SEPARATION OF POWERS. Wisconsin Constitution. Wisconsin Constitution 9/26/2016

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1 Strong States, Strong Nation TOP 10 LEGAL PRINCIPLES LEGISLATIVE STAFF SHOULD KNOW AND BE ABLE TO EXPLAIN 1. SEPARATION OF POWERS Wisconsin Constitution Wisconsin Constitution The legislative power shall be vested in the senate and assembly. [Art. IV, sec. 1.] 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.] 1

2 Wisconsin Constitution Colorado 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).] 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. 2

3 However Wisconsin Test 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.] 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. 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 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, (1999); citations omitted.] 3

4 Review the separation of powers page on NCSL s website: 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. 2. FEDERAL PREEMPTION OF STATE LAWS 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 4

5 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 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. Federal Law Tenth Amendment Federal law includes: U.S. constitution federal statutes federal agency regulations federal common law 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. 5

6 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. Pervasiveness of federal law 2. Need for national conformity 3. Danger of a conflict Conflict Preemption Conflict Preemption 2 Types: 1. Physically impossible to comply with both federal and state laws 2. State law creates an obstacle to purpose of federal law State Law 6

7 Anti-preemption Options Anti-preemption Options Ask for a federal waiver Include a severability clause Ask Congress to change the federal law : Review the NCSL webinar: Federal and State Pre-emption Basics: What Every Drafter Ought to Know, Erin Smith, TX (7/12/16) : Be prepared know the likely areas for preemption in the subjects you draft in Discuss possible preemption with the bill sponsor : If might be preempted, offer alternatives: direct executive agency to seek waiver; include severability clause; draft request for Congress to reconsider federal statute 7

8 3. PLENARY POWER Definition of plenary Full, complete, entire. [Black s Law Dictionary, 7 th Ed.] Wisconsin 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).] 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, (1860).] 8

9 Colorado 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).] 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 What about the other branches? Presumption of constitutionality General police powers Presumption that appropriation serves a public purpose 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. 9

10 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. 4. STATE PREEMPTION OF LOCAL LAWS Amendments to the U.S. Constitution 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 Strong States, Strong Nation 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 10

11 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? 11

12 Three Types of Laws 3 types of laws: Matters of Statewide Concern State law trumps local ordinance Matters of Local Concern Local ordinance trumps state law Matters of Mixed Statewide and Local Concern State law trumps local ordinance Court decides Court decides what type of law it is: Varies state-to-state Decided case-by-case, considering totality of circumstances Usually there s overlap Will consider legislative declaration Colorado Wisconsin 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 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 12

13 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 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? 5. RULE-MAKING AUTHORITY 13

14 Sources of Authority 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 (2) (a), Wis. Stats.] Legislation may require an agency to promulgate administrative rules and may specify what an agency may not include in its administrative rules. Authority Granting Rule-Making 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).] 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. 14

15 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. 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. When drafting a rule making provision, think about distinguishing between establishing policy and carrying out policy. 6. ENFORCING STATUTES -STANDING 15

16 Enforcing Statutes Enforcing Statutes What happens if someone violates this statute? Criminal penalty? Can a person sue to enforce this statute? Civil fine? State Attorney General enforces through civil suit? Standing Right of Action Does the person have standing to bring a lawsuit? Actual injury To a legally protected interest Does the statute imply a private right of action? In other words does the statute create a legally protected interest for the person? 16

17 Three Questions Taxpayer Standing 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? 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 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 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 17

18 7. EFFECTIVE DATES AND INITIAL APPLICABILITY OF STATUTES Effective dates o Delayed effective dates o Retroactive legislation Initial applicability Effective Date Delayed Effective Date In Wisconsin, if no effective date is specified, the effective date is the day after publication. [s , Wis. Stats.] 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 Time to set up a new program. o Time to promulgate administrative rules. o Time to create forms or jury instructions. 18

19 Delayed Effective Date Retroactive Legislation 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. There is a presumption of prospective application of statutes. Procedural statutes, however, are presumed to apply retroactively Retroactive Legislation Criminal 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).] 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, , 80 S. Ct (1960).] 19

20 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, , 541 N.W.2d 105 (1995), quoting Flemming v. Nestor, 363 U.S. 603, 617, 870 S.Ct (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, (1995).] Challenges primarily based on the due process clauses under the 14 th 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).] 20

21 Retroactive Legislation Civil Initial Applicability 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). When should you specify? How the legislation affects pending litigation. To avoid an ex post facto challenge. If the legislation will impair existing contracts. 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. Be sure to discuss an initial applicability provision for any legislation that affects pending litigation, creates a new criminal penalty, or affects current contracts. 21

22 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 22

23 Plain Meaning Two or more meanings Two applicable statutes resulting in differing outcomes Ambiguity PLAIN LANGUAGE Legislative History and Intent Legislative History and Legislative Intent Legislative History Sources: Committee Reports Recordings of Committee/Floor Debates Transcriptions Statement of Legislative Intent Some Deference Not Definitive Presumptions Statute is constitutional Statute s every word to have effect Statute to have a just a reasonable result Statute to be feasible Statute to benefit the public interest not private interests Statute to be prospective Statute is consistent in word usage 23

24 Presumptions Conflicting Statutes 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. If possible harmonize and give effect to both 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 24

25 Statutory Construction 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 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 25

26 Legislative Privilege and Immunity Legislative Privilege and Immunity Legislative Immunity: Protects from lawsuits that threaten personal liability Legislative Privilege: Evidentiary rule limiting testimony and production of documents English Bill of Rights 1689 Colonial Legislatures Articles of Confederation - Art. V State Constitutions Massachusetts 1789 New Hampshire 1784 United States Constitution 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 26

27 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 1) Exists to protect integrity of the process not the legislators themselves 2) Should be applied broadly to ensure this protection 3) Covers only core legislative activities not all activities a legislator may undertake Sphere of Legitimate Legislative Activity Actions in the Sphere 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) 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 27

28 Examples Not within the sphere Introducing bills Voting on an impeachment Making speeches on the floor Authoring a committee report Serving on a committee Lobbying other legislators Questioning witnesses Drafting documents Failing or refusing to vote on a Gathering information bill Some constituent Voting on an executive communications appointment 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 Legislative Privilege and Immunity Protection from 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) 1. Civil lawsuits 2. State criminal prosecution 3. Subpoenas to testify or produce documents 28

29 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 (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 Legislative Privilege and Immunity 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 As soon as possible Review materials from 2016 Leg Summit program: "Privilege and Immunity: Protecting the Legislative Process," Eric Silvia, Senate Counsel, Research and Fiscal Analysis, MN 29

30 Know your state s constitutional/statutory provisions and judicial interpretations 10. WHAT S THE BIG ISSUE IN YOUR STATE? 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 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 Open Meeting/Open Records Appropriations and the Public Purpose Doctrine Impairment of Contract Cannot Bind a Future Legislature Severability/Nonseverability 30

31 Thank you!! Anne Sappenfield (608) Julie Pelegrin (303)