Dan O'Donnell

Dan O'Donnell

Common Sense Central is edited by WISN's Dan O'Donnell. Dan provides unique conservative commentary and analysis of stories that the mainstream media...Read More


Dismantling the Laughably Bad Extraordinary Session Ruling

Dane County Circuit Court Judge Richard Niess' ruling granting a temporary injunction blocking Republican legislation passed in extraordinary session late last year is so hilariously wrong in its interpretation of both law and facts that one wonders whether even Niess himself is able to read it with a straight face.

In ruling that the extraordinary session itself was unconstitutional and illegal, Judge Niess raises substantial questions about whether he has ever actually read either the Wisconsin Constitution or the relevant Wisconsin statute he cites. What is abundantly clear is that he willfully ignored the facts of the case so as to reach a predetermined conclusion.

This was, in other words, not a legal ruling; it was a political one designed solely to achieve a desired outcome. How else could a reasonable person interpret Judge Niess just sort of pretending that that the Legislature didn't set the legislative schedule that it did.

Extraordinary sessions such as the one Republicans convened in December are so routine that never before has a plaintiff even tried to challenge their constitutionality. Niess' ruling, though, pretends that they are something wholly novel that exists outside the scope of the Constitution and the law governing legislative sessions.

Article IV, Section 11 of the Wisconsin Constitution holds that "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."

"Except for special sessions convened by the Governor," Niess writes in his opinion, "the Wisconsin Constitution permits the Legislature to meet only at such time as provided by statute."

That statute is 13.02, which provides that "the legislature may meet annually," beginning each "regular session...at 2 p.m. on the first Tuesday after the 8th day of January in each year unless otherwise provided" by the "joint committee on legislative organization." That committee must "early in each biennial session period...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."

Judge Niess' ruling just sort of pretends that such a joint resolution authorizing a December session never occurred and thus the extraordinary session was illegal and unconstitutional.

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

In other words, by the very "joint committee on legislative organization" that Wisconsin Statute 13.02 allows to set schedules.

Niess rather hilariously argues that "the statute nowhere mentions, even indirectly, that a previously unscheduled meeting of the full Legislature in 'extraordinary session' may be convened by a handful of legislators on two legislative committees. Indeed, the term 'extraordinary session is not found in 13.02."

No, it isn't, which means that the timing of an extraordinary session is left to the Senate and Assembly Committees on Organization. Remember, the statute itself expressly provides that "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."

That resolution was indeed passed and expressly provided that the 2017-2019 legislative session would be held from Tuesday, January 3, 2017...to Monday, January 7, 2019." Critically, this resolution provides that "every day of the biennial session period is designated as a day for committee activity and is available to extend a scheduled floor period, convene an extraordinary session, or take senate action on appointments."

This means that every single day between January 3, 2017 and January 7, 2019 was available for a legislative session and that every single day was open for a possible extraordinary session. The joint resolution is expressly authorized by Wisconsin Statute 13.02 and thus expressly authorized by Article IV, Section 11 of the Wisconsin Constitution.

Tellingly, Judge Niess simply ignores this joint resolution.

"Applying [13.02] as written," he ironically asks, "where is the constitutionally-required language that authorized the eight legislators on the Assembly Committee on Assembly Organization and the Senate Committee on Senate Organization to convene a meeting of the full Legislature in the [sic] December 2018?"

It was right in front of him, but he just pretended it didn't exist. The Wisconsin Constitution provides that "the legislature shall meet at the seat of government"--i.e. at the Wisconsin Capitol--"at such time as provided by law." That law, Wisconsin Statute 13.02, allows legislative scheduling committees to set the legislative schedule. The scheduling committees set a schedule that allows for extraordinary sessions on any day between January 3, 2017 and January 7, 2017. Since December 2018 falls between those dates and the extraordinary session occurred at the Capitol, it was perfectly constitutional.

Judge Niess merely chose to pretend that this joint resolution was never passed and, in so doing, he reveals the utter absurdity of his decision and reveals that this willful ignorance seems to be borne more out of a desire for a specific outcome than out of a diligent application of the Constitution and the law to the facts of this case.

His ruling is thus an absolute farce and leaves an appellate court no choice but to overturn it.

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