[Point of order:]

  Senator Strohl raised the point of order that senate substitute amendment 3 to Senate Bill 355 [relating to broadening the emergency fuel assistance law] was not germane.

  Senator Lorge asked unanimous consent that senate substitute amendment 3 be treated as if it were germane. Senator Bablitch objected.

  The chair [Pres. Risser] ruled the point of order well taken.

  Senate Bill 355 as originally drafted relates to broadening an emergency fuel assistance program and to that only.

  Senate substitute amendment 3 attempts to incorporate all of the provisions of Assembly Bill 777, which relates to alternative energy incentives. The amendment would totally alter the nature of the original purpose and therefore under Senate Rule 50 (1) the amendment is not germane.

  Senator Opitz appealed the ruling of the chair. [Display of roll call vote omitted; ayes-22, noes-10.] So the decision of the Chair shall stand as the judgment of the Senate.

  Point of order:

  Representative Coleman rose to the point of order that assembly amendment 10 to Senate Bill 7 [relating to making permanent the requirement that certain motor vehicle operators and passengers use safety belts] was not germane under Assembly Rule 54 (1).

601   Representative Hauke asked unanimous consent that the assembly stand informal for twenty-five minutes. Granted.

  Ruling of the chair:

  The speaker [Loftus] ruled the point of order not well taken.

[Point of order:]

  [Assembly Bill 409, relating to the effective expiration date of chapter 157, laws of 1973 - temporary emergency energy regulations]

  Senator Chilsen raised the point of order that ss. 157 [chapter 157, laws of 1973] could no longer be amended as the statute had expired.

  The chair [Lt.Gov. Schreiber] ruled the point of order not well taken.

  [Motion cannot suspend constitutional requirement:]

  Representative Johnson rose to the point of order that assembly amendment 14 to Assembly Bill 7, October 1983 Special Session [relating to taxation of milk assessments and refunds of them, garnishment of the proceeds from the sale of agricultural products, use of nondairy products in state and municipal buildings prohibited, distribution of cheese at tourist information centers, foreclosure by advertisement, promotion of Wisconsin products, dissolution of a consent order regarding dairy advertising and granting rule-making authority], was not germane under Assembly Rule 93 (1) [in special session, amendment must fit within call].

602   The speaker [Loftus] ruled the point of order well taken.

  Representative Merkt moved that Assembly Rule 93 be suspended.

  The speaker [Loftus] ruled the motion out of order under Article IV Section 11 of the Wisconsin Constitution.

  Representative Merkt appealed the decision of the chair on the germaneness of assembly amendment 14 to Assembly Bill 7, October 1983 Special Session.

  Representative Merkt asked unanimous consent to withdraw his appeal.

  Granted.

  [Motion cannot suspend state law; effective date of redistricting:]

  Representative T. Thompson moved that the assembly return to using the district numbers in effect at the beginning of the 1983 legislative session.

  Speaker Loftus ruled the motion out of order because 1983 Wisconsin Act 29 [relating to redistricting the senate and assembly based on the 1980 federal census of population and making miscellaneous changes in the statutes pertaining to decennial legislative redistricting] had taken effect.

  Representative T. Thompson moved that the rules be suspended to allow the motion.

  Speaker Loftus ruled the motion out of order.

  Point of order:

  Representative T. Thompson rose to the point of order that Assembly Bill 54 [relating to prohibiting investment of public retirement trust funds in certain investments relating to the Republic of South Africa] was not properly before

  the assembly under section 13.50 (6) (b) of the Wisconsin Statutes because the bill required a report from the Joint Survey Committee on Retirement Systems.

  The speaker [Loftus] ruled the point of order not well taken.

[Point of order:]

  Senator George raised the point of order that pursuant to Joint Rule 41, Senate Bill 31 [relating to obscenity and defining obscene material and obscene performance] must be referred to joint committee on Finance. The chair took the point of order under advisement.

[Point of order:]

  Senator Chilsen raised the point of order that the president of the senate was required by the Senate Rules to deliver his ruling on Senate Bill 31.

  Ruling of the chair:

  Senator from the 6th, Senator George, raised the point of order that referral to the joint committee on finance of Senate Bill 31 was required. The Chair took the point of order under advisement.

  The Senator from the 6th made reference to the fiscal estimates attached to Senate Bill 31 that were prepared in accordance with Joint Rule 41, and the fact that they indicate a negative impact on state funds and therefore require Senate Bill 31 to be referred to the joint committee on finance.

  The Senator from the 6th, the Senator from the 20th, Senator Stitt, and others who were heard on the point of order spoke at length about the case law in reference to this question, in particular, the State ex rel. La Follette v. Stitt (Stitt case) and State ex rel. General Motors Corp v. Oak Creek (Oak Creek case).

  The Chair is aware of a long list of various decisions relating to a similar question as to whether a legislative act may be invalidated by a court for failure of the legislature to follow its rules of procedure of statutory requirements. As far back as 1891 (McDonald v. State, 80 Wis. 407, 411-412) stated that "no inquiry will be permitted to ascertain whether the two houses have or have not complied strictly with their own rules in their procedure on the bill, intermediate its introduction and final passage."

  In 1923, State v. P. Lorillard Co., 181 Wis. 347 (at page 372), the question was:

604   ...whether sec. 13.06, (1921) Stats., which required the legislature to refer appropriation bills to the joint committee on finance before passage, meant that such bills had to be referred by each house before final passage. This court, in rejecting the argument that each house had to refer the proposal, pointed out that there was no constitutional requirement involved and moreover, that the statute as written did not require reference by each house. This court stated: "This is a question of policy for legislative, not judicial, determination."

  Similarly, the Wisconsin Supreme Court ruled in 1968, in Outagamie County v. Smith, 38 Wis.2d 24, 41, that:

  This court will not interfere with the conduct of legislative affairs in the absence of a constitutional mandate to do so or unless either its procedures or end result constitutes a deprivation of constitutionally guaranteed rights. Short of such deprivations which give this court jurisdiction, recourse against legislative errors, nonfeasance or questionable procedure is by political action only.

  In only one case, State ex rel. General Motors Corp. v. Oak Creek, 49 Wis.2d 299, 329 (1971), had the Wisconsin Supreme Court ever implied that a statute might be invalid because the Legislature failed to comply with the mandate of a legislative procedure rule expressed as a statute.

  In the most recent case, State ex rel. La Follette v. Stitt, the court commented directly on the Oak Creek case. Said the court in the Stitt case:

  ...Because this dicta is inconsistent with the uniform holding of prior Wisconsin cases and the general rule which limits a court's authority to invalidate legislation only for constitutional violations, we withdraw this language in the Oak Creek case and expressly disavow any implication that this court will invalidate legislation when it finds the legislature has violated a procedural statutory provision in passing an act.

  Further the court stated:

  ...this court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments .... we will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns....

  Courts are reluctant to inquire whether the legislature has complied with legislatively prescribed formalities in enacting a statute. This reluctance stems from separation of power and comity concepts, plus the need for finality and certainty regarding the status of a statute [citing Baker v. Carr, 369 U.S. 186, 215 (1962)].... If the legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid. The rationale is that failure to follow such procedural rules amounts to an implied ad hoc repeal of such rules.

  The Stitt case also quoted Sutherland's Statutory Construction, volume 1 (94th ed.) sec. 7.04 at page 264:

  The decisions are nearly unanimous in holding that an act cannot be declared invalid for failure of the house to observe its own rules. Courts will not inquire whether such rules have been observed in the passage of the act. Likewise, the legislature by statute or joint resolution cannot bind or restrict itself or its successors as to the procedure to be followed in the passage of legislation.

  The Attorney General in 63 OAG 305 (1974) stated:

  "A bill .... would probably result in a valid law even if the procedures specified in (the statutes) are disregarded by the legislature. When an act is passed by both houses, in accordance with constitutional requirements, the courts will not inquire into whether statutory legislative procedures were followed."

605   Although the case history indicates that the courts will not intervene to declare legislation invalid for failure of the legislature to follow its rules or procedures, that is not reason for this Senate to disregard its own parliamentary procedures.

  Section 13.093(1) governs the referral of bills to the joint committee on finance. It reads as follows: "All bills introduced in either house of the legislature for the appropriation of money, providing for revenue or relating to taxation shall be referred to the joint committee on finance before being passed."

  The broad language in this section has been interpreted and the precedent has been established requiring every bill with a definite negative state fiscal effect, no matter how small, to be referred to the joint committee on finance.

  If a fiscal effect is anticipated but cannot be accurately estimated the bill is usually referred to the joint committee on finance.

  The precedent of the Senate is quite clear, bills with a definite negative fiscal estimate have been referred to the joint committee on finance. Therefore, it is the opinion of the Chair that Senate Bill 31 be referred to the joint committee on finance and the point of order is well taken.

  Senator Fred A. Risser
President of the Senate

  [Background:]

  Representative Baldus asked unanimous consent that the rules be suspended to introduce and take up a joint resolution.

  Representative Freese objected.

  Representative Baldus moved that the rules be suspended to introduce and take up a joint resolution.

  Point of order: