Although the court declined to define session, its decision and instructions upon remand implicitly reject Chvalas interpretation and construe it to mean only actual session.
The references to accommodating the legislatures schedule cannot reasonably be reconciled with an interpretation that would define session as an entire two-year term.
Furthermore, the interpretation offered by Chvala is patently unreasonable, as is apparent when one considers that the usual application of the statute will involve cases in which the legislator is not a party, but an attorney for a party.
All of the cases cited by the court from other jurisdictions involve this latter situation. While attorneys no longer constitute a significant number of state legislators, as we once did, one can still hope that the usual case involving sec. 757.13 will fall into this category, rather than that of a legislator being charged with crimes.
Chvalas proposed construction would permit any attorney who gets elected to the legislature to adjourn any or all of his cases for two years, as he pleases. This would be an unreasonable result, as is demonstrated by the Rhode Island case cited by the court, Lemoine v. Martineau, 342 A.2d 616 (R.I.1975).
In Lemoine, an attorney who was also a legislator invoked Rhode Islands equivalent of sec. 757.13 to adjourn a scheduled trial not so that he could attend a legislative sessions, but so that he could try a different case before a different judge.
Nevertheless, it is noteworthy that some of the other jurisdictions do interpret session to encompass the entire legislative term, even though they hold, as the Wisconsin Court of Appeals did, that the provisions are unconstitutional to the extent they purport to make adjournment of court cases mandatory upon request.
Thurmond v. Superior Court, 427 P.2d 985 (Cal.1967); Granai v. Witters, 194 A.2d 391 (Vt.1963).
The cases from other jurisdictions may also be of use in future cases interpreting sec. 757.13, because the court gave little guidance as to what trial courts should consider in the exercise of their discretion.
Courts in Florida, Texas, and South Carolina, have all concluded that a proper exercise of discretion will result in continuances being liberally granted, unless the court case involves emergency litigation. A.B.C. Business Forms, Inc. v. Spaet, 201 So.2d 890 (Fla.1967); Waites v. Sondock, 561 S.W.2d 772 (Tex.1977); and Williams v. Bordons, Inc., 262 S.E.2d 881 (S.C.1980). Child support cases and cases seeking injunctive relief have been found to fall into this category.
Another factor courts are frequently directed to consider is whether the attorney has been retained solely for the purpose of delaying the litigation. In the Waites case from Texas, for example, the legislator-attorney was hired the day before a trial.
– David Ziemer
Click here for Main Story.
David Ziemer can be reached by email.