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Legislative privilege violates separation of powers

Vergeront

Hon. Margaret Vergeront

The legislative privilege, sec. 757.13, is unconstitutional insofar as it purports to mandate that courts adjourn proceedings involving state legislators, the Wisconsin Court of Appeals held on Nov. 13.

On Oct. 17, 2002, a criminal complaint was filed against Charles Chvala, a senator in the Wisconsin legislature, charging him with extortion, misconduct in public office, and violations of campaign finance statutes. At the scheduling conference on Feb. 28, 2003, Chvala argued that sec. 757.13 mandates that the trial be adjourned until after Mar. 11, 2004, the last day of the biennial term that began Jan. 6, 2003.

Section 757.13 provides: “When a witness, party or an attorney for any party to any action or proceeding in any court or any commission, is a member of the Wisconsin legislature, in session, that fact is sufficient cause for the adjournment or continuance of the action or proceeding, and the adjournment or continuance shall be granted without the imposition of terms.”

Dane County Circuit Court Judge David T. Flanagan denied the request, ruling that there was a substantial public interest in resolving the charges, but that he would give reasonable and appropriate consideration to the legislature’s schedule. Trial was ultimately scheduled for Oct. 6, 2003, a date when the legislature was not in active session.

The court of appeals granted Chvala leave to appeal the ruling, and the Oct. 6 date was removed because of the pending appellate proceedings.

The court of appeals affirmed in a decision by Judge Margaret Vergeront, holding that it would violate the doctrine of separation of powers to construe the statute as suggested by Chvala. The court held that it only directs courts to consider, in their discretion, that a witness, party, or party’s attorney is a legislator in session, when such persons request a continuance or adjournment for that reason.

Competing Constructions

The court first considered the language of the statute, and found that the construction suggested by Chvala is a reasonable one.

Chvala argued that the common meaning of “sufficient” is “as much as is needed,” and therefore membership in the legislature in session is all that is necessary for a continuance or adjournment.

Chvala also pointed out that the concluding phrase uses the mandatory, “shall”: “adjournment or continuance shall be granted without the imposition of terms” — and “shall” is most commonly used to require an act.

The State, on the other hand, noted that the statute does not expressly state that a court must grant an adjournment or continuance if a witness, party, or party’s attorney is a member of the legislature in session. According to the State, “sufficient cause” simply means that a court in the exercise of its discretion may grant an adjournment or continuance solely for this reason.

What the court held

Case: State of Wisconsin v. Charles Chvala, No. 03-0746-CR.

Issue: Does the legislative privilege statute mandate that courts grant continuances to legislators who are parties to a court action upon demand?

Holding: No. Such a construction would violate the courts’ inherent power to ensure that they function efficiently and fairly.

Counsel: James A. Olson, Madison; Dixon R. Gahnz, Madison; John C. Carlson Jr., Madison, for appellant; David A. Feiss, Milwaukee; Barbara L. Oswald, Madison; Jennifer E. Nashold, Madison, for respondent.

The State argued that the concluding phrase does not mean that an adjournment or continuance “shall be granted,” but that, “shall be granted without the imposition of terms,” means only that, if an adjournment or continuance is granted, the court may not impose costs.

Alternatively, the State contended that the term “session” encompasses only the floor periods and special and extraordinary sessions, and not the entire term.

The court declined to consider whether the State’s construction is reasonable, because it concluded that, if the statute is construed as Chvala urged, it would violate the separation of powers doctrine.

Separation of Powers

The court agreed with Chvala that the statute does fall within the constitutional powers of the legislature. Wis. Const. art IV, sec. 7, provides: “Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide.”

The court concluded, “it follows … that the legislature has the authority to legislate in matters that affect its ability to carry out the business of the legislature. We conclude that continuances and adjournments for witnesses, parties, and parties’ attorneys who are members of the legislature in session is a matter that affects the ability of the legislature to carry out its business.”

However, courts have inherent authority to grant or deny continuances and adjournments to ensure that they function efficiently and fairly.

The court concluded, “Because the matter of continuances and adjournments for witnesses, parties, and parties’ attorneys who are members of the legislature in session is within the constitutional powers of both the legislature and the judiciary, we must next decide whether Wis. Stat. sec. 757.13, if construed as mandatory, unduly burdens the judiciary or substantially interferes with the constitutional exercise of its authority. We conclude that it does.”

The court cited E.B. v. State, 111 Wis. 2d 175, 186, 330 N.W.2d 585 (1983), in which the Supreme Court held that if a statute were construed to mandate a reversal for a court’s failure to provide the jury written instructions on the substantive law, the statute would violate the separation of powers doctrine.

In E.B., the court concluded that a mandatory construction would impermissibly circumscribe judicial power because it is the judiciary’s function to determine on a case-by-case basis whether error is reversible.

The court concluded that the same reasoning applies in the case at bar, stating, “Under Chvala’s construction, a court has no discretion whether to deny a continuance or adjournment no matter how compelling the need for the case to proceed immediately and no matter what means of accommodation are available to minimize or avoid interference with legislative duties. This is a direct and significant interference with the judiciary’s ability to exercise its inherent authority to decide, on the specific facts before it, whether the interests of efficiency and fairness will or will not be best served by a continuance or adjournment.”

The court noted that its reasoning is consistent with the great majority of cases from other states in which courts have held that statutes mandating continuances during legislative sessions violate the separation of powers doctrine.

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Wisconsin Court of Appeals

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Case Analysis

Accordingly, the court looked for a construction of the statute that would be both reasonable and constitutional, and held, “the statute may be reasonably construed to allow a court to exercise its discretion on whether to grant or deny a continuance or adjournment when a witness, party, or party’s attorney is a member of the legislature in session. As the State has pointed out, the language that such statute is a ‘sufficient cause’ does not expressly mandate that a continuance or adjournment be granted; and the addition of ‘without the imposition of terms’ to the last phrase may be reasonably construed to mean that, if a continuance is granted, it shall be without the imposition of costs.”

The court added, “In keeping with the recognition that the matter of continuances or adjournments for members of the legislature in session is encompassed within the constitutional powers of the legislature, and that legislators’ attendance when the legislature is in session is c
ritical to the ability of the legislature to carry out its constitutional powers, courts should carefully consider requests for continuances or adjournments; and courts should accommodate the schedule of the legislature consistent with the demands of fairness and efficiency in the particular case.”

Because the court interpreted the statute in this manner, it found it unnecessary to define the term, “session.”

Accordingly, the court affirmed, instructing, “The specific nature and extent of the legislature’s scheduled activities will be considered by the trial court when a continuance is requested.”

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David Ziemer can be reached by email.

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