9/26/2016
Strong States, Strong Nation
TOP 10 LEGAL
PRINCIPLES
LEGISLATIVE STAFF
SHOULD KNOW
AND BE ABLE TO EXPLAIN
1.
Wisconsin Constitution
SEPARATION OF POWERS
Wisconsin Constitution
The executive power shall be vested in a governor… [Art. V, sec. 1.]
The governor shall… have power to convene the legislature on
extraordinary occasions, and in case of invasion, or danger from the
prevalence of contagious disease at the seat of government, he may convene
them at any other suitable place within the state. He shall communicate to the
legislature, at every session, the condition of the state, and recommend such
matters to them for their consideration as he may deem expedient. He shall
transact all necessary business with the officers of the government, civil and
military. He shall expedite all such measures as may be resolved upon by the
legislature, and shall take care that the laws be faithfully executed. [Art. V,
sec. 4.]

The legislative power shall be vested in the
senate and assembly. [Art. IV, sec. 1.]


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Wisconsin Constitution
The judicial power of this state shall be vested in a unified court
system consisting of one supreme court, a court of appeals, a circuit
court, and such trial courts of general uniform statewide jurisdiction as
the Legislature may create by law, and a municipal court if authorized
by the legislature….
 The supreme court shall have superintending and administrative
authority over all courts. [Art. VII, secs. 2 and 3 (1).]

Colorado Constitution
The powers of the government of this state are divided
into three distinct departments,--the legislative, executive
and judicial; and no person or collection of persons
charged with the exercise of powers properly belonging
to one of these departments shall exercise any power
properly belonging to either of the others, except as in
this constitution expressly directed or permitted. [Art.
III.]

Implicit vs Explicit


In Wisconsin, the separation of powers is implicit
in that governmental powers are divided among the
legislative, executive, and judicial branches.
In states like Colorado, the separation is explicit.
Core Zone of Exclusive Authority

Each branch has a core zone of exclusive
authority into which the other branches may
not intrude.
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However…
“The separation of powers doctrine was never intended to be strict
and absolute. Rather, the doctrine envisions a system of separate
branches sharing many powers while jealously guarding certain others,
a system of “separateness but interdependence, autonomy but
reciprocity.” …The undue burden or substantial interference must be
proven beyond a reasonable doubt….”
[State ex rel. Friedrich v. Circuit Court for Dane County, 531 N.W.2d
at 36-40; footnotes and citations omitted.]
Wisconsin Test


Wisconsin Test
Wisconsin Test
“If the subject matter of the statute is within the judiciary’s
constitutional powers but not within powers constitutionally granted to
either the legislature or executive branch, the subject matter is within
the judiciary’s core zone of exclusive power. Any exercise of power
by the legislature or executive branch within such an area is an
unconstitutional violation of the separation of powers doctrine. The
judiciary may recognize such an exercise of power but only as a matter
of comity and courtesy, not as an acknowledgement of power.”

If a statute is found, beyond a reasonable doubt, to
be under the exclusive jurisdiction of a branch or to
be a power that is shared by more than one branch
but that unduly burdens or substantially interferes
with the other branch, the statute is
unconstitutional.
If a statute is found to be a shared power but is not found to
unduly burden or substantially interfere with the other
branch, the statute is not unconstitutional.
 In Wisconsin, if a statute is a shared power between the
legislative and judicial branches, the judiciary may overturn
the legislative action through future amendments.
[See State v. Horn, 226 Wis. 2d 637, 644-645 (1999); citations
omitted.]

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Best Practices
Review the separation of powers page on NCSL’s website:
http://www.ncsl.org/research/about-state-legislatures/separation-ofpowers-an-overview.aspx

2.
FEDERAL PREEMPTION OF STATE LAWS
 When drafting anything that affects court procedure or delegates
authority to the executive branch, think about the risks of violating the
Separation of Powers clause.
Advise bill sponsors of the risks of a separation of powers
challenge.

Enumerated Powers
Enumerated Powers – Art. I, Sec. 8




Regulate interstate commerce
Establish rules of naturalization
Establish rules for bankruptcy
Coin money and punish counterfeiting
Enumerated Powers
Enumerated Powers - Art. I, Sec. 8
Make all laws that are “necessary and proper for
carrying into execution” the powers granted to
the federal government in the US constitution
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Limits on States
Limits on States – Art. I, Sec. 10




No treaties
No bills of attainder
No ex post facto laws
No laws impairing contracts
Federal Law
Federal law includes:




U.S. constitution
federal statutes
federal agency regulations
federal common law
Art. VI (2)
Supremacy of constitution, treaties and
laws. This constitution, and the laws of the United
States … shall be the supreme law of the
land…anything in the constitution or laws of any
state to the contrary notwithstanding.
Tenth Amendment
Tenth Amendment
Reserved powers. The powers not delegated to the
United States by the constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to
the people.
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Express and Implied Preemption
Express Preemption
May include a savings clause for certain related state statutes
Implied Preemption
Presumption against preemption in areas of traditional state
jurisdiction - maybe
Field Preemption
Field Preemption
3-Part Test:
1.
2.
3.
Pervasiveness of federal law
Need for national conformity
Danger of a conflict
Conflict Preemption
Conflict Preemption
2 Types:
1.
2.
Physically impossible to comply with both
federal and state laws
State law creates an obstacle to purpose of
federal law
State Law
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Anti-preemption Options
Anti-preemption Options
 Ask

for a federal waiver
Include a severability clause
 Ask
Congress to change the federal law
Best Practices
Best Practices:


Be prepared – know the likely areas for
preemption in the subjects you draft in
Discuss possible preemption with the bill
sponsor
Best Practices
Best Practices:
Review the NCSL webinar: “Federal and State
Pre-emption Basics: What Every Drafter
Ought to Know,” Erin Smith, TX (7/12/16)
Best Practices
Best Practices:
If might be preempted, offer alternatives:



direct executive agency to seek waiver;
include severability clause;
draft request for Congress to reconsider
federal statute
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3.
PLENARY POWER

Definition of “plenary”—
 “Full, complete, entire….”
[Black’s Law Dictionary, 7th Ed.]
Wisconsin
“In reviewing an act of the legislature the duties of the court are
limited to considering whether or not the act of the legislature
contravenes the provisions of the constitution. The duty of the court to
do this arises from the fact that the constitution is the supreme law of
the state. If the legislature passes an act which is in contravention of
the constitution, and a citizen asserts a right under the constitution
denied him by the act of the legislature, of necessity the court must
determine which controls, — the constitution or the act of the
legislature.”
[Heimerl v. Ozaukee County, 40 N.W.2d 564 (Wis. 1949).]
Wisconsin
“Our legislature has plenary power except where forbidden to
act by the Wisconsin Constitution. Such general police power
is in sharp contrast to that exercised by Congress, which has
only those powers specifically provided by the United States
Constitution: ‘[I]t is competent for the legislature to exercise
all legislative power not forbidden by the constitution or
delegated to the general government, or prohibited by the
constitution of the United States.’”
[Libertarian Party v. State, 546 N.W.2d 424 (Wis.1996),
citing Bushnell v. Beloit, 10 Wis. 155, 168-69 (1860).]
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Colorado
“. . . when the people by their constitution created [the
General Assembly], and declared that the legislative
power should be vested therein, they conferred the full
and complete power as it existed and rested in
themselves, subject only to the restraints and limitations
of their own constitution and the constitution of the
United States.”
[People ex rel. Tucker v. Rucker, 5 Colo. 455 (1880).]
Colorado
“It is undisputed that the power to legislate granted to the
General Assembly by article V, section 1 of the Colorado
Constitution permits the General Assembly to define the
operation of grants of governmental authority articulated
by the constitution,…and that the power of the General
Assembly over appropriations is absolute.”
[Colorado General Assembly v. Lamm, 700 P.2d 508
(Colo. 1985).]
It’s a starting point…



Presumption of constitutionality
General police powers
Presumption that appropriation serves a public
purpose
What about the other branches?


The executive branch must carry out the statutes as
enacted by the legislature.
The judicial branch is constrained by the cases
before it and by jurisdictional limits.
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Best Practices


When a legislator asks about the constitutionality of
a bill or statute, always start with the presumption
that, based on the legislature’s plenary power, it is
constitutional.
Know your state’s constraints on the Legislature.
Amendments to the U.S. Constitution
4.
STATE PREEMPTION OF LOCAL LAWS
Dillon’s Law
Strong States, Strong Nation
Amendments to the U.S. Constitution
Article X.
Reserved powers. The powers not delegated to the United
States by the constitution, nor prohibited by it to the states,
are reserved to the states respectively, or to the people.
Dillon’s Law:
 Local government has only the
powers explicitly granted;
 Powers incident to the explicit
powers; and
 Powers indispensable to
government’s declared objects and
purpose
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Home Rule
Strong States, Strong Nation
Any doubt as to power of a
local government resolved
in favor of the state.
Home Rule
Constitutional or Statutory
 Powers granted in local government’s
organic charter
 Varies from state to state

Home Rule
Home Rule – power to legislate
in matters of local concern
CO: Art. XX, sec. 6: … grant the full right of self-government in both local and
municipal matters …
WI: Art. XI, sec. 3 (1): ...determine their local affairs and government…
OH: Art. XVIII sec. 3: …exercise all powers of local self-government and to
adopt and enforce within their limits … local police, sanitary and other similar
regulations …
Who’s
In
Charge?
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Three Types of Laws
3 types of laws:
Matters of Statewide Concern
Court decides
Court decides what type of law it is:
 State law trumps local ordinance
Matters of Local Concern

Varies state-to-state

Decided case-by-case, considering totality of
circumstances

Usually there’s overlap

Will consider legislative declaration
 Local ordinance trumps state law
Matters of Mixed Statewide and Local Concern
 State law trumps local ordinance
Colorado

Colorado – Balance interests:





Need for statewide uniformity
Impact of measure on persons outside of local government
Whether historically state or local
Whether constitution specifies state or local
Whether need for governmental cooperation to facilitate
laws in the subject
Wisconsin

Wisconsin – Extent of Preemption:




Legislature expressly prohibits local action;
Local government’s action conflicts with state law;
Local government’s action defeats purpose of state law;
Local government’s action is contrary to spirit of state law
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Best Practices
Best Practices
Review the NCSL webinar: “Federal and State Preemption Basics: What Every Drafter Ought to
Know,” Erin Smith, Legislative Counsel, Texas
Legislative Council (7/12/16)


Know whether your state is a Dillon’s Law state or a
Home Rule state – or some combination
Review your state’s constitutional and statutory
provisions regarding home rule
Best Practices
5.
RULE-MAKING AUTHORITY
Discuss with your bill sponsor:




Declaration explaining why matter is of statewide
concern?
Specific state preemption?
Narrow exceptions to preemption?
Grandfather clause for existing local ordinances?
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Sources of Authority

Each agency may promulgate rules interpreting the
provisions of any statute enforced or administered
by the agency, if the agency considers it necessary
to effectuate the purpose of the statute, but a rule is
not valid if the rule exceeds the bounds of correct
interpretation. [s. 227.11 (2) (a), Wis. Stats.]
Sources of Authority

Authority
The Wisconsin Supreme Court has held that an
agency “may not substitute its own policy for that of
the legislature.”
[See Niagara of Wisconsin Paper Co. v. DNR, 84
Wis. 2d 32, 48, 268 N.W.2d 153 (1978).]
Legislation may require an agency to promulgate
administrative rules and may specify what an
agency may not include in its administrative rules.
Granting Rule-Making Authority



To mandate rule making.
To confer on the agency some discretionary
authority beyond the mere interpretation of
statutory language.
To establish the conditions under which the agency
may promulgate rules.
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Granting Rule-Making Authority

Why use rule making?
Technical or scientific knowledge required.
 To fill in the details or processes (e.g., licensing
requirements).
 To allow for adoption of procedures or consideration of
details that an agency is in a better position to do.
 To specify something, such as a fee or a season, that an
agency and the Legislature may want to have modified over
time.
Best Practices




Consider rule making when the Legislature does not
have the expertise or the technical knowledge to write a
thorough statute.
Give an agency a specific time frame for submitting the
rules for promulgation.
Be specific about what the agency should include in the
rules if the bill sponsor has specific expectations.
Best Practices

When drafting a rule making provision, think about
distinguishing between establishing policy and
carrying out policy.
6.
ENFORCING STATUTES - STANDING
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Enforcing Statutes

Enforcing Statutes
What happens if someone violates this statute?

Criminal penalty?

Civil fine?

State Attorney General enforces through civil
suit?
Standing
Does the person have standing to bring a
lawsuit?
Can a person sue to enforce this statute?
Right of Action
Does the statute imply a private right of
action?
 Actual injury
 To a legally protected interest
In other words – does the statute create
a legally protected interest for the person?
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Three Questions
1. Is the person within the group of persons who are intended
to benefit from the statute?
2. Did the legislature intend to create a private right of action,
even if it’s only implied?
3. Is an implied private right of action consistent with the
purposes of the legislative scheme?
Best Practices

Review your state's tests for establishing standing and
a private right of action to enforce a statute

Understand taxpayer standing as applied in your state
Taxpayer Standing
Taxpayer has a legally protected interest in ensuring the
government follows the constitution, which is harmed if
the government fails to follow the constitution
Not available in federal court; check your state for
application
Best Practices




Ask your bill sponsor
If she wants the statute to be enforced by private
persons, make that clear
If she wants the statute to be enforced by a penalty or
by a state agency, make that clear
Don’t leave it up to the courts to decide unless that’s
what your bill sponsor wants
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7.
EFFECTIVE DATES AND INITIAL
APPLICABILITY OF STATUTES

Effective dates
o
o

Effective Date
 In Wisconsin, if no effective date is specified,
the effective date is the day after publication. [s.
991.11, Wis. Stats.]
Delayed effective dates
Retroactive legislation
Initial applicability
Delayed Effective Date
When might a delayed effective date be advisable?
 The legislation imposes new duties on an agency,
including the courts, and time for preparation for
the change is desirable.
o
o
o
Time to set up a new program.
Time to promulgate administrative rules.
Time to create forms or jury instructions.
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Delayed Effective Date


Keep in mind—try to use a length of time after the
effective date instead of a specific date to avoid
running up against the date if the legislation is
delayed.
However, you may use a specific date if you are
coordinating the legislation with another effective
date.
Retroactive Legislation—Criminal


Ex post facto laws are prohibited under Article I,
Section 10 of the U.S. Constitution and state
constitutions.
A law violates the Ex Post Facto Clause if it makes
more burdensome the punishment for a crime after
its commission. [Calder v. Bull, 3 U.S. (3 Dall.)
386 (1798).]
Retroactive Legislation


There is a presumption of prospective application
of statutes.
Procedural statutes, however, are presumed to
apply retroactively
Retroactive Legislation—Criminal
“In determining whether legislation which bases a disqualification on
the happening of a certain past event imposes a punishment, the Court
has sought to discern the objects on which the enactment in question
was focused. Where the source of legislative concern can be thought
to be the activity or status from which the individual is barred, the
disqualification is not a punishment even though it may bear harshly
upon one affected. The contrary is the case where the statute in
question is evidently aimed at the person or class of persons
disqualified.” [Flemming v. Nestor, 363 U.S. 603, 613-614, 80 S. Ct.
1367 (1960).]
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Retroactive Legislation—Criminal
“Where a statute serves a legitimate, regulatory,
nonpunitive purpose, it only violates the Ex Post Facto
Clause if the regulatory sanction ‘bears no rational
connection to the purposes of the legislation…’”
[State v. Carpenter, 197 Wis. 2d 105, 113-114, 541
N.W.2d 105 (1995), quoting Flemming v. Nestor, 363
U.S. 603, 617, 870 S.Ct. 1367 (1960).]

Retroactive Legislation—Civil


Retroactive legislation presents unique constitutional
problems because it often unsettles important rights.
Therefore, it is viewed with some degree of suspicion.
[Martin by Scoptur v. Richards, 192 Wis. 2d 156, 20001 (1995).]
Challenges primarily based on the due process clauses
under the 14th Amendment to the U.S. Constitution and
your state’s constitution.
Retroactive Legislation—Civil
Retroactive Legislation—Civil
Test


Does the statute have a retroactive effect on a vested
interest?
Does the statute have a rational basis?
In WI, weigh the public interest served by the retroactive law
against the private interests overturned by it (the Martin test).
 “The public purpose supporting retroactivity under a due process
analysis must…be substantial, valid and intended to remedy a
general economic or social issue.” [Neiman v. American National
Property and Casualty Co., 236 Wis. 2d 411 (2000).]

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Retroactive Legislation—Civil

Special note with retroactivity affecting a statute of
limitation—in Wisconsin, such legislation upsets a
vested right; in other states it extinguishes a remedy
but not a right (e.g., California).
Initial Applicability

How the legislation affects pending litigation.
To avoid an ex post facto challenge.
 If the legislation will impair existing contracts.


Best Practices


Talk to the bill sponsor about using a delayed
effective date when an agency or other entity will
need some lead time to adequately prepare to carry
out the requirements of the legislation.
Be aware of retroactive provisions and how they
may be challenged in your state.
When should you specify?
Best Practices

Be sure to discuss an initial applicability provision
for any legislation that affects pending litigation,
creates a new criminal penalty, or affects current
contracts.
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Plain Meaning Rule
8.
STATUTORY CONSTRUCTION
If the statutory language is clear and there
is no reasonable doubt as to its meaning,
the judge will apply the plain language of
the statute.
Plain Meaning Rule
Words and phrases are read in context and construed
according to the rules of grammar and common usage.
Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or
otherwise, are construed accordingly.
Applying plain meaning rule, judge will avoid an
interpretation that:
 leads to an illogical or absurd result
would defeat the obvious intent of the statute
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Plain Meaning
Two or more meanings
Two applicable statutes resulting in differing outcomes
PLAIN
LANGUAGE
Ambiguity
Legislative History and Intent
Presumptions
Legislative History and Legislative Intent
Legislative History Sources:
• Committee Reports
• Recordings of Committee/Floor Debates
• Transcriptions
Statute is constitutional
Statute’s every word to have effect
Statute to have a just a reasonable result
Statute to be feasible
Statement of Legislative Intent
Statute to benefit the public interest – not private interests
• Some Deference
• Not Definitive
Statute to be prospective
Statute is consistent in word usage
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Presumptions
Conflicting Statutes
If possible – harmonize and give effect to both
Legislature is aware of judicial interpretations of words and,
when amending or enacting statutes, is presumed to concur in
that interpretation unless the amendment or enactment states
otherwise.
Later in time controls
Specific controls over the general – unless ….
General statement is later in time
and Legislature intends general statement to control
Statutory Construction
Statutory Construction
Nosciture a Sociis (“it is known from its associates”)
Interpret the meaning of an ambiguous word by looking at
the words associated with and surrounding it
Ejusdem Generis (“of the same kind, class, or nature”)
General words that follow specific words are construed to
include only objects similar in nature to the objects
enumerated by the specific words
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Statutory Construction
Best Practices
Expressio Unius est Exclusio Alterius (“inclusion
of one thing implies the exclusion of the other”)
If certain terms are explicitly set forth in the statute, the
statute may not apply to terms that are excluded from the
statute


In Pari Materia (“upon the same matter or subject”)
Court will look to the entire statute and the surrounding
statutes to determine meaning of ambiguous statute

Write in plain language
Know your rules of grammar and punctuation –
create a library of good references
Legislators presumed to know statutory construction
rules and canons – they don’t – you must
Best Practices
9.


LEGISLATIVE PRIVILEGE AND IMMUNITY
Know how courts have previously interpreted the
language you’re using
Check your state’s statutes for specific statutes
regarding statutory construction
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Legislative Privilege and Immunity
Legislative Immunity:

Protects from lawsuits that threaten
personal liability
Legislative Privilege:

Evidentiary rule limiting testimony and
production of documents
United States Constitution
Legislative Privilege and Immunity




English Bill of Rights – 1689
Colonial Legislatures
Articles of Confederation - Art. V
State Constitutions


Massachusetts 1789
New Hampshire 1784
States
United States Constitution, Art. I, §6 (1)
The senators and representatives … shall, in all cases, except treason,
felony, and breach of the peace, be privileged from arrest during their
attendance at the session of their respective houses, and in going to and
returning from the same, and for any speech or debate in either house
they shall not be questioned in any other place.

43 states: Constitutional speech and debate clause
7
states - California, Florida, Iowa, Mississippi, Nevada, North Carolina,
South Carolina


no constitutional provision speech and debate clause
all but 2 constitutional privilege against arrest - interpreted
to support common law privilege for speech and debate
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Purpose
3 Key features
Ensure free and open debate to protect the will of the
people and full representation of the people
 Strengthen separation of powers
 Enable representatives to fully pursue the people’s
business without the distraction of defending against
lawsuits

Sphere of Legitimate Legislative Activity
“Sphere of Legitimate Legislative Activity”
Acts that are “an integral part of the deliberative and communicative
processes by which Members participate in committee and House proceedings
with respect to the consideration and passage or rejection of proposed
legislation or with respect to other matters which the Constitution places
within the jurisdiction of either House.”
Gravel v. United States, 408 U.S. 606, 625 (1972)
1)
2)
3)
Exists to protect integrity of the process – not the
legislators themselves
Should be applied broadly to ensure this protection
Covers only core legislative activities – not all
activities a legislator may undertake
Actions in the “Sphere”
Actions taken during formal legislative proceedings
 Acting in legislative committee investigation activities
 Acting in impeachment proceedings
 Enacting and enforcing legislative rules
 Publishing official legislative documents

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Examples






Introducing bills
Making speeches on the floor
Serving on a committee
Questioning witnesses
Failing or refusing to vote on a
bill
Voting on an executive
appointment
Not within the “sphere”






Voting on an impeachment
Authoring a committee report
Lobbying other legislators
Drafting documents
Gathering information
Some constituent
communications




Legislative Privilege and Immunity



Case-by-case decision
Distinguish between legislative (actions taken
within the legislative process) and political (actions
taken to get re-elected)
Doesn’t apply to administrative acts (individual
personnel decisions)
Serving on an executive branch 
committee

Unconstitutional or illegal

procedures

Travel on legislative business & 
requesting reimbursement
Speeches in the community
Issuing newsletters
Publishing books
Re-publishing reports
Some constituent
communications
Some personnel decisions
Protection from
1.
2.
3.
Civil lawsuits
State criminal prosecution
Subpoenas to testify or produce documents
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Things to Remember
Application to Legislative Staff
Personal to legislator – can decide whether to
exercise privilege
Survives after legislator leaves office
Bad faith, improper motives, unworthy purpose
will not affect the privilege

Legislative Privilege and Immunity
Best Practices
(WIIFM)





Applies to legislator’s aides and staff so long as the
act would be within the sphere if performed by
legislator
Legislators and aides treated as one
Some courts view protection more limited as applied
to staff
What to do?
Lawsuit:
Motion to dismiss on basis of legislative immunity
Immediately appealable if denied
Subpoena:
Motion to quash on basis of legislative immunity
Review materials from 2016 Leg Summit program:
"Privilege and Immunity: Protecting the Legislative
Process," Eric Silvia, Senate Counsel, Research and
Fiscal Analysis, MN
As soon as possible
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Best Practices



Know your state’s constitutional/statutory provisions
and judicial interpretations
Provide training for legislators and staff on what is
within the sphere of legislative activity and what is
not
Train legislators (and staff) to contact legal staff if
served with lawsuit or subpoena
10. WHAT’S THE BIG ISSUE IN YOUR STATE?
What’s the big issue in your state?





Confidentiality and Attorney/Client Privilege
Attorney/Client Relationship
Special Legislation
Single Subject/Original Purpose/Germaneness
Powers of Referendum
What’s the big issue in your state?





Open Meeting/Open Records
Appropriations and the Public Purpose Doctrine
Impairment of Contract
Cannot Bind a Future Legislature
Severability/Nonseverability
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9/26/2016
Thank you!!

Anne Sappenfield



[email protected]
(608) 266-2818
Julie Pelegrin


[email protected]
(303) 866-2700
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