Point of order:

  Representative Shabaz rose to the point of order that Assembly Bill 322 [relating to public employe occupational safety and health and granting rule-making authority] required a local fiscal estimate under section 13.10 of the Wisconsin Statutes. The speaker took the point of order under advisement.

  The speaker [Jackamonis] ruled the point of order on Assembly Bill 322 moot because a local fiscal estimate had arrived.

  Point of order:

  Representative Murray rose to the point of order that Senate Bill 185 [relating to arrest powers for conservation wardens] required a local fiscal estimate under section 13.10 (2) of the Wisconsin Statutes. The speaker took the point of order under advisement.

  The speaker [Jackamonis] ruled the point of order on Senate Bill 185 moot because a local fiscal estimate had been received.

  Point of order:

  Representative Murray rose to the point of order that the local fiscal estimate on Senate Bill 185 was obtained from the wrong agency. The speaker took the point of order under advisement.

  The speaker [Jackamonis] ruled the point of order on Senate Bill 185 moot because a local fiscal estimate had arrived.

  Point of order:

  Representative Ferrall rose to the point of order that Assembly Bill 1228 [relating to industrial revenue bonds and projects] was not properly before the assembly under Joint Rule 49 (2).

  Representative Ferrall asked unanimous consent to withdraw his point of order. Granted.

  Point of order:

140   Representative Hauke rose to the point of order that Senate Bill 156 [relating to deletion of the requirement for an affidavit from the circulator of nomination papers and providing a penalty] was not properly before the assembly because the bill required a fiscal estimate under Wisconsin Statutes 13.10 (2) and Joint Rule 41 (1). Representative Hauke cited the speaker's ruling on 1977 Assembly Bill 108 (1977 Assembly Journal, page 1068; penalty bills require fiscal estimate) as precedent for his point of order. The chair took the point of order under advisement.

  Because fiscal estimates on Senate Bill 156 had been received, the speaker ruled the point of order raised by Representative Hauke on Wednesday, October 3 (Assembly Journal, page 1198) to be moot.

  Point of order:

  Representative Lee rose to the point of order that the local fiscal estimate on Senate Bill 569 was not proper under Joint Rule 42 (1) (c).

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

  Point of order:

  Representative Shabaz rose to the point of order that Senate Bill 297 [renaming the department of public welfare in populous counties] required a local fiscal estimate.

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

  Point of order:

  Representative Tuczynski rose to the point of order that Senate Bill 322 [relating to permitting credit unions to levy maintenance charges on dormant accounts] required a fiscal estimate.

  Representative Duren rose to the point of order that Representative Tuczynski's point of order was not timely.

  The chair ruled the point of order not well taken.

  The chair ruled Representative Tuczynski's point of order well taken.

  The chief clerk was directed to obtain a fiscal estimate for Senate Bill 322.

  Point of order:

  Representative Flintrop rose to the point of order that Assembly Bill 108 [relating to battery to persons age 62 or older and providing a penalty] required a fiscal note under Wisconsin Statutes 13.10. The speaker took the point of order under advisement.

141   The speaker [Jackamonis] ruled well taken the point of order raised by Representative Flintrop on April 13, 1977 that Assembly Bill 108 required a fiscal estimate. The complete text of the speaker's ruling will be printed at a later date.

  On April 13, 1977 the gentleman from the 56th Assembly District raised the point of order that 1977 Assembly Bill 108, relating to battery to persons aged 62 or older and providing a penalty, requires a fiscal estimate under Joint Rule 41 (1) and section 13.10 (2) of the Wisconsin Statutes. The chair took the point of order under advisement.

  These two similarly worded regulations require that "any bill making an appropriation and any bill increasing or decreasing existing appropriations or

  state or general local government fiscal liability or revenues" be accompanied in the legislative process by a reliable estimate of the bill's anticipated fiscal effects. Whether or not bills that establish or alter penalties, but do not contain appropriation language, fall into this category of legislation, and thus are subject to the fiscal estimate requirement, is not readily apparent, but rather is a matter for reasoned inference and interpretation.

  In making that interpretation, the chair is persuaded that it should be guided by the purpose, nature and significance of the fiscal estimate requirement; existing precedents; the general significance of the fiscal implications of penalty legislation; an assessment of our capabilities to obtain reliable fiscal information for such legislation; and a consideration of the potential impact of this ruling on the legislative process.

  Purpose, Nature and Significance of Fiscal Estimates

  In 1957, the Wisconsin Legislature became the first state legislature in the Nation to require the publication of fiscal estimates as appendices to certain pending bills. Although the text of this requirement has undergone modification since its original enactment as Joint Rule 24 of 1957, the basic thrust and intent have remained the same: to supply legislators with reliable and handy financial information on bills under consideration in order to facilitate informed decision-making. Fiscal estimates provide information about the availability, source and proposed utilization of financial resources associated with legislative proposals. They are the "price tags" and "financial terms" attached to "commodities" in the legislative "marketplace". In the course of a legislative session, lawmakers are faced with making decisions on a great many separate proposals dealing with a wide variety of subjects, while at the same time they also experience a need to establish and pursue comprehensive goals and policies reaching beyond the purposes of specific pieces of legislation. Because financial considerations are an important "common denominator" of many legislative proposals, fiscal estimates can be a useful, important tool not only for evaluating specific proposals, but also for ordering priorities among them in the pursuit of broader public policies. Their importance takes on added dimensions when one considers the great reliance of legislatures on "the power of the purse" to exert influence in our tripartite framework of government.

  Precedents

142   A Legislative Reference Bureau review of rulings from the chair for the past 20 years located two which are clearly relevant to the current point-of-order. The first of these was established on April 21, 1959, when Lieutenant Governor Philleo Nash ruled (1959 Senate Journal, page 575) that 1959 Senate Bill 284, a penalty bill making it a felony to issue checks with intent to defraud, did not require a fiscal estimate. This ruling appears to be based primarily on an assessment that the fiscal impacts stemming from this legislation could not be reliably estimated. The ruling states in part:

  "...The only increase in the State's fiscal liability would arise in the event of a conviction under the criminal statutes and imprisonment at State expense." "In the opinion of the Chair, to require a fiscal note for such a remote, indefinite and uncertain obligation of the State, goes far beyond the meaning of Joint Resolution (sic) 24 and the intent of the legislature in enacting it."

  This 1959 ruling appears to have served as the generally controlling precedent for legislative practice with respect to penalty bills for nearly two decades.

  The other relevant precedent occurred on May 8, 1973 and limited the application of the Nash ruling by distinguishing between penalty bills in general and a sub-type of such bills. On that date, Lieutenant Governor Schreiber ruled (1973 Senate Journal, page 971) that penalty bills proposing a change in the treatment of offenders within the corrections system are subject to the fiscal estimate requirement. The specific proposal giving rise to the ruling, 1973 Senate Bill 227, made it mandatory for males aged 16 to 25 sentenced to prison for one year or more, to be placed first at the State Reformatory at Green Bay. Materials furnished to the Lieutenant Governor at the time by the state budget office indicated that the bill would have a direct, predictable effect on the costs of operating the State Reformatory and State Prison, as well as a possible indirect effect on the operational costs of the state's other correctional institutions. In arriving at his decision, the Lieutenant Governor appears to have relied heavily on the fact that at least some of this impact could be anticipated with a reasonable degree of confidence. While coming to different conclusions then, both Lieutenant Governors appear to have based their decisions principally upon assessments of the predictability of the fiscal impacts involved.

  Fiscal Implications of Penalty Legislation

  The typical penalty bill we are concerned with here does not make or alter an appropriation; does not have as a purpose the raising of revenue; does not necessarily increase state or local fiscal liability; and, given the enforcement, prosecutional and sentencing discretion enjoyed by executive and judicial officials, has an impact which, at best, is difficult to anticipate.

  Having said all this, it is nevertheless still true that most penalty bills do have potential fiscal impacts upon state and local treasuries and that such impacts can be substantial. This can be seen in the costs associated with implementing existing penalty legislation. The budget for the Division of Corrections in the current biennium is $116 million, and the Governor's proposed budget for this agency for the next biennium is $145 million, one of the greatest percentage increases for a state agency in the budget bill currently before the Legislature. According to the Division of Corrections, the cost of caring for each individual sentenced to a state prison is presently about $9,000 per year, and, since there currently is no unused bed capacity in the system, for every 25 to 30 individuals added to the prison system, capital expenditures of approximately $452,000 are required for facilities. Add to this the costs of enforcement and adjudication and it becomes clear that the cumulative impact of penalty legislation is indeed substantial and significant.

  Current Capacity to Make Reliable Fiscal Estimates

143   Since 1957 when the fiscal estimate procedure was established, state agencies have significantly enhanced their ability to estimate fiscal impacts of all kinds. The acquisition of computer capabilities and numerous data banks are just two developments in state government which have greatly increased the sophistication of state agencies in providing information and in forecasting events and consequences. So, too, has the Legislature grown in sophistication in its approach to fiscal estimates. This year, with the adoption of the Legislature's joint rules, for the first time agencies have been instructed to specify in the narrative part of their estimates the assumptions utilized in computing costs and to provide a range of estimates when there is reasonable doubt about the impact of a proposed change in the law. These and other changes are resulting in the provision of meaningful and useful information to legislators, even when there is a great deal of uncertainty concerning the reliability of "bottom line" or net estimates, and even when no such net

  estimate is actually attempted. None of this is to say that predicting the fiscal impacts of many penalty bills will not continue to be frought with difficulty, due to the number and complexity of the variables generally involved. Rather, it is merely to say that we are now much better prepared to deal with the problems associated with such attempts and that important and relevant financial information can be provided even when reliable estimates are impossible. The fact that a reliable estimate cannot be provided for a bill, furthermore, is in itself important information for legislative decision-making.

  Decision

  Taken together, the language of the fiscal estimate requirement, its purpose, the significance of fiscal information in the legislative process, the significance of present-day fiscal effects stemming from penalty legislation, and our improved capability to anticipate such effects and deal with fiscal estimate information in a way which contributes to rationality in legislative decision-making, all point to the conclusion that Lieutenant Governor Schreiber's ruling should now be expanded to cover additional groups of penalty bills. The only element of this analysis pointing to a different conclusion is the ruling of Lieutenant Governor Nash. In the opinion of the chair, however, that precedent should be read with an understanding that with the passage of time often come changes in the settings and circumstances relied upon to arrive at and justify applications of general requirements to specific situations. It is the opinion of the chair in this case that a different answer today to the same question raised and ruled upon many years ago is justified by the changes in state government which have occurred since 1959. The only question remaining, then, is the extent to which the Schreiber ruling should be expanded.

  Given the generally acknowledged importance of fiscal information in the legislative process, it would seem far better to err on the side of asking agencies to prepare fiscal estimates for bills for which reliable estimates currently cannot be provided than it would to err on the side of not asking for such estimates when they actually could be provided. As already pointed out, even when agencies cannot make reliable net estimates, significant and meaningful information can be generated for the Legislature in the fiscal estimate process. Furthermore, it is reasonable to assume that asking agencies for estimates they are presently incapable of supplying will stimulate them to acquire such capabilities in the future. To maximize the availability of fiscal information in the legislative process, then, a policy of liberally construing the fiscal estimate requirement to apply to all penalty bills would seem most appropriate.

144   In addition, the chair is informed by the Legislative Reference Bureau that requiring fiscal estimates on all penalty bills would simplify their responsibility of identifying bills for which fiscal estimates are required, while a policy of distinguishing between different types of penalty bills would only complicate it. Based on the 1973 ruling of Lieutenant Governor Schreiber, the Bureau has generally sought fiscal estimates for penalty bills with a direct cost impact on the State's correctional system. The distinction between penalty bills having and not having such an impact, however, is tenuous at best, and, in practice, the chair is told, has led to frequent discussions in the Bureau as to whether a specific bill requires or does not require a fiscal estimate. This uncertainty is undesirable, for the legislative process is served best when a procedure is applied uniformly to groups of bills which can be easily identified by different individuals with few disagreements.

  Accordingly, the chair now rules that the point of order raised by the Gentleman from the 56th Assembly District is well taken and that all penalty

  bills offered in the Assembly require fiscal estimates under Joint Rule 41 (1) and section 13.10 (2) of the Wisconsin Statutes.

[Point of order:]

  Senator Sensenbrenner raised the point of order that pursuant to joint rule 49 (2) the bill [Senate Bill 379, relating to allowing brewers, bottlers and wholesalers to make contributions to certain organizations] could not be considered for passage until a fiscal estimate was received.

  The chair [Lt.Gov. Schreiber] ruled the point of order well taken.

  Point of order:

  Representative Munts rose to the point of order that Senate Bill 255 [relating to mandatory coverage of chiropractic services in health, accident, sickness and casualty insurance policies, and providing a penalty] required a local fiscal note under Wisconsin Statutes 13.10.

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

  Point of order:

  Representative Jackamonis rose to the point of order that Assembly Bill 125 [relating to limiting liability of landowners who allow their land to be used for certain outdoor recreational activities] required a fiscal note.

  The speaker [Anderson] ruled the point of order well taken. The chief clerk was directed to obtain a local fiscal note.