Bradley, J., concurring)
The Constitution does not authorize extraordinary
sessions. No source of “law” within the meaning of Article IV,
Section 11 authorized the December 2018 Extraordinary
Session. The Rules of Proceedings Clause, Wis. Const. art. IV,
21

A recent commentary illustrates the danger of such scrambling. In
it, former Democratic Assembly Speaker Tom Loftus defends
extraordinary sessions as “a move to bring some parity with the governor.”
Tom Loftus, Wisconsin Legislature alone controls ‘extraordinary’
sessions, Capital Times, Apr. 26, 2019, available at http://tiny.cc/ezpv5y.
It is difficult to reconcile Speaker Loftus’s defense of extraordinary
sessions with his earlier admonitions that “denizens of the legislature, the
mere mortals elected to visit the joint for brief periods, must be handcuffed
by the Constitution,” because “the limits on power, if they are tested and
seem elastic, will be stretched and stretched some more.” Tom Loftus, The
Art of Legislative Politics 62-63 (1994). To protect those limits, “in a
system of divided government,” he has observed, “it is often only the court
that can keep equilibrium.” Id. at 62.

55

 § 8, does not immunize the Legislature’s ultra vires actions
because the Legislature “may not by its rules ignore
constitutional restraints.” United States v. Ballin, 144 U.S. 1, 5
(1892).
The issue here is one of fidelity to the Constitution,
which is squarely within this Court’s jurisdiction. Ozanne
declined to adjudicate complaints that the Legislature failed to
comply with a statutory mandate, 2011 WI 43, ¶13 (per
curiam), but only after determining that the legislative actions
at issue did not violate the Wisconsin Constitution, id., ¶11.
Ozanne (bolstered by more than a century of consistent
precedent) is, therefore, fatal to the Legislature’s insistence
that the judiciary has no role here. This Court’s role is to
protect the Constitution—by engaging in judicial review.
II.

NO QUORUM OF THE LEGISLATURE CALLED
THE DECEMBER 2018 EXTRAORDINARY
SESSION.
In convening the December 2018 Extraordinary

Session, the Legislature also violated the Constitution’s
mandate that a quorum of each house is necessary to conduct

56

 legislative business. Wis. Const. art. IV, § 7. Because neither
Organizing Committee comprises “a majority” of its respective
chamber, convening the December 2018 Extraordinary Session
at the Organizing Committees’ direction violated the
requirement that only “a majority of each [house]” constitutes
the necessary “quorum to do business.” Id. The circuit court
recognized the problem with allowing the December 2018
Extraordinary Session to “be convened by a handful of
legislators on two legislative committees.” (B-App007-008)
The Legislature provides no specific answer to the
quorum objection. It insists that, because under its theory there
was an ongoing continuous biennial session, the decision to
convene the December 2018 Extraordinary Session was not
one “to do business” in the constitutional sense. (Br. at 28-29)
This is incorrect for two reasons. First, the continuous biennial
session does not exist; the regular annual session had already
ended, and the December 2018 Extraordinary Session was
distinct from it. Second, even working within the Legislature’s
framework, the decision to convene the full Legislature for the

57

 purpose of making law triggers the Article IV, Section 7
quorum requirement. Indeed, making law is the essence of
legislative business. See, e.g., State ex rel. Milw. Med. Coll. v.
Chittenden, 127 Wis. 468, 502, 107 N.W. 500 (1906) (“The
constitutional authority vested in the Legislature appertains
wholly to the making of law.”).
III.

THIS COURT SHOULD AFFIRM THE
TEMPORARY INJUNCTION, BECAUSE THE
CIRCUIT COURT DID NOT ERRONEOUSLY
EXERCISE ITS DISCRETION.
The circuit court “examined the relevant facts, applied

a proper standard of law, and using a demonstrative rational
process, reached a conclusion that a reasonable judge could
reach.” Sands, 2008 WI 89, ¶13. That alone means this Court
should affirm, without even “look[ing] for reasons to sustain a
circuit court’s discretionary determination.” Miller, 2010 WI
75, ¶30 (citing Sukala, 2005 WI 83, ¶8).
The Legislature’s complaints boil down to three. First,
that LWV’s theory is wrong on the merits. Second, that the

58

 circuit court erred in weighing the relevant harms. 22 Third, that
the circuit court failed to heed its warnings about the followon effects for laws that are not at issue in this case. All three
complaints are unavailing. The merits are addressed in Section
I above. The harms and the parade-of-horribles are addressed
below.
A.

The Harms Alleged Here Merit Injunctive
Relief.

The Legislature’s argument misapprehends this case.
Nothing about LWV’s suit turns on the substance of the actions
taken at the December 2018 Extraordinary Session. The
fundamental claim is that those actions are tainted by the
Legislature’s failure to obey the Constitution. So, LWV asked
the circuit court for an injunction to address the Legislature’s
departure from constitutionally mandated procedure in
convening the December 2018 Extraordinary Session. See,

22

Under the temporary-injunction standard, there is no balancing of
competing harms. See Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis.
2d 513, 519-20, 259 N.W.2d 310 (1977) (cited by all parties and circuit
court below).

59

 e.g., Stitt, 114 Wis. 2d at 368-69 (legislative actions that violate
the Constitution must be invalidated).
The circuit court focused on the “irreparable harm to a
constitutional

democracy

such

as

ours”

caused

by

“enforcement of laws that do not exist.” (B-App013) This is a
significant harm that itself justifies injunctive relief.
Additionally, LWV (and Governor Evers) detailed extensive
harms arising from the unlawful December 2018 Extraordinary
Session. (B-App133-151, 158-163, 181-183, 254-260; R.4553, 63) It is settled law that the taxpayer harm alone alleged
here “forms good ground for ... an injunction,” Willard v.
Comstock, 58 Wis. 565, 571-72, 17 N.W. 401 (1883), to ensure
the Legislature cannot “with impunity violate the constitutional
limitations of its powers,” City of Appleton v. Town of
Menasha, 142 Wis. 2d 870, 878-79, 419 N.W.2d 249 (1988)
(quoting Columbia Cty. v. Bd. Of Trs. Of Wis. Ret. Fund., 17
Wis. 2d 310, 319, 116 N.W.2d 142 (1962)).

60

 B.

The Legislature’s Overblown Fears Are Not
an Argument for Vacating the Injunction.

The Legislature’s opening merits brief suggests that
“some of the most important laws in this State” are implicated
here. (Br. at 8) While this shows more restraint than prior briefs
(e.g., B-App227 (invoking “chaos” and “rolling disaster”)), it
is equally irrelevant.
As a matter of principle, laws adopted through an
unconstitutional procedure cannot be enforced, “regardless of
the consequences.” Isenring, 109 Wis. at 29. This echoes the
Court’s focus on interpreting constitutional and statutory text,
not “extrinsic ramifications of [the resulting] construction.”
Milw. Dist. Council 48, 2019 WI 24, ¶18. “All the mischiefs
that flow from unconstitutional enactments lie at the doors of
those who are charged with the duty to make laws.” Isenring,
109 Wis. at 29. If the Legislature can excuse unlawful actions
by fearmongering about the consequences of remedying its
noncompliance, it is no longer subject to constitutional
constraints.

61

 As a matter of practicality, the challenge here does not
extend beyond the results of the December 2018 Extraordinary
Session, and the ramifications need not extend any further
either. Many—if not most—laws passed through prior
extraordinary sessions have no vulnerability because they
ratified contracts since lapsed, appropriated funds now spent,
created statutory provisions subsequently ratified, promulgated
legislative districts later redrawn, etc. With respect to those
measures that might still invite attack, courts would have
options to limit the repercussions of a ruling here, including
importing a limitation period and applying laches, estoppel, or
reliance principles.
Further, if this Court is concerned about the ripple
effects of a ruling for LWV here, it can invoke established
precedent to make its ruling nonretroactive. See, e.g., State ex
rel. Buswell v. Tomah Area Sch. Dist., 2007 WI 71, ¶¶46-49 &
n.12, 301 Wis. 2d 178, 732 N.W.2d 804. All three factors this
Court has enunciated are met here:
(1) “the decision [will] establish[] a new principle of
law … by deciding an issue of first impression”;

62

 (2) “retroactive application would not further the
operation of the new rule,” given that prior
extraordinary sessions “have already occurred”; and
(3) “retroactive application could produce substantial
inequitable results” by “jeopardiz[ing] the
legitimacy of past actions.”
Id., ¶¶47-48 (citing Wenke v. Gehl Co., 2004 WI 103, ¶71, 274
Wis. 2d 220, 682 N.W.2d 405).
The nonretroactivity doctrine exists to address concerns
like those the Legislature raises here (their exaggeration
notwithstanding). It ensures that legal mistakes do not persist
indefinitely merely because they have already created a mess
sufficiently large that it may be hard to clean up completely.23
CONCLUSION
For the reasons stated above, this Court should affirm
the circuit court’s order and lift the stay imposed by the court
of appeals.

23

Notably, while the Legislature has hyperventilated in court about
the mess it foresees, it has taken no steps to mitigate the problem, though
it—exclusively—possesses the tools to do so.

63

 Dated: April 30, 2019

Jeffrey AjMb^ (State Bar No. 1100406)

Kurtl^. 5l(i'( atic^tate Bar No. 1083460)
STAFFORD ROSENBAUM LLP

Deana K. El-Mallawany*
Ben Berwick*
THE PROTECT DEMOCRACY

PROJECT,INC.
Lawrence S. Robbins*

Carolyn Forstein*
Wendy Liu*
ROBBINS,RUSSELL,ENGLERT,
ORSECK,UNTEREINER & SAUBER LLP

Attorneysfor Plaintiffs-Respondents
* Admitted pro hac vice
Addresses:
STAFFORD ROSENBAUM LLP

222 West Washington Avenue, Suite 900
Post Office Box 1784

Madison, Wisconsin 53701-1784

Email:jmandell@staffordlaw.com
ksimatic@staffordlaw.com
608.256.0226

 THE PROTECT DEMOCRACY PROJECT,INC.
125 Walnut Street, Suite 202
Watertown, MA 02472

Email:deana.eImaIlawany@protectdemocracy.org

ben.berwick@protectdemocracy.org
202.579.4582

ROBBINS,RUSSELL,ENGLERT,ORSECK,
UNTEREINER & SAUBER LLP

2000 K Street NW,4th Floor
Washington,DC 20006

Email:lrobbins@robbinsrussell.com
cforstein@robbinsrussell.com
wliu@robbinsrussell.com
202.775.4500

 CERTIFICATION

I certify that the foregoing brief conforms to the rules
contained in Wis. Stat. §(Rule) 809.62(4) and §(Rule)
809.19(8)(b) and (c) for a brief produced with a proportional
serif font. The Introduction and the portions of this brief
referred to in Wis. Stat. §(Rule) 809.19(l)(d), (e), and (f)
contain 10,820 words.

Dated: April 30, 2019.

 CERTIFICATE OF COMPLIANCE WITH

WIS. STAT.§(RULE)809.19(12)

I hereby certify that I have submitted an electronic copy of this
brief, which complies with the requirements of Wis. Stat. §(Rule)
809.19(12). I further certify that this electronic copy is identical in
content and format to the printed form ofthe brieffiled as ofthis date.
A copy of this certificate has been served with the paper copies
ofthis brief filed with the court and served on all opposing parties.

andell