Assembly Journal of October 30, 2001 .......... Page: 491
Point of order:
Representative Black moved that the rules be suspended and that Assembly Bill 294 be withdrawn from the committee on Labor and Workforce Development and taken up at this time.
Ruling on the point of order:
Speaker Pro Tempore Freese ruled the motion dilatory under Assembly Rule 69.
[Note:] Assembly Rule 69. Dilatory motions.
Assembly Rule 69 (1) When it appears to the presiding officer that any motion or procedure is being used for the purpose of delay, the presiding officer shall declare it dilatory and out of order.
(2) Two consecutive identical motions are dilatory unless significant business has intervened between the motions.
(3) Two consecutive motions to adjourn are not be in order unless other significant business has intervened between the motions or unless no other business is pending before the assembly.
(4) While a motion remains undecided pending the presiding officer's ruling on a point of order taken under advisement, it is dilatory to enter a substantially similar motion on the same question, but it is proper to request an expansion of the question under advisement.
Division of question
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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.
Emergency statement (to pass appropriation bill before budget)
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Assembly Journal of March 13, 2001 .......... Page: 142
Point of order:
Representative Freese rose to the point of order that Senate Bill 1 was not properly before the Assembly under 16.47 of the Wisconsin Statutes.
Speaker Jensen took the point of order under advisement.
Assembly Journal of March 22, 2001 .......... Page: 171
Ruling on point of order:
Speaker Jensen ruled that the point of order, raised on Tuesday, March 13, by Representative Freese that Senate Bill 1 was not properly before the Assembly under 16.47 of the Wisconsin Statutes, was not timely.
[Note:] For a bill requiring an emergency statement, the point of order would be timely in conjunction with the vote on passage or concurrence.
16.47 (2) No bill containing an appropriation or increasing the cost of state government or decreasing state revenues in an annual amount exceeding $10,000 shall be passed by either house until the budget bill has passed both houses; except that the governor or the joint committee on finance may recommend such bills to the presiding officer of either house, in writing, for passage and the legislature may enact them, and except that the senate or assembly committee on organization may recommend to the presiding officer of its respective house any such bill not affecting state finances by more than $100,000 biennially. Such bills shall be accompanied by a statement to the effect that they are emergency bills recommended by the governor, the joint committee on finance, or the senate or assembly committee on organization. Such statement by the governor or joint committee on finance shall be sufficient to permit passage prior to the budget bill. Such statement by the senate or assembly committee on organization shall be effective only to permit passage by its respective house. For a bill requiring referral to the joint finance 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.
Assembly Journal of March 22, 2001 .......... Page: 171
Point of order:
Representative Freese rose to the point of order that Senate Bill 1 was not properly before the Assembly under 16.47 of the Wisconsin Statutes.
Speaker Jensen took the point of order under advisement.
[Note:] No ruling. The bill had a fiscal estimate of approximately $2 million but did not have an emergency statement. For a bill requiring an emergency statement, the point of order would be timely in conjunction with the vote on passage or concurrence.
16.47 (2) No bill containing an appropriation or increasing the cost of state government or decreasing state revenues in an annual amount exceeding $10,000 shall be passed by either house until the budget bill has passed both houses; except that the governor or the joint committee on finance may recommend such bills to the presiding officer of either house, in writing, for passage and the legislature may enact them, and except that the senate or assembly committee on organization may recommend to the presiding officer of its respective house any such bill not affecting state finances by more than $100,000 biennially. Such bills shall be accompanied by a statement to the effect that they are emergency bills recommended by the governor, the joint committee on finance, or the senate or assembly committee on organization. Such statement by the governor or joint committee on finance shall be sufficient to permit passage prior to the budget bill. Such statement by the senate or assembly committee on organization shall be effective only to permit passage by its respective house.
2 0 0 1 S E N A T E
Senate Journal of February 13, 2001 .......... Page: 72
Point of order:
Senator Welch raised the point of order that Senate Bill 1 requires an Emergency Statement and is not properly before the Senate.
Ruling on the point of order:
Senate Bill 1 was referred to the Joint Committee on Finance on January 25, 2001. The Senate Co-Chair of the Joint Committee has attempted to schedule a meeting; however, the Assembly Co-Chair has refused to concur with a meeting schedule.
There are two issues involved prior to consideration of Senate Bill 1 by the full Senate:
1. The first is the requirement for an "emergency statement" as required by ss. 16.47(2).
2. The authority of the Senate Committee on Finance to report the proposal to the Senate when the proposal was referred to the Joint Committee on Finance by the Senate.
Section 16.47(2) of the statutes requires that prior to passage of the biennial budget bill, any proposal which impacts state finances by an amount exceeding $10,000 requires an emergency statement before either house of the legislature may take a vote on final passage of the proposal.
The fiscal impact information provided by the Legislative Fiscal Bureau indicates a cost of $16 Million in fiscal year 2001-02 and approximately $106 million in fiscal year 2002-03. Clearly, in accordance with ss 16.47(2), the bill requires an emergency statement.
A brief history of the "emergency statement" requirement is in order at this time. The concept was developed as the result of one of the first Legislative Council Study Committees on the Budgetary Procedure. The Legislative Council by its resolution establishing the subcommittee advised that the subcommittee "consider the feasibility of including all appropriations in a single bill". The report of the subcommittee stated: "Studies bring out an alarming trend of the large number of separately enacted appropriation bills, including the executive budget bill. The last three sessions show 84 bills in the 1943, 85 bills in 1945 and 110 bills in 1947." The subcommittee also stated: "It is often questionable whether or not all the members of the legislature have a clear picture of the financial condition of the state. Nor do they know whether or not the appropriation bills being acted upon fit into a sound pattern for the state's financial welfare."
The subcommittee reviewed a recommendation of a prior committee on the budget, chaired by the late Senator Melvin R. Laird Sr. That recommendation was to employee 5 budget assistants to advise the legislature on fiscal policy. Senator Laird was quoted as saying: "Budgetary systems are concerned with the coordination of public finances into financial plans. It is apparent that with technical assistance given, the budget can be evaluated and considered in a better legislative light."
The Legislative Council Subcommittee recommended the adoption of a proposal that would accomplish the goal of informing the members of the legislature on fiscal matters and provide for speedy and effective consideration of appropriation bills.
Assembly Bill 11 was introduced into the 1949 Legislative Session, relating to a state fiscal policy and appropriation procedures. The bill as originally introduced clearly restricted the legislature's ability to act on appropriation bills. One provision of the proposal read as follows: "No appropriation bill shall be passed by either house until the executive budget bill has passed both houses; except that the governor may recommend the enactment of an emergency executive budget bill which shall continue in effect only until the executive bill becomes effective or until the next succeeding July 1, whichever is later. There was additional language in the bill to provide for the Joint Committee on Finance to report and propose a Joint Resolution on the fiscal condition, and a requirement that appropriation bills provide a source of revenue, this last provision did not become law.
The proposal recommended by the Legislative Council was viewed by the media as; "suggestions which should make future budget requests considerably more honest". (State Journal "Under the Dome" by Sanford Goltz, date unknown)
The legislature recognized the problem with an outright restriction on its ability to pass appropriation bills prior to passage of the budget bill. Early in the 1951 session the 1949 law was modified to remove the outright restriction on the passage of appropriation bills prior to the budget bill and allow for the passage of any appropriation bill that was recommended for passage by the Joint Committee on Finance. There was no requirement of an emergency statement until 1957 when the language was amended to provide for the "emergency statement" procedure, as we know it today.
Therefore, of the original purposes outlined by the Legislative Council for restricting the consideration of appropriation bills prior to the passage of the budget, only the education of members and the heightened awareness of the fiscal impact survived. The first law enacted was an outright prohibition on the consideration of such bills prior to passage of the budget. This was repealed after only one session. The language in force today clearly is to heighten the awareness of the membership and the public that the proposal has a definite fiscal impact that may not be part of the biennial budget bill.
The authority of the Assembly to act without an emergency statement arose in a point of order raised in 1995 on Assembly 73, in which the question was raised as to the authority of the Assembly to withdraw a proposal from the Joint Committee on Finance when an emergency statement was required. The motion was to suspend the rules to withdraw AB 73 and take it up immediately. The Speaker, Representative Prosser, ruled that since the motion was to suspend the rules, the motion was valid. This clearly demonstrates that Speaker Prosser believed that one house of the legislature could act on a proposal requiring an emergency statement by suspending the rules, therefore giving credence to the authority of each house to determine its own rules of procedure.
I have found numerous occasions where a proposal has been passed by one house or the other without the required emergency statement.
The failure of the legislature to follow the procedures outlined in ss 16.47(2) does not invalidate the act. I will not quote from the various case history and parliamentary manuals on this subject as I believe it is widely understood that the Constitution grants the authority to each house of the legislature to determine its own rules of procedure and that the legislature may not bind or restrict itself or its successors as to the procedure to be followed in the passage of legislation.
The statutes are silent as it relates to the authority of the Senate Finance Committee to issue an emergency statement.
To determine what authority the Senate Finance Committee has relating to emergency statements, one needs to understand the purpose of the statements. Clearly, since 1957, when the concept of the emergency statement was placed in our statutes, its sole purpose was to make certain that the members of the legislature and the public were aware that a proposal was going to have significant impact on state finances. The law does not require any other special action to be taken other than to provide notice to an "emergency". From the history of this section of the statutes, it appears that the term "emergency" was taken from the original bill of 1949, which gave authority to the Governor to propose an "emergency" executive budget bill. There is no definition as to what constitutes an "emergency". The 1951 act only gave an exemption to the prohibition on the passage of appropriation bills, if the Joint Committee on Finance recommended the bills for passage.
The history of the Senate Committee on Finance indicates that under Senate Rule 20(4)(b), the Senate Committee on Finance has the authority to report any proposal to the Senate that the Joint Committee fails to.
The Senate Finance Committee has on occasion taken action to report proposals to the Senate. It is well established that the Senate Finance Committee has the authority to act when the Joint Committee on Finance fails to do so, for whatever reason.
On October 17, 1973, Senator Hollander raised the point of order that the Senate Finance Committee has full control over Senate proposals. The Chair ruled that the Senate Committee on Finance has full jurisdiction over bills and joint resolutions under the control of the Senate, which are referred to the Joint Committee on Finance. The Chair furthers stated: "To rule otherwise would allow the Assembly members of the Joint Committee on Finance to control the independent operation of the Senate and would violate the basic concept of bicameralism".
This Presiding Officer, while serving as Minority Leader of this Senate, raised a point of order on October 25, 1973, questioning the authority of the Senate Finance Committee to report a proposal to the Senate that had been referred to the Joint Committee on Finance.
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.
