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:
"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."
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
Senate Journal of October 6, 1983 .......... Page: 385
[Point of order:]
Senator Harsdorf raised the point of order that Assembly Bill 16 [relating to repair, replacement and refund under new motor vehicle warranties] should be referred to joint committee on Finance. The chair took the point of order under advisement.
Senate Journal of October 6, 1983 .......... Page: 389
Ruling of the chair [Pres. Risser]:
Earlier today the Senator from the 10th, Senator Harsdorf, raised the point of order that Joint Rule 41 (a) required that Assembly Bill 16 have a Fiscal Estimate prepared.
Joint Rule 49 requires the presiding officer to determine if a fiscal estimate is required. A reading of the bill does not reveal any immediate indication of where there may be an increase or decrease in fiscal liability to local or state government. Since Joint Rule 41 (a) and Sec. 13.093 (2) (a) of the statutes require that only bills making an appropriation or increasing or decreasing existing appropriations or state or general local government fiscal liability or revenues shall have a fiscal estimate, it is the opinion of the chair that Assembly Bill 16 does not fall into this category, does not therefore require a fiscal estimate and the point of order raised by the Senator from the 10th, Senator Harsdorf, is not well taken.
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Assembly Journal of March 16, 1982 .......... Page: 2715
Point of order:
Representative Tregoning rose to the point of order that Assembly Bill 839 [relating to wetland protection, duration of permits relating to navigable waters, permit requirements for certain activities conducted near navigable waters, removal of materials from certain waterways and granting rule-making authority] was required to be referred to the Joint Committee on Finance.
[Note:] Although the fiscal estimate by the Department of Natural Resources claimed a possible maximum cost of $356,000 per year, neither the bill nor A.Sub.1 (which was pending), provided any funding.
See s. 13.093 (1), stats.: "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 speaker [Jackamonis] ruled the point of order not well taken.
Assembly Journal of October 21, 1981 .......... Page: 1361
Point of order:
126 Representative Shabaz rose to the point of order that Assembly Bill 248 [relating to a school board's obligation to provide transportation for pupils attending private school] was
required to be referred to the Joint Committee on Finance under section 13.10 (1) of the Wisconsin Statutes.
The speaker [Jackamonis] ruled the point of order not well taken because the bill did not provide for an appropriation.
Assembly Journal of October 21, 1981 .......... Page: 1362
Point of order:
Representative Flintrop rose to the point of order that Assembly Bill 248 required a local fiscal estimate under section 13.10 (2) (a) of the Wisconsin Statutes.
[Note:] When the point of order was raised, the assembly had already adopted A.Sub.1 and A.Amdt.3 thereto (A.Jour., p. 1360).
The speaker [Jackamonis] ruled the point of order not well taken because a local fiscal estimate had been prepared on the original bill and one was not required on the substitute amendment.
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Senate Journal of April 1, 1982 .......... Page: 1942
Point of order:
Senator Kleczka moved that Assembly Bill 887 [relating to consideration for small businesses in state agency rule making] be referred to joint committee on Finance.
Senator Bablitch raised the point of order that Assembly Bill 887 does not have to be referred to joint committee on Finance. The chair took the point of order under advisement.
[Note:] A bill may have a significant fiscal impact without having to be referred to the joint committee on finance. For 1981 AB 887, the department of administration estimated one-time costs of $351,800 and continuing annual costs of $178,008.
Referral to the joint committee on finance is required under s. 13.093 (1), stats.: "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".
1981 AB 887 did not appropriate money and did not provide for revenue or relate to taxation.
[No further action.]
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Assembly Journal of March 18, 1980 .......... Page: 2838
Point of order:
Representative Loftus rose to the point of order that Assembly Bill 1228 must be referred to the Joint Committee on Finance under section 13.10 of the Wisconsin Statutes because section 10 of the bill has a state fiscal impact.
127 The chair [Speaker Jackamonis] ruled the point of order not well taken because the language in section 10 of the bill had been removed.
Assembly Journal of January 24, 1980 .......... Page: 1910
Point of order:
Representative Loftus rose to the point of order that Assembly Bill 1065 [relating to injury by improper use of a noxious substance and providing a penalty] needed to be referred to the Joint Committee on Finance. The speaker took the point of order under advisement. [Intervening text omitted.]
[Note:] The bill had fiscal estimates from the director of state courts, the state public defender, DILHR, and the division of corrections in DH&SS. However, referral to the Joint Committee on Finance is mandatory only for bills .... "for the appropriation of money, providing for revenue or relating to taxation" [s. 13.10 (1), 1977 stats.], and this bill did not do any of those things.
The speaker [Jackamonis] ruled not well taken the point of order raised by Representative Loftus that Assembly Bill 1065 needed to be referred to the Joint Committee on Finance.
Assembly Journal of January 22, 1980 .......... Page: 1863
Point of order:
Representative Quackenbush rose to the point of order that Assembly Bill 883 [relating to duration of dispositional orders for children adjudged delinquent whose legal custody has been transferred to the department of health and social services] needed to be referred to the Joint Committee on Finance under section 13.10 of the Wisconsin Statutes.
[Note:] According to a detailed fiscal estimate by the Division of Corrections, DH&SS, extending the duration of dispositional orders to one year carried a $1,154,000 price tag.
However, cost alone does not require referring a proposal to the Joint Committee on Finance. Under s. 13.10 (1) [1977 stats.], such referral is mandatory only for bills .... "for the appropriation of money, providing for revenue or relating to taxation".
The speaker [Jackamonis] ruled the point of order not well taken.
Assembly Journal of May 3, 1979 .......... Page: 515
Point of order:
