Senator Davis raised the point of order that Assembly Joint Resolution 117 cannot be before the Senate since it is not part of the call of the Extraordinary Session.
[Note:] The original call of the April 1988 Extraordinary Session by the Committees on Senate and on Assembly Organization already mentioned "taxes, and property tax relief"; Senate Journal 4/18/88, at page 816.
On 4/20/88 (Senate Journal, page 825), the committees amended the call "to include consideration of a joint resolution to amend the state constitution relating to nonuniform taxation of real property classified as primary personal residence or as improvements to agricultural land and to state income tax credits for property or sales taxes due in this state (first consideration)". The second half of that sentence encompassed the content of 1987 AJR 117.
The Chair [President Risser] ruled the point of order not well taken.
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Assembly Journal of January 22, 1980 .......... Page: 1848
Point of order:
Representative Wahner rose to the point of order that the hour of 10:00 A.M. had arrived and, therefore, the assembly was in extraordinary session.
Representative Shabaz stated that the assembly was in special session pursuant to Article IV, Section 11 of the Wisconsin Constitution.
The speaker [Jackamonis] ruled well taken the point of order raised by Representative Wahner that the assembly was in extraordinary session. He ruled that a regular session or an extraordinary session called by the legislature takes precedence over a special session called by the governor and cited two precedents as the basis for his ruling: 1) the June 19, 1962 ruling of senate president pro tempore Panzer and, 2) the December 10, 1963 ruling of assembly speaker Haase.
Representative Shabaz appealed the ruling of the chair. Representative Shabaz moved that the rules be suspended and that Assembly Bill 1, January 1980 Special Session be withdrawn from the committee on Criminal Justice and Public Safety and taken up at this time.
The speaker [Jackamonis] ruled the motion out of order.
The question was: Shall the decision of the chair stand as the judgment of the assembly?
119 The roll was taken. [Display of roll call vote omitted; ayes-59,noes-36.] Motion carried.
The assembly recessed the special session and went into extraordinary session pursuant to the speaker's ruling.
Assembly Journal of January 22, 1980 .......... Page: 1859
Point of order:
Representative Shabaz rose to the point of order that the hour of 2:01 P.M. had arrived and the assembly was in special session.
The speaker [Jackamonis] ruled the point of order not well taken for the same reasons stated in the ruling he made earlier today [see ruling on page 1848].
Finance: referral of proposal to joint committee on
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Senate Journal of March 21, 1994 .......... Page: 876
[Point of order:]
Senator George raised the point of order that Senate Bill 750 [relating to waiver of juvenile court jurisdiction, jurisdiction over and disclosure of the identify of a child who is accused of causing death or great bodily harm by committing certain offenses, jurisdiction over a child who is accused of violating a state criminal law after the juvenile court has waived its jurisdiction over the child for a previous violation, victim attendance at waiver hearings, adult court access to juvenile court records and providing a penalty] was required to be referred to the joint committee on Finance.
[Note:] Section 13.093 (1) of the statutes deals with the types of bills required to be referred to the joint committee on finance.
1993 SB 750 did not appropriate money, provide for revenue or relate to taxation.
The Chair ruled the point not well taken.
Senate Journal of February 22, 1994 .......... Page: 750
[Point of order:]
Senator Risser raised the point of order that the bill [Senate Bill 722, relating to expanding the small employer insurance board and renaming it the comprehensive health care board; modified community rating, fair market standards, portability, preexisting condition exclusions and guarantee issue for individual and certain group health benefit plans; establishing a standard plan; allowing the group insurance board to contract with purchasing coalitions; and granting rule-making authority] is required to be referred to the joint committee on Finance.
[Note:] According to the fiscal estimate submitted by the office of the commissioner of insurance, the proposal had an annualized fiscal impact on state costs of $490,327.
120 The Chair ruled the point of order well taken.
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Assembly Journal of March 3, 1988 .......... Page: 777
Point of order:
Representative Schneider rose to the point of order that Assembly Bill 851 [relating to creating a department of tourism, abolishing the division of tourism in the department of development and making an appropriation] was required to be referred to the Joint Committee on Finance under section 13.093 of the Wisconsin Statutes. The speaker took the point of order under advisement.
[Note:] In reconstituting the DOD division of tourism as a department of tourism, 1987 AB 851 created an appropriation for the new department to be funded by $6,316,100 taken from DOD and representing the amount appropriated to DOD for the tourism function.
Because no new money was involved, the prevailing view held that AB 851 was not a bill "for the appropriation of money, providing for revenue or relating to taxation" which, under s. 13.093 (1), stats., required referral to the joint finance committee before being passed.
The bill had a significant fiscal effect: $6.3 million was appropriated to the proposed department of tourism. The appropriation to DOD was reduced by an identical amount of $6.3 million. Consequently, the bill's overall fiscal effect was $12.6 million.
A subsequent motion to refer AB 851 to the joint finance committee failed ayes-42, noes-56 (Assembly Journal 3/16/88, page 869).
Assembly Journal of March 15, 1988 .......... Page: 847
The chair [Rep. Clarenbach, speaker pro tem] ruled not well taken the point of order raised by Representative Schneider on March 3 that Assembly Bill 851 was required to be referred to the Joint Committee on Finance.
Assembly Journal of February 11, 1988 .......... Page: 649
Point of order:
Representative Prosser rose to the point of order that Assembly Bill 682 [relating to discontinuing the indexing of the motor fuel and special fuel taxes] was required to be referred to the Joint Committee on Finance under section 13.093 of the Wisconsin Statutes.
121 [Note:] Sec. 13.093 (1), stats., reads: "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."
By freezing the rate of the motor fuel tax at the current 20% and abolishing future indexing, the bill was clearly a bill "providing for revenue or relating to taxation."
The point of order may not have been timely. The bill had been referred to, and reported by, the Assembly Committee on Ways and Means. Under A.Rule 45 (1), it should have been referred to the Joint Finance Committee before being scheduled. Since that had not been done, and the Assembly had just considered and rejected A.SubAmdt.2, it might have been better first to complete 2nd reading in order to obtain the Finance Committee's report on the version of the proposal given preliminary Assembly approval.
However, following consideration and rejection of A.Amdt.1 to A.Sub.Amdt.1, Rep. Schneider, Assembly Cochair of the Joint Finance Committee, moved that the bill be referred to his committee and it was so so referred, ayes-52, noes-45.
The chair [Rep. Clarenbach, speaker pro tem] ruled the point of order not well taken.
Assembly Journal of October 15, 1987 .......... Page: 424
Point of order:
Representative Radtke rose to the point of order that Assembly Bill 553 [relating to the date of the 1988 spring primary, presidential preference primary and spring election and certain other dates for election-related events]
must be referred to the Joint Committee on Finance under section 13.093 (1) of the Wisconsin Statutes because of the adoption of assembly amendment 1 which contained a sum sufficient appropriation.
[Note:] Sec. 13.093 (1), stats., reads: "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 word "passed" probably means final passage by both houses.
In a somewhat similar situation in 1978 (Sen. Jour., p. 1684), President pro tem. Risser ruled that 1977 AB 754 (inland lake protection) did not have to be referred to a joint survey committee following the adoption of S.Amdt.1: only "original measures are 'introduced', while amendments .... are 'offered' .... only original measures, not amendments, are referred to committee".
The effect of the "sum sufficient" in assembly amendment 1 was minimal. It provided funding only to conduct the 1988 presidential preference primary in municipalities not holding a 1988 spring election for any other purpose.
The chair [Rep. Clarenbach, speaker pro tem] ruled the point of order not well taken.
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Assembly Journal of March 25, 1986 .......... Page: 994
Point of order:
Representative T. Thompson moved reconsideration of the vote by which assembly amendment 1 to senate amendment 1 to assembly amendment 23 to Senate Bill 120 [relating to campaign financing, providing a penalty and making an appropriation] was laid on the table. Entered.
122 Representative Prosser moved nonconcurrence in senate amendment 1 to assembly amendment 23 to Senate Bill 120.
The question was: Shall senate amendment 1 to assembly amendment 23 to Senate Bill 120 be nonconcurred in? The roll was taken. [Display of roll call vote omitted; ayes-48, noes-50.] Motion failed.
Representative R. Travis rose to the point of order that Senate Bill 120 was required to be referred to the Joint Committee on Finance under section 13.093 (1) of the Wisconsin Statutes.
[Note:] For a bill requiring referral to the joint fiance committee, the point of order would be timely in conjunction with the vote on passage or concurrence. The statutory rule requires only one referral between the 2 houses.
The history of SB 120 shows that the bill was referred to joint finance (dipped) in the senate (Sen.Jour. 6/13/85, p. 232).
The chair [Rep. Clarenbach, speaker pro tem] ruled the point of order not timely.
Assembly Journal of February 13, 1986 .......... Page: 690
Point of order:
Representative Schneider rose to the point of order that Assembly Bill 603 [relating to various changes to the statutes pertaining to elementary and secondary education] must be referred to the joint committee on Finance. The chair [Rep. Clarenbach, speaker pro tem] took the point of order under advisement.
[Note:] The fiscal estimate by the department of public instruction stated that the "department has reviewed the proposed changes [contained in the bill's 26 sections] and estimates that none would have a state or local fiscal impact.
By statute [s. 13.093 (1)], joint finance referral is required only for bills "for the appropriation of money, providing for revenue or relating to taxation".
Assembly Journal of February 20, 1986 .......... Page: 722
Ruling on the point of order:
The chair [Rep. Clarenbach, speaker pro tem] ruled the point of order, which was raised by Representative Schneider on Assembly Bill 603 on Thursday, February 13, 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.
123Senate 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:
...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.
124 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:
