Shortly before leaving office following his loss to Governor-elect Tony Evers last December, Governor Scott Walker worked with the Republican-led Wisconsin Legislature to pass three laws and confirm 82 nominees to state office in an “Extraordinary Session” (also sometimes referred to as the “lame duck” session). Within weeks, liberal groups filed multiple lawsuits attempting to void these actions as unconstitutional.

In League of Women Voters v. Knudson, the case which resulted in what will almost certainly be a short-lived invalidation of the extraordinary session legislation, the plaintiffs’ argument went like this: Article IV, Section 11 of the Wisconsin Constitution provides that the legislature shall meet “at such time as shall be provided by law, unless convened by the governor in special session.” The Extraordinary Session was convened neither by statute nor at the behest of Walker but instead by vote of the Senate Committee on Senate Organization and the Assembly Committee on Assembly Coordination. Therefore the session was illegal.

The plaintiffs asked that therefore the actions taken during the session be declared void. A Dane County circuit court judge bought this argument, invalidating all three laws and 82 appointments.

As the Biblical proverb goes, “there is nothing new under the sun.” In one sense, the whole episode echoes the events leading up to perhaps the most famous lawsuit in American history, Marbury v. Madison, in which a newly-elected President Thomas Jefferson sought to undo the final actions of departing President John Adams. But in another sense, it does not. Chief Justice John Marshall’s landmark decision in Marbury established the foundations of judicial review and was destined for the history books. Last week’s decision seems headed for the same fate as previous rulings that temporarily invalidated Act 10, Voter ID, Right to Work and other Walker-era reforms.

Unfortunately, the judge got it wrong in three major respects:

The Court Failed to Properly Analyze the Phrase “Provided by Law”

The fundamental question in this lawsuit is whether the lame duck session was held at a time “provided by law.” A joint rule adopted by the legislature in 1977 that provides for calling an extraordinary session in just the way that this one was convened would seem a likely candidate for the “law” supporting the call of the extraordinary session. But on just the second page of its decision, the circuit court summarily begs the question, assuming that “‘[p]rovided by law’ means provided by duly-enacted statute.” The circuit court’s assumption completely failed to deal with the Wisconsin Supreme Court’s recent decision in Parsons v. Associated Banc-Corp holding that a similar phrase in the Wisconsin Constitution, “prescribed by law,” does not always mean prescribed only by statute.  

Invoking the interpretative rule of thumb that where different words are used different meanings are presumed, the Parsons Court noted in part that the Wisconsin Constitution referred elsewhere to items being provided “by statute.” In other words, where the people of Wisconsin wanted to restrict the trigger for a constitutional provision to statute, they can and have used that word. But where the broader word “law” is used, courts should be on the lookout for a potentially more sweeping meaning, whether one including administrative rules, common law, judicial precedent, or – to borrow a phrase from Black’s Law Dictionary – some other part of the “the body of authoritative grounds of judicial and administrative action.”

The rule makes sense. If the Department of Natural Resources adopts a rule governing hunting season, for example, all would characterize that rule as “law” despite the fact that it is not a statute.

Consequently, one might have expected to see in the circuit court’s decision an analysis of whether the word “law” in Article IV, Section 11 encompasses more than statutory law. But no such analysis appears. Had it conducted that analysis, the circuit court, which was bound by the longstanding principle that statutes must be shown to be unconstitutional “beyond a reasonable doubt,” would have been forced to considered the respect that the judiciary ought to show a coordinate branch of government and the weight to be afforded Article IV, section 8 of the Constitution which provides that each house of the legislature may “determine the rules of its own proceedings.” Had it conducted the required analysis, the circuit court might have concluded that the context requires a broader reading of the phrase “provided by law” to include those publicly-available rules the Legislature has formally adopted to govern its own proceedings.

Even If the Wisconsin Constitution Requires the Legislature to Authorize Extraordinary Sessions by Statute, the Legislature Did So

But even if one accepts the circuit court’s ipse dixit, the Extraordinary Session was lawful. As the Legislature itself argued in court, Wis. Stat. § 13.02(3) orders the “the joint committee on legislative organization [to] meet and develop a work schedule for the legislative session.” Pursuant to that statutory command, the joint committee passed a joint resolution, 2017 Enrolled Session Resolution 1, which: (1) “declare[d] that the biennial session period of the 2017 Wisconsin legislature began on Tuesday, January 3, 2017, and that the biennial session period ends at noon on Monday, January 7, 2019”; and (2) explained that “[u]nreserved days” were “available to . . . convene an extraordinary session, or take senate action on appointments as permitted by joint rule 81.”

Translated to English: by statute the legislature authorized itself to set its own schedule, and the legislature then did so, expressly noting that it might convene an extraordinary session during the session period. This means that the legislature complied with the Wisconsin Constitution’s command (as interpreted by the circuit court) that it “meet . . . at such time as shall be provided by [statute].”

But that was not good enough for the circuit court, which apparently concluded, in effect, that § 13.02 needs to schedule all sessions in advance, eliminating the legislature’s ability to have unplanned sessions. How that prohibition came be wrung from a constitutional provision that grants the legislature the authority to decide when it will meet is unclear.

The Circuit Court Should Have Been More Restrained in Ordering a Remedy

The circuit court decision was not a final resolution of the merits of the case, but instead a decision on a motion for a temporary injunction. That is, the plaintiffs asked the court to halt enforcement of the lame duck legislation while the lawsuit proceeded. Courts deciding whether to grant this type of preliminary relief before a case is even over consider more than who they think is likelier to win. The idea is to maintain the status quo and to prevent irreparable harm while the case is decided.

Here, the Dane County circuit court was presented with the following scenario: the legislature and the governor – two branches of government – had passed multiple laws involving topics ranging from taxes to voting, and had appointed over six dozen individuals to office. Which seems the more reasonable solution: resolving the merits of the case before invalidating all those laws and appointments, or invalidating all those laws and appointments before resolving the merits of the case? The circuit court chose the latter, denying the legislature’s request for a stay while it appealed the court’s order.  That decision was not in the public interest. Now Wisconsinites face the prospect of reversing much of what has occurred in state government over the last three months, only to reverse it a second time should the plaintiffs lose the inevitable appeal.

And as the discussion above makes clear, the question of that loss should be framed in terms of “when,” not “if.”

Anthony LoCoco is an associate counsel at the Wisconsin Institute for Law & Liberty.