June 21, 2019
by Matthew Rothschild, Executive Director
No surprise here: The rightwing majority on the Wis. Supreme Court threw out the lame-duck lawsuit by the League of Women Voters and other parties. The decision lets stand the laws that the Republican-dominated legislature passed, and the appointments that Gov. Scott Walker made, during the lame-duck session late last year.
Justice Rebecca Bradley wrote for the majority, claiming that the Legislature had followed the Constitution of the State of Wisconsin and the statutes by calling an extraordinary session. She added that the Court shouldn’t interfere with the internal functioning of a co-equal branch of government.
Writing for the three liberal justices in dissent, Justice Rebecca Dallet argued that the majority blatantly misread the Constitution of the State of Wisconsin. “The plain constitutional text of Article IV, Section 11 makes clear that with the exception of the Governor's ability to call special sessions, the Legislature has authority to ‘meet’ only at ‘such time as shall be provided by law.’ Yet, the majority opinion ignores this clear language and instead concludes that a joint resolution work schedule is ‘law’ that allows for a continuous, perpetual legislative session and the ability to convene at any time without notice.”
Dallet noted a few instances in the past where previous Legislatures actually did pass a law to allow for an extraordinary session, whereas the lame-duck Legislature did not.
She also stressed the reason behind the constitutional language specifying when the Legislature should meet. As she explained, “In 1848, the drafters sought to avoid a continuation of colonial-era abuses involving irregular meetings of the Legislature.” When the citizens don’t know when their own Legislature is meeting, it’s more than an inconvenience. It invites abuse of power. “The drafters accordingly constrained and limited the Legislature's power, including where, when, and how often it could meet,” Dallet noted, adding tartly: “Despite this fear of legislative abuses and the drafters' goal to ensure transparency, the majority opinion now broadens the Legislature's powers.”
Justice Dallet also picked up the argument that the Wisconsin Democracy Campaign made in its amicus brief. She noted that if the Legislature is in perpetual session, that would “render meaningless several other laws which distinguish between days that the Legislature is in session and days when it is not.” In a footnote, she highlighted two examples that the Wisconsin Democracy Campaign’s brief had mentioned.
The first one had to do with when lobbyists may make contributions to legislators. Dallet wrote: “Wis. Stat. § 13.625(1m)(b)1 prohibits lobbyists from making financial contributions to legislators until ‘the legislature has concluded its final floor period.’ Under this statutory section, no lobbyist could ever be certain that the Legislature ‘has concluded its final floor period.’”
The second one had to with per diem allowances that lawmakers may receive. “Wis. Stat.§ 13.123, which sets forth the extent to which legislators are entitled to a per diem allowance for food and lodging, would be meaningless if the Legislature met perpetually,” Dallet wrote. “Under the majority's reasoning, legislators would be entitled to per diem reimbursement every day of every year, which undermines the entire purpose of a per diem reimbursement.”
But adherence to logic and adherence to the clear text of Wisconsin’s Constitution are not obstacles for the rightwing majority on the Wisconsin Supreme Court. They just ignore them, and then rule the way they want to: in favor of their rightwing buddies in power.