The Chair ruled the point of order well taken and stated that only the Joint Committee on Finance could have jurisdiction over legislation referred to the Joint Committee. The ruling of the Chair was appealed, and on a vote of 8 ayes and 23 noes, the ruling was not held as the judgement of the Senate. From that time forward, it has been the determination of this Senate that Senate Rule 20(4)(b) grants authority to the Senate Finance Committee to act on proposals referred to the Joint Committee on Finance.
The Senate Rules were amended by 1975 Senate Resolution 21. The resolution had bipartisan authors and a relating clause of "relating to senate committee procedures." The rule change was a direct result of the rulings of the Chair in the previous session.
It should be noted that the Joint Committee on Finance in the early 70's consisted of 9 members of the Assembly and 5 Senators. The split party control and the disproportionate representation of the Senate on the Joint Committee were a major reason for the actions taken by the Senate Finance Committee.
It is interesting to note that in the 75 Session, democrats controlled both houses of the legislature, yet the Senate, with strong bipartisan support, wanted to make it very clear, in the rules, that the Senate Finance Committee had jurisdiction and the authority to report proposals that had been referred to the Joint Committee on Finance, without restriction.
The statutes require no special action other than to include in their report to the house a recommendation that a proposal be passed and that a statement be made to the effect that they are emergency bills. It is clear that the Senate Finance Committee has the authority to report a proposal to the full Senate. The Committee has the same resources available to it as does the Joint Committee to determine the fiscal impact of proposals, and is clearly in a position to fulfill the requirements set forth in ss. 16.47(2).
The intent of the Senate Rule 20(4)(b) is clear in that it was adopted to allow the Senate to take action on any proposal that the Joint Committee on Finance has failed to report. It is also clear to the Chair that it was the intent and purpose of the Senate in the early 70's to grant full authority to act to the Senate Finance Committee. Furthermore, as stated by a previous presiding officer, to not allow the Senate Finance Committee to act would grant the authority to the Assembly Co-Chair, the authority to block the independent operation of the Senate.
In addition, as supported by case history, parliamentary manuals and as demonstrated by the ruling by the Speaker in the Assembly, the Senate has the authority to determine its own rules of procedure, even if they conflict with an existing statute, as long as they don't conflict with the Constitution or infringe on the rights of individual members.
Mason's Manual of Legislative Procedure states in section 3, paragraph 2:
The house and senate may pass an internal operating rule for its own procedure that is in conflict with a statute formerly adopted.
In Section 2, paragraph 3, Mason's also states:
Rules of procedure fulfill another purpose in protecting the rights of members. Individual members, for example, are entitled to receive notices of meetings and the opportunity to attend and participate in the deliberations of the group. Minorities often require protection for unfair treatment on the part of the majority, and even the majority is entitled to protection from obstructive tactics on the part of minorities.
I am reminded of a quote from Cushing's Legislative Assemblies, "Elements of the Law and Practice of Legislative Assemblies in the United States of America:
The great purpose of all rules and forms, says Cushing, is to subserve the will of the assembly rather than to restrain it; to facilitate and not to obstruct the expression of its deliberate sense.
Clearly the Senate has the authority, through its adopted rules, to authorize a committee to report a proposal in the same manner prescribed by law for a Joint Committee.
Therefore, it is the opinion of the Chair, that Senate Rule 20(4)(b) grants to the Senate Finance Committee the full authority of the Joint Finance Committee as it relates to the reporting of proposals referred by the Senate, to include the recommending of passage of a proposal with emergency statement attached.
The Chair rules the point not well taken.
Senator Welch appeals the ruling of the Chair.
The question was: Shall the decision of the Chair stand as the judgement of the Senate?
The roll was taken. The vote was: Ayes-18, Noes-15. Decision of the Chair stands as the judgement of the Senate.
[Note:] Senate Rule 20 (4) (a) The members of the senate committee on finance are the senate members of the joint committee on finance.
(b) When the joint committee on finance fails to report a proposal referred to it by the senate, the proposal may be returned to the senate by the senate committee on finance.
Senate Journal of July 3, 2002 .......... Page: 767
Point of order:
Report of committee of conference on 2002 January Special Session Assembly Bill 1.
Motion to refer report to the Committee of Conference offered Senator Shibilski.
Ruling on the point of order:
Chair ruled the motion not in order.
Point of order:
Senator Shibilski raised the point of order that the motion to refer the report to the Committee of Conference is in order.
Ruling on the point of order:
Chair ruled the point of order not well taken.
Senator Shibilski appealed the ruling of the Chair.
The question was: Shall the Decision of the chair stand as the judgement of the Senate?
The roll was taken. The vote was: Ayes-18, Noes-15. Decision of the Chair stands as the judgement of the senate.
[Note:] Senate Rule 41 (2) was later amended to provide: Reference to committee is not in order after a proposal is passed or indefinitely postponed or finally disposed of by any action equivalent thereto. Questions of reconsideration, concurrence in amendments of the assembly, conference committee reports, or executive vetoes may be placed on the table, but may not be referred to committee.
There is also an assembly rule on this point: "Assembly Rule 45 (6) Except as incidental to calendar scheduling by the committee on rules, the report of a committee of conference may not be referred to committee." The senate does not have such a rule but the joint rules provide a reason why a conference committee report should not be referred to committee: "Joint Rule 3 (3) A report of a committee of conference may not be amended and may not be divided."
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Assembly Journal of June 29, 1999 .......... Page: 250
Point of order:
Representative Foti rose to the point of order that Assembly amendment 1 to Assembly Substitute Amendment 1 to Assembly Bill 133 was not properly before the Assembly because there was no report on the amendment from the Joint Survey Committee on Retirement Systems under 13.50(6)(b), Wisconsin Statutes.
Speaker Pro Tempore Freese ruled the point of order well taken.
[Note:] 13.50(6)(b) No bill or amendment thereto creating or modifying any system for the retirement of public employees shall be considered by either house until the written report required by par. (a) and the actuarial opinion ordered under par. (am), if any, have been submitted to the chief clerk. Each such bill or amendment shall then be referred to a standing committee of the house in which introduced. The report of the joint survey committee and actuarial opinion, if any, shall be printed as an appendix to the bill and attached thereto as are amendments.
Assembly Journal of June 29, 1999 .......... Page: 257
Point of order:
Representative Black rose to the point of order that Assembly amendment 25 to Assembly Amendment 2 to Assembly substitute amendment 1 Assembly Bill 133 was not germane under Assembly Rule 54 (3)(c) and (5).
The Chair (Representative Duff) ruled the point of order not well taken.
The Chair ruled as follows:
"Assembly amendment 25, which prohibited constitutional officers, except the governor, from having their likeness on an outdoor sign, sought to replace language in Assembly amendment 2 prohibiting constitutional officers, except the governor, from using state funds to place their likeness on a billboard.
Assembly amendment 25 is not a substantial expansion of Assembly amendment 2 because it amended and modified the same section, subject and related to the particularized details included in Assembly amendment 2. The amendment also did not substantially expand the scope of the original proposal, a multi-subject executive budget bill, because it merely adds to the directives and requirements to state agencies and constitutional officers that are typically included in budget bills."
Representative Meyer appealed the ruling of the Chair.
The question was: Shall the ruling of the Chair stand as the ruling of the Assembly?
The roll was taken. The vote was: Ayes-54, Noes-45. Motion carried.
[Note:] Assembly Rule 54 (3) Assembly amendments that are not germane include:
(e) An amendment that negates the effect of another assembly amendment previously adopted.
(5) An amendment to an amendment must be germane to both the amendment and the original proposal.
Assembly Journal of October 6, 1999 .......... Page: 383
Point of order:
Representative Hubler rose to the point of order that the committee of conference report on Assembly Bill 133 is divisible under Assembly Rule 80.
Speaker Pro Tempore Freese took the point of order under advisement.
Ruling on the point of order:
The Chair ruled not well taken the point of order raised by Representative Hubler that the committee of conference report on Assembly Bill 133 is divisible.
The complete text of the Chair follows:
"The Lady from the 75th had raised a Point Of Order that didn't basically agree with the Chair declaring her motion to divide the Conference Committee Report. She raised a Point Of Order that the Conference Committee Report could be divided, as I understood it, into Sections 1, 2, and 3. I believe her original motion was to divide it into Item 3.
The Chair has spent some time trying to work through this particular Point Of Order to make sure because I am sure that the Lady will ask that it become precedent in the rulings of the Chair. So the Chair has taken some time looking at Assembly Rules, Joint Rules, Senate Rules, Mason's Manual and Jefferson's Manual to try to resolve this issue. The Lady from the 75th and the Gentleman from the 44th make the Point Of Order that we can divide it into different components based on Assembly Rule 80(4).
Assembly Rule 80(4) lists what is not divisible and because the Report On Committees doesn't happen to show up there it is the belief, I believe, of the Lady from the 75th and the Gentleman from the 44th that because it is merely not stated there, that it is divisible. One has to, I believe, look at Assembly Rule 80(1), which is "any member may request a division of simple amendments and motions involving distinct and independent propositions or concurrent action if they are severable without being rewritten or restated and the question shall be divided if each separate proposition or action to be voted on is complete and proper, regardless of the action taken on the other portions of the original question."
So the Chair looked, taking the advice that the Lady from the 75th and the Gentleman from the 44th were telling the Chair that this is a Report on the Committee On Conference. It is not an amendment, they report, because it is not specifically talked about in Assembly Rule 80(4). Therefore, it is divisible. It is the Chair's opinion, that under Assembly Rule 80(1), which governs what is divisible, this simply is not an amendment. It is not a simple amendment. Actually, if we were even to take conference amendment l, which is an amendment to the Assembly Substitute Amendment, I think members can easily see that this is just not a simple amendment. It is rather complex. It's actually a little longer than Gone With the Wind, and has quite a bit more intrigue in it, I think.
So, it is clearly, to the Chair, not a division of a simple amendment because as the Lady from the 75th and Gentleman from the 44th pointed out in their Points Of Order, that it was a report that should be divided based on the fact that it didn't show up in 80(4).
Then the Chair went one step further just to have a little more comfort because if it were an amendment, could this amendment be divided and taken up in three different components? It is the Chair's belief that under Assembly Rule 80(1), that each question if they were divided, Question l., Question 2 and Question 3 and were separate propositions or actions to be voted on, would be complete and proper regardless of the action taken on the others. And it is this Chair's opinion that they would not be, as the Chair was asking during the point of order that was being raised if Section l were adopted and Section 2 and Section 3 were not, could the bill stand on its own? The Chair's belief is, no it could not. If Section 2 were adopted but not Sections 1 and 3 the same situation. Or, if only Section 3 were adopted without negating the actions taken by the Senate and Assembly, could it stand on its own? It is the Chair's belief that it could not.
But wanting to make sure because knowing the Lady from the 75th was going to be fairly persistent and the Gentleman from the 44th is a scholar of the rules, I wanted to make sure that I wasn't not reading this properly and when one looks at the Joint Rules, Joint Rule 3(3) "approval of the Conference Report by roll call vote in each house sufficient to constitute final passage of the proposal shall be final passage of the bill or Joint Resolution in the form and with the changes proposed by the report." And the Joint Rules really are silent on whether or not we can amend the Conference Report.
So the Chair looked at Senate Rules which are somewhat more obscure than ours and really not to the point, so the Chair looked at what other rules are available to us to determine and under Assembly Rule 91(1) "in the absence of pertinent Assembly or Joint Rules questions of parliamentary procedure shall be decided according to applicable rules of parliamentary practice and Jefferson's Manual which are not inconsistent with constitutional or statutory provisions relating to the functioning of the legislature."
So, upon reading about the statutory provisions, we did a search of the Wisconsin Statutes and Constitution to see if there is something that would apply there. Of course, that didn't help us. So the Chair then referred to Jefferson's Manual. And, if members want to take a look on page 47 in the section on Conferences on page 48 as well and the ending of this regarding conference committees "and each party reports in writing to its respective house the substance of what is said on both sides and entered into the Journal."
And that is the report we have before us. "This report can not be amended or altered as that of the committee may be." So, the backup for Assembly Rules and Joint Rules was Jefferson's Manual but also wanting to make sure that that is the established precedent, I looked to Mason's Manual which is the manual we often refer to as well and under Section 770 (2) it says "in voting in a conference committee, the committee of each house votes separately. The committee on conference from each house submits its report to the house from which it was appointed, "which we have. "The report upon being received may be treated like other reports except that the report of the conference committee is usually given higher precedence."
That's why we're here at l0:00 p.m. "Under no condition, including suspension of the rules may the house alter or amend the Report of the Committee, but must adopt or refuse to adopt the report in the form submitted."
So it is the opinion of the Chair that the Lady from the 75th's Point Of Order is not well taken based on those following reasons."
[Note:] Assembly Rule 80 (4) was later amended to provide: Bills, joint resolutions, resolutions, and substitute amendments, and amendments received from the senate for assembly concurrence, may not be divided. A bill vetoed in its entirety by the governor may not be divided. A report of a committee of conference may not be divided.
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Assembly Journal of September 29, 1997 .......... Page: 309
Point of order:
Representative Foti rose to the point of order that Assembly amendment 17 to Senate amendment 1 to Assembly Bill 100 was not germane under Assembly Rule 54 (3) (f).
Ruling on the point of order:
The Chair (Representative Duff) ruled the point of order well taken.
[Note:] Assembly Bill 100 was a budget bill. Senate amendment 1 was a 117 page multisubject amendment offered by leadership of both parties. Assembly amendment 17 created a grant program for the Southern Wisconsin helicopter unit.
Assembly Rule 54 (3) Assembly amendments that are not germane include:
(f) An amendment that substantially expands the scope of the proposal.
Assembly Journal of May 6, 1998 .......... Page: 873
Point of order:
Representative Klusman rose to the point of order that Assembly amendment 25 to Assembly substitute amendment 1 to Assembly Bill 768 was not properly before the Assembly under s. 13.50(6) of the Wisconsin Statutes.
Speaker Pro Tempore Freese took the point of order under advisement.
Assembly Journal of May 6, 1998 .......... Page: 877
Ruling on the point of order:
Speaker Pro Tempore Freese ruled well taken the point of order raised by Representative Klusman that Assembly amendment 25 to Assembly substitute amendment 1 to Assembly Bill 768 was not properly before the Assembly under s. 13.50(6) of the Wisconsin Statutes:
"I have reviewed Section 13.50(6)(b) which reads "No bill or amendment thereto creating or modifying any system for the retirement of public employes shall be considered by either house until the written report required by par. (a) has been submitted to the chief clerk. Each such bill shall then be referred to a standing committee in the house in which introduced. The report of the joint survey committee shall be printed as an appendix to the bill and attached thereto as are amendments."
In addition, I have reviewed the decision in State ex rel. Lafollette v. Stitt, 114 W (2d) 358, 338 NW (2d) 684 (1983), the previous rulings of the chair, Masons manual, and assembly rule books dating as far back as 1943. I also looked at the relevant Wisconsin Statutes, when they were created and their correlation to the rules of the Legislature. It appears to me, as it did in my previous ruling on Assembly bill 421 in January of this year, that the legislative intent behind the statues was to create a process that had to be followed and was not to be circumvented.
This ruling presents this institution with the same dilemma as the ruling on Assembly Bill 421. If these statues are merely rules that we can easily disregard, then long standing traditions and requirements that this institution has followed will no longer exist.
I believe, as I did earlier this year, that the previous legislatures first created statutes then 14 years later created the same as a rule because they wanted a process that would not allow for certain procedures to be bypassed. The Stitt decision merely supports the notion that it is for the Legislature to decide and enforce its own rules. We clearly have the authority to suspend our own rules with a 2/3 vote or by unanimous consent. It continues to be this chair's ruling that we do not have the authority to suspend the statutes when points of order are made. I believe the precedent that has been established by Speakers Jackamonis and Loftus, the current Chair and President Risser which occurred before and after the Stitt decision still stands.
