420 By request of Senator Chilsen, with unanimous consent, he temporarily withdrew his point of order. The chair took the point of order by Senator Bablitch under advisement.
Senate Journal of April 19, 1979 .......... Page: 269
The State of Wisconsin Office of the Lieutenant Governor
Ruling of the Chair on the Point of Order raised by Senator Bablitch on March 1, 1979, regarding (1) the legality of the Lieutenant Governor sitting as presiding Officer of the Senate on February 27, 1979, and (2) the casting of a tie-breaking vote by the Lieutenant Governor at a time when it is conceded that Governor Lee Sherman Dreyfus was out of the state.
On March 1, 1979, Senator Bablitch raised a point of order that the tie-breaking vote by Lieutenant Governor Russell Olson on February 27, 1979, re: indefinite postponement of Senate Bill 5, as shown on page 183 of the Senate Journal, was contrary to Senate Rule 2 and Article IV and Article V of the Wisconsin Constitution, in that at the time the vote was cast, Governor Lee Sherman Dreyfus was out of the state; that the said vote therefore is null and void, and the question of indefinite postponement, therefore, should have failed on a 15-15 tie vote.
Pursuant to the above point of order being raised by Senator Bablitch, the Chair invited debate and discussion, following which, the Chair took same under
advisement. Chapter 2, Senate Rule 7 (3) of the 1979 Senate Rules provides as follows: "Whenever the president finds it necessary to take a point of order under advisement in order to consult all sources of parliamentary law and practice available, the president shall submit the decision in writing stating the source consulted and the reasons for the decision. The text of the president's decision shall be spread upon the journal."
Senator Bablitch directs the Chair to three sources of authority in support of his point of order. They are as follows: (1) Senate Rule 2; (2) Section 7, Article V of the Wisconsin Constitution; (3) Section 9, Article IV of the Wisconsin Constitution.
Mason's Manual of Legislative Procedure on page 32 recognizes that the Rules of Legislative Procedure are derived from seven principal sources: (1) Constitutional Rules; (2) Statutory Rules or Charter Provisions; (3) Adopted Rules; (4) Judicial Decisions; (5) Adopted Parliamentary Authority; (6) Parliamentary Law; and (7) Customs and Usages. Let us, therefore, review the exact language of the authorities cited by Senator Bablitch.
Chapter 1, Senate Rule 2 (1), 1979 Senate Rules: The Senate shall designate one of its members to serve as president pro tempore for the legislative Biennium. The president pro tempore shall act as president of the Senate whenever the lieutenant governor shall not attend or shall act as Governor, as provided in Section 9 of Article IV of the constitution and as further set forth in Section 13.13 (3) of the Statutes.
Section 7, Article V of the Wisconsin Constitution: In case of the impeachment of the Governor, or his removal from office, death, inability from mental or physical disease, resignation or absence from the state, the powers and duties of the office shall devolve upon the Lieutenant Governor for the residue of the term or until the Governor, absent or impeached, shall have returned, or the disability shall cease.
Section 9, Article IV of the Wisconsin Constitution: Each house shall choose its own officers, and the Senate shall choose a temporary President when the Lieutenant Governor shall not attend as President, or shall act as Governor.
421 Senator Bablitch interprets the above cited authorities in urging acceptance of the proposition that whenever the Governor is absent from the State, the Lieutenant Governor becomes Acting Governor, and therefore, shall not preside over the Senate as
President. That interpretation and argument would then lead to the logical conclusion that the Lieutenant Governor on February 27, 1979, could not have lawfully cast a tie breaking vote on the question of indefinite postponement of Senate Bill 5, and thus the question of indefinite postponement should have failed on a 15-15 tie vote.
The Chair concurs with the proposition that the language contained in Section 7, Article V of the Wisconsin Constitution is clear in providing that whenever the Governor is absent from the State, that the powers and duties of that office shall devolve upon the Lieutenant Governor, and that during such time the Lieutenant Governor becomes the Acting Governor of the State. However, the Chair fails to find explicit language either in the Senate Rules or the Wisconsin Constitution to support the balance of Senator Bablitch's contention that when the Lieutenant Governor becomes the Acting Governor of the State, he shall not attend as President of the Senate. Simply stated, neither the Senate Rules nor the applicable sections of the Wisconsin Constitution affirmatively prohibit an Acting Governor, who still possesses the statutory powers and duties of Lieutenant Governor, from attending as President of the Senate. In addition to the foregoing, the Chair notes that the Journal of Senate Proceedings for February 27, 1979, contains no entry of objection to the Lieutenant Governor
presiding as President of the Senate. Therefore, it is the position of the Chair that in lieu of explicit language in the Wisconsin Constitution or the Senate Rules prohibiting a Lieutenant Governor upon whom has devolved the powers and duties of Governor, from presiding as President of the Senate, it is necessary to examine other sources of rules of procedure, such as those outlined by Mason in his Manual of Legislative Procedure.
In order, therefore, to properly rule on the point of order raised, it is necessary to explore in detail the accumulated parliamentary law of the Senate as well as its customs and usages. Mason's Legislative Manual, Section 35 defines parliamentary law as consisting of the recognized rules, precedents and usages of legislative and administrative bodies by which their procedure is regulated. According to Section 38 of Mason's Legislative Manual: "parliamentary law is drawn mainly from five sources: (1) Decisions of bodies on appeal; (2) Decisions of presiding officers on points of order; (3) Decisions of courts; (4) Writings of authorities on parliamentary law; and (5) Customs and usages."
It is apparent, therefore, that in the absence of explicit and controlling language in the form of constitutional mandates, statutes, or formal and written adopted rules of the body, one must turn for direction to precedents established in the Senate with respect to the same or similar questions of procedure raised in the past. Section 39, entitled "Precedents and Usages" in Mason's Legislative Manual provides as follows: "When in a deliberative body a certain mode of procedure has been adopted in any case it becomes a precedent for its government in every case thereafter of a similar character; thus, in time a succession of precedents is adopted, forming together a regular system of procedure, known as parliamentary law, and which, when once established, is binding upon the body."
422 An examination of the Journal of the Senate reveal that the question raised by Senator Bablitch on March 1, 1979, was confronted and dealt with by the Senate on March 26, 1976. Specifically, the Journal reveals that Senator Chilsen asked unanimous consent that the record of proceedings of March 25, 1976, be expunged as it related to Senate Bill 500 because the Lieutenant Governor should not have been presiding, pursuant to Senate Rule 2 (1). A further examination of the record indicates that, indeed, the fact situation culminating in the raising of a point of order by Senator Bablitch on March 1, 1979, is identical to the fact situation which led to the motion for expungement raised by Senator Chilsen on March 26, 1976. The Chair, in preparation of this written opinion, has had the benefit of litening to the tape recorded proceedings of the Senate on March 1, 1979, and the
arguments of the opponents and proponents of the point of order raised. The Chair must comment at this juncture that it finds no merit in Senator Bablitch's contention that the proceedings of March 26, 1976, should have no precedent value because the issue was not presented to the Senate for its deliberation in the form of a point of order. In support of that no merit finding, I direct the Senate's attention to page 54 of Mason's Legislative Manual:
"Precedents, as distinguished from usages, are the decisions made by the presiding officer, or by the body upon appeal, when a question concerning a practice or point of procedure has been raised, as by a point of order. A not inconsiderable part of parliamentary law is based upon the established usages of legislative bodies. The knowledge of the usages and customs of a legislative body are drawn from treatises on parliamentary practice, from the records of the body, insofar as the usages can be ascertained from them, and from the personal knowledge of the presiding officer and members."
According to the Journal of March 26, 1976, Senator Chilsen moved that the record of Senate Bill 500 be expunged from the Journal of March 25, 1976. It is
furthermore conceded that the motion for expungement was premised squarely on the fact that then Lieutenant Governor Martin J. Schreiber, presiding as President of the Senate, at a time when it was acknowledged that then Governor Lucey was out of the State, cast a tie breaking vote on Senate Bill 500. Thus, the question raised by Senator Bablitch's point of order on March 1, 1979, was squarely and in its entirety before this body for its determination on March 26, 1976. The Senate, on that date, defeated Senator Chilsen's motion to expunge, 17-13. It is therefore, the position of the Chair that this body clearly expressed its will on March 26, 1976, and thereby, established the precedent that the Lieutenant Governor, upon whom has devolved the powers and duties of Governor, by virtue of the Governor's absence from the State, may continue to attend upon and preside over the Senate as its President. Section 39, Para. 5, of Mason's Legislative Manual further supports the position of the Chair: "When there is an established practice in a deliberative body, or there has been a previous decision on a question, the practice or precedent may be said to govern."
For all the reasons cited above, and supported by the parliamentary practice and procedures established in the Wisconsin State Senate, the Chair rules that the point of order raised by Senator Bablitch on March 1, 1979, is not well taken. The Chair further rules that I, as Lieutenant Governor of the State of Wisconsin, was properly and lawfully presiding officer of the Wisconsin State Senate on February 27, 1979, and that I was procedurally empowered to cast the tie breaking vote on the question of indefinite postponement of Senate Bill 5. Accordingly, the Journal of the Senate for February 27, 1979, reflecting the results of that vote, is hereby declared true and correct.
Senator Bablitch appealed the ruling of the chair and, with unanimous consent, the appeal was laid on the table.
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Senate Journal of May 9, 1973 .......... Page: 990
[Point of order:]
The question was: Adoption of senate amendment 17 to Assembly Bill 225?
Senator McKenna moved rejection.
The ayes and noes were demanded and the vote was: [Display of roll call vote omitted; ayes-16, noes-16.] Motion did not prevail.
423 Senator Lorge moved that the Lieutenant Governor be directed to return to the chambers and preside over the senate to break the tie vote on senate amendment 17.
Senator Risser raised the point of order that the motion was not a proper motion.
Senate Journal of May 9, 1973 .......... Page: 993
[Ruling of the chair:]
As it relates to the point of order raised on the motion to direct the Lieutenant Governor to return to the senate chamber, the chair [Lt.Gov. Schreiber] ruled the point of order was well taken and the motion was not a proper motion.
Local or private law bills (single subject rule)
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Senate Journal of April 25, 1989 .......... Page: 184
[Point of order:]
Senator Adelman raised the point of order that Senate Bill 65 [relating to the authority of a metropolitan sewerage district established by a 1st class city to recover capital costs and to expand its boundaries] is not properly before the Senate.
Senator Adelman, with unanimous consent, asked that his point of order be withdrawn. Senator George objected. The Chair took the point of order under advisement.
Ruling of the chair [p. 188]:
Earlier today the senator from the 28th, Senator Adelman, raised the point of order that Senate Bill 65 was not properly before the senate because it is a local law relating to the 33rd senate district which is vacant at this time and that Senate Rules 7 and 8, "order and decorum", required the district to be represented. The Chair took the point of order under advisement. The Chair has closely reviewed Senate Rules 7 and 8 and finds no language that requires a senate district to be represented when issues relating to that district are being considered for action by the senate.
Therefore, it is the opinion of the Chair that the point of order is not well taken.
Senator Fred A. Risser
President of the Senate
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Senate Journal of July 15, 1986 .......... Page: 952
[Point of order:]
Senator Cullen raised the point of order that senate amendment 1 [to Senate Bill 2, July 1986 Spec. Sess., relating to making an addition to and improvement
upon the state trunk highway system connecting I-90 and USH-51 over Avalon road in Rock county, including construction of an interchange, and making an appropriation] was not germane.
424 [Note:] In Milwaukee Brewers Baseball Club v. Wisconsin Dept. of Health and Social Services, 130 Wis. 2d 79 (1986), the Wisconsin supreme court reexamined the meaning of "special or private laws" under Wis.Const. IV-31.
Considered a part of the state trunk highway system, the I-road interchange at Avalon road near Janesville in Rock county had already been authorized in the budget, 1985 WisAct 29. To remove any doubt attached to that general-law authorization by the Brewers case, the July 1986 special session had before it the present bill, drafted under Wis.Const. IV-18 as a "local" bill, limited to "one subject" with that subject "expressed in the title".
S.Amdt.1, attempting to add to the bill a stretch of highway in Grant county, was a clear violation of the single subject rule for local bills, and was also beyond the purpose stated by the governor in calling the July 1986 special session.
The chair [Pres. Risser] ruled the point of order well taken.
Messaging bill to other house or to governor
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Assembly Journal of March 20, 1986 .......... Page: 936-39
[Action when reconsideration of passage or concurrence fails:]
The question was: Shall the vote by which senate amendment 1 to assembly amendment 6 to Senate Joint Resolution 1 [relating to authorizing the creation of a Wisconsin state lottery (first consideration)] was nonconcurred in be reconsidered? The roll was taken. [Display of roll call vote omitted; ayes-0, noes-99.] Motion failed.
The question was: Shall the vote by which senate amendment 2 to assembly amendment 6 to Senate Joint Resolution 1 was concurred in be reconsidered? Motion failed.
Representative Becker asked unanimous consent that the rules be suspended and that Senate Joint Resolution 1 be immediately messaged to the senate. Representative Schneider objected.
Representative Becker moved that the rules be suspended and that Senate Joint Resolution 1 be immediately messaged to the senate.
The question was: Shall the rules be suspended and Senate Joint Resolution 1 be immediately messaged to the senate? The roll was taken. [Display of roll call vote omitted; ayes-62, noes-36.] Motion failed (less than 2/3).
Point of order:
Representative Shoemaker rose to the point of order that Senate Joint Resolution 1 should be immediately messaged to the senate under Assembly Rule 50.
[Note:] A.Rule 50 requires immediate transmission to the senate, for each assembly "proposal which passes after a 3rd reading, and each senate proposal adversely disposed of by the assembly, .... after any motion to reconsider such passage or adverse disposition has failed or the time for making such motion has expired, together with a certified report of the assembly's action".
425 Ruling on the point of order:
The speaker [Loftus] ruled the point of order well taken because the reconsideration motions on Senate Joint Resolution 1 had failed.
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Assembly Journal of March 20, 1980 .......... Page: 2953
[Background:] Representative Johnson moved that Assembly Bill 1241 [relating to vacancies in nominations of candidates for certain offices] be immediately messaged to the governor.
Point of order:
Representative Shabaz rose to the point of order that the motion was improper.
The speaker [Jackamonis] ruled the point of order not well taken because nothing in the rules prevented such a motion.
Point of order:
Representative Shabaz rose to the point of order that there was no order of business that provided for messaging bills to the governor. The speaker took the point of order under advisement.
Assembly Journal of March 20, 1980 .......... Page: 2956
The speaker [Jackamonis] ruled not well taken the point of order raised by Representative Shabaz.
Point of order:
Representative Shabaz rose to the point of order that Joint Rule 34 and Enrolled Joint Resolution 1 required the "chief clerk" to present bills to the governor but this motion would allow the "assembly" to present the bill to the governor; therefore, the motion required a suspension of the rules.
The speaker [Jackamonis] ruled that the motion was proper and did not require a suspension of the rules.
Motions: maker's right to withdraw
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Senate Journal of March 22, 1988 .......... Page: 748
[Point of order:]
426 Senator Risser raised the point of order that senate substitute amendment 1 [to Senate Bill 351, relating to emergency detention, involuntary civil commitment, guardianship, protective services, transfer and discharge of involuntarily committed persons, recommitment evaluations, incompetency to refuse medication, emergency protective placement, training in emergency detention and emergency protective placement procedures for law enforcement officers, a presumption of good faith of individuals initiating emergency detentions, codifying a standard of performance for guardians of the
person, requiring health insurance coverage of services provided under a court order, requiring the department of health and social services to study the implementation of crisis intervention services, other mental health requirements and granting rule-making authority] is not germane.
Senator Engeleiter asked unanimous consent that senate substitute amendment 1 be returned to the author. Senator Risser objected. The chair took the point of order under advisement.
Senate Journal of March 23, 1988 .......... Page: 775
Ruling of the chair:
On Tuesday, March 22, 1988, the Senator from the 26th, Senator Risser raised the point of order that senate substitute amendment 1 to Senate Bill 351 was not germane. The chair took the point of order under advisement.
Senate Bill 351 is a comprehensive bill relating to mental health commitment standards and processes, and alternatives thereto. The bill sets standards for commitment, amends current law relating to guardianship and court-ordered protective services, emergency detention, training in emergency procedures, crisis intervention services and coverage of court-ordered services under medical plans.
Senate substitute amendment 1 relates solely to commitment and emergency detention of persons based on specific circumstances. The substitute amendment eliminates many of the provisions of the original bill.
