In its last oral arguments of the 2018-19 term, the Wisconsin Supreme Court heard a case that will decide whether the Legislature constitutionally convened the December 2018 extraordinary session. The issue in League of Women Voters v. Evers is whether extraordinary sessions are “provided by law” as required by Wisconsin Constitution Art. IV § 11.
Counsel for the defendant Legislature Misha Tseytlin argued that the Legislature did not violate the Wisconsin Constitution by meeting in December. Citing State ex rel. Sullivan v. Damman (1936) and State ex rel. Thompson v. Gibson (1964), the Legislature said that while each chamber recessed in March 2018 the legislature did not finally dissolve itself and end the biennial session until January 2019. The biennial session continued after March 2018 as a committee period, and in December 2018 the Legislature converted the committee period to a floor period pursuant to 2017 Senate Joint Resolution 1. Wis. Stat. § 13.02(3) authorizes the legislature to develop a work schedule such as SJR 1.
Justice Kelly seemed to agree with the Legislature’s argument, emphasizing the logic that Wis. Const. Art. IV § 11 requires the Legislature to meet “as provided by law” and that law is Wis. Stat. § 13.02(3), which then allows the Legislature to create its own work schedule by joint resolution. If the court finds the Legislature met according to SJR 1, the Legislature met constitutionally.
Justices Dallet and Walsh Bradley voiced concerns with the Legislature’s argument, questioning how an “extraordinary session” can be part of a “regular session.” Tseytlin responded that the December 2018 floor period was constitutional whether the Legislature called it an “extraordinary session” or simply a non-prescheduled floor period within the regular session.
The plaintiffs’ arguments began with Justice R. Bradley questioning how the decades-old practice of the Legislature holding extraordinary sessions can just now be found unconstitutional. Counsel for the plaintiff League of Women Voters Jeffery Mandell argued that no Wisconsin law provides for extraordinary sessions. Justice Kelly questioned whether regularly scheduled floor periods would also be unconstitutional since they are not found explicitly in the statutes. Overall, the plaintiffs seek to invalidate the extraordinary session laws because § 13.02 did not “provide by law” for the December 2018 extraordinary session in accordance with Wis. Const. Art. IV § 11.
While it can be difficult to predict how the court will decide based on the line of questioning by the justices, it is likely the court will narrowly rule in favor of the Legislature.
League of Women Voters is the first of several cases challenging the extraordinary session to be heard by the Wisconsin Supreme Court. Read about other extraordinary session litigation here.