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.
603 [Note:] Speaker Loftus agreed with a narrow interpretation of s. 13.50 (6)(a), stats., that the bill did not create, modify or make any provision for the retirement of "public employes". The speaker also pointed out that whether or not the bill was referred to the JSCRS would have no effect on the bill's ultimate legality "if passed and signed into law. The Wisconsin supreme court recently stated that the failure of the legislature to follow procedural statutes governing legislative consideration of proposals has no effect on the validity of the resulting law"; State ex rel. La Follette v. Stitt, 114 Wis. 2d 358 (1983).
After the bill was passed by the assembly, a similar point of order was raised in the senate. President Risser agreed with the broad view that a bill affecting the investment of trust fund moneys had an impact on the retirement "system" and referred the bill to JSCRS (Sen.Jour. 3/26/86, p. 807).
The speaker [Loftus] ruled the point of order not well taken.
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Senate Journal of February 27, 1986 .......... Page: 634
[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.
Senate Journal of March 6, 1986 .......... Page: 663
[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
Suspension of rules
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Assembly Journal of February 17, 1993 .......... Page: 61
[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:
Representative Welch rose to the point of order that the motion to introduce and take up a joint resolution was not properly before the assembly, because copies of the joint resolution were not distributed to the members under Assembly Rule 35 (1).
[Note:] Assembly rule 35 (1) requires that proposals, except resolutions for special orders of business or dealing with the members, procedures or organization of the assembly, be available for 24 hours before they are considered.
In this case, however, Mr. Baldus had first asked for unanimous consent and then moved to suspend the rule. Both procedures are permitted. The journal does not record the nature of the resolution that Mr. Baldus attempted to introduce and take up.
On 2/23/93, Mr. Baldus introduced Assembly Joint Resolution 23, providing for an advisory referendum on the question of phasing out most authorized gambling in this state.
606 The chair (Speaker pro tempore Carpenter) ruled the point of order not well taken because the joint resolution was not yet before the assembly, and the motion to suspend that rule in order to introduce and take up a joint resolution was proper.
The question was: Shall the rules be suspended to introduce and take up a joint resolution? [Display of roll call vote omitted; ayes-54, noes-45.] Motion failed.
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Assembly Journal of April 19, 1988 .......... Page: 1007
Point of order:
Representative Welch rose to the point of order that Assembly Joint Resolution 115 [relating to retroactive exemption of 1987 Assembly Bill 850 and 1987 Assembly Bill 1016 from adverse disposal] was not properly before the assembly under Joint Rule 96 (2) because the committee on Rules had voted to introduce the joint resolution less than twenty-four hours ago.
[Note:] Joint Rule 96 (2) "Any proposal to rescind or change a joint rule shall be introduced as a joint resolution stating the proposed change. Except as authorized by unanimous consent or by vote of two-thirds of the members present, the joint resolution shall not be acted upon in either house until copies of the joint resolution have been made available to the members for 24 hours."
The rule does not require a 24-hour delay after introduction.
The speaker [Loftus] ruled that, although the committee on Rules had voted to introduce the joint resolution less than twenty-four hours ago, the point of order was not well taken because copies of the joint resolution were sent to the members last week.
Assembly Journal of March 25, 1988 .......... Page: 987
[Background:] After Rep. Hauke (majority leader) moved that the assembly stand adjourned, Rep. Welch "moved that the rules be suspended and that Senate Bill 300 be withdrawn from the committee on Rules and taken up at this time". The chair [Rep. Clarenbach, speaker pro tem] ruled the motion out of order because a motion to adjourn was pending.
Point of order:
Representative Welch rose to the point of order that the motion was proper under Assembly Rule 90 (3).
607 [Note:] Assembly Rule 90 (3) A unanimous consent request or a motion to suspend the rules may be made at any time under any order of business by a member who obtains the floor, but not while the assembly is voting.
Technically, Rep. Welch may have been correct; see also Assembly Rules 65 (1) (a) and (c) which provide that a motion to suspend the rules outranks a motion to adjourn.
However, this was the last day of the final general business floorperiod; it was Friday night, the time was almost 11:30 p.m., and the session would end at midnight. It was not likely that the Senate could establish its position on the annual budget (AB 850) by that time, and return the bill to the Assembly for concurrence in amendments.
Speaker pro tem. Clarenbach probably based his ruling on Assembly Rule 90 (4), which says that "motions to suspend the rules shall not be permitted for .... clearly dilatory purposes".
As shown be the subsequent action, the Assembly wanted to go home:
Representative Loftus moved that the assembly stand adjourned pursuant to Assembly Joint Resolution 1.
The question was: Shall the assembly stand adjourned pursuant to Assembly Joint Resolution 1? The roll was taken. [Display of roll call vote omitted; ayes-54, noes-42.] Motion carried. The assembly stood adjourned.
Assembly Journal of February 2, 1988 .......... Page: 602
Point of order:
Representative Fergus rose to the point of order that assembly amendment 4 to Assembly Bill 273 [relating to forced viewing of sexual activity and providing penalties] was not germane under Assembly Rule (54) (3) (f) [substantial expansion of scope].
Representative Welch moved that Assembly Rule 54 be suspended.
The speaker [Loftus] ruled the motion out of order because a point of order was pending. The speaker took the point of order under advisement.
[Note:] A.Amdt-4, in its item 3: 1) created a new Class A misdemeanor; and 2) redefined 2 existing Class D felonies.
The creation of the new Class A misdemeanor of failure to summon law enforcement when knowing that a child is forced to view something obscene expanded the scope of AB 273. An amendment "which substantially expands the scope of the proposal" is declared not germane by A.Rule 54 (3) (f).
The redefining of the existing Class D felony under s. 944.21 (1), stats., and the redefining of the existing Class D felony under s. 944.21 (2), stats., also expanded the scope of 1987 AB 273.
Assembly Journal of February 2, 1988 .......... Page: 605
The chair [Rep. Clarenbach, speaker pro tem] ruled that assembly amendment 4 to Assembly Bill 273 was not germane under Assembly Rule 54 and that the point of order raised by Representative Fergus was well taken.
Assembly Journal of October 22, 1987 .......... Page: 459
[Motion out of order:]
Representative Prosser moved that Assembly Rule 54 (3) (f) be suspended to allow consideration of assembly amendment 6 to assembly substitute amendment 1 to Assembly Bill 24 [relating to employment relations for members of the university of Wisconsin system academic staff].
608 [Note:] A.Rule 90 (4) says that "motions to suspend the rules shall not be permitted for frivolous, indecorous or clearly dilatory purposes".
That rule fails to mention a more prosaic reason: no rule should ever be suspended when the end sought to be achieved by the suspension can be achieved under a regular procedure provided in the rules. The proper way to overcome a ruling of nongermaneness is to appeal the ruling of the chair.
The speaker [Loftus] ruled the motion out of order.
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Senate Journal of March 23, 1988 .......... Page: 792
[Background:] Senator Strohl moved that Assembly Bill 991 [relating to obscenity, defining obscene material and obscene performance and providing penalties] be taken up at this time. The question was: Shall the rules be suspended and Assembly Bill 991 be taken up at this time?
[Point of order:]
Senator Chilsen raised the point of order that Assembly Bill 991 cannot be before the body without being available for viewing.
[Note:] Beginning at 10 a.m. on Wednesday, March 23, 1988, the Senate recessed (rather than adjourned) from evening to morning so as to stay on the 3/23/88 legislative day without ever reaching the 14th order of business, "motions may be offered".
The first recess was from 5:33 p.m. on Wednesday to 10:10 a.m. on Thursday (3/24/88, S.Journ. p. 771). The 2nd such recess was from 11:15 p.m. on Thursday to 8:25 a.m. on Friday (3/25/88, S.Journ. p. 783). Adjournment of the legislative Wednesday finally came at 1:16 a.m. Saturday morning (S.Journ. p. 793).
Although Sen. Chilsen's point of order is shown in the "Wednesday" journal, its display on page 792 makes it clear that the incident happened sometime between 9:47 p.m. and 11:35 p.m. on Friday, 3/25/88.
The Assembly adopted A.SubAmdt.1 to AB 991, and messaged AB 991 to the Senate, on Thursday, March 24, 1988, sometime between 7:25 p.m. and 9:35 p.m
(A.Journ. pp. 970-971). At the time of Sen. Chilsen's point of order, AB 991 had been "available for viewing" in the Senate for at least 24 hours.
However, the majority leader, Sen. Strohl, had moved a suspension of the rules so as to take up the bill. Even if a rule could be found requiring 24-hour availability of bills received for concurrence, that rule would have been superseded by the motion to suspend.
The Chair [Pres. Risser] ruled the point of order not well taken.
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Assembly Journal of March 20, 1984 .......... Page: 982
[Motion to suspend germaneness rule:]
609 Representative Merkt moved that Assembly Rule 54 (3) (f) [substantial expansion of scope] be suspended to allow consideration of assembly amendment 8 to Senate Bill 663 [relating to the individual and corporate surtaxes, the homestead credit, the required general fund balance, reducing the bonding authority for highway projects, income tax exemptions, income and franchise tax deductions for intercorporate dividends and for insurers' loss carry-backs, property tax statements, the definition of the internal revenue code for purposes of the income, franchise, inheritance and minimum taxes, required health insurance coverage, income tax exemptions, utility taxes on telephone companies, decreasing the primary guaranteed valuation, providing penalties and making an appropriation].
The speaker [Loftus] ruled the motion out of order.
Point of order:
Representative Johnson rose to the point of order that assembly amendment 8 to Senate Bill 663 was not germane under Assembly Rule 54 (3) (f) [substantial expansion of scope].
Representative Merkt moved that Assembly Rule 54 (3) (f) be suspended to allow consideration of assembly amendment 8 to Senate Bill 663.
The speaker ruled the motion out of order. The speaker took the point of order under advisement. [Intervening text omitted.]
