Andrew Waity v. Devin Lemahieu ( 2022 )

2022 WI 6SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP802
COMPLETE TITLE: Andrew Waity, Judy Ferwerda, Michael Jones and
Sara
Bringman,
Plaintiffs-Respondents,
v.
Devin Lemahieu, in his official capacity and
Robin Vos, in
his official capacity,
Defendants-Appellants-Petitioners.
ON PETITION TO BYPASS THE COURT OF APPEALS
OPINION FILED: January 27, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 1, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Stephen E. Ehlke
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. DALLET, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellants-petitioners, there were
briefs filed by Misha Tseytlin, Kevin M. LeRoy and Troutman
Pepper Hamilton Sanders, Chicago. There was an oral argument by
Misha Tseytlin.
For the plaintiffs-respondents, there was a brief filed by
Lester A. Pines, Tamara B. Packard, Aaron G. Dumas, Leslie A.
Freehill, Beauregard W. Patterson and Pines Bach LLP, Madison.
There was an oral argument by Lester A. Pines.
There was an amicus curiae brief filed on behalf of
Wisconsin Democracy Campaign by Jeffrey A. Mandell, Douglas M.
Poland and Stafford Rosenbaum LLP, Madison; and Mel Barnes and
Law Forward, Inc.
2
2022 WI 6NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP802
(L.C. No. 2021CV589)
STATE OF WISCONSIN : IN SUPREME COURT
Andrew Waity, Judy Ferwerda, Michael Jones and
Sara Bringman,
Plaintiffs-Respondents, FILED
v. JAN 27, 2022
Devin LeMahieu, in his official capacity and Sheila T. Reiff
Robin Vos, in his official capacity, Clerk of Supreme Court
Defendants-Appellants-Petitioners.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. HAGEDORN, J., filed a concurring opinion. DALLET, J.,
filed a dissenting opinion, in which ANN WALSH BRADLEY and
KAROFSKY, JJ., joined.
APPEAL from a judgment and an order of the Circuit Court
for Dane County, Stephen E. Ehlke, Judge. Reversed and
remanded.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This case is before
the court on bypass pursuant to Wis. Stat. § (Rule) 809.60
(2019-20).1 On bypass, we review an order of the Dane County
1All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
No. 2021AP802
circuit court,2 Waity v. LeMahieu, No. 2021CV589 (Dane Cnty. Cir.
Ct. Apr. 29, 2021), granting summary judgment in favor of
Respondents, Andrew Waity, Judy Ferwerda, Michael Jones, and
Sara Bringman, and against Petitioners, Devin LeMahieu and Robin
Vos.3 In its order, the circuit court enjoined the Petitioners
from issuing payments under two contracts for legal services,
and it declared the contracts void ab initio.
¶2 Petitioners, on behalf of the legislature, entered
into contracts for attorney services regarding the decennial
redistricting process and resulting litigation. Respondents
claim that Petitioners lacked authority to enter into the
contracts, and they ask us to declare the agreements void ab
initio. Because Petitioners had authority under Wis. Stat.
§ 16.744 to "purchase[]" for the legislature "contractual
2 The Honorable Stephen E. Ehlke presided.
Senator LeMahieu is the majority leader of the Wisconsin
3
State Senate, while Representative Vos is Speaker of the
Wisconsin State Assembly. Together, they represent the
leadership of the Wisconsin Legislature.
4 The relevant portion of Wis. Stat. § 16.74 is provided
below:
(1) All supplies, materials, equipment,
permanent personal property and contractual services
required within the legislative branch shall be
purchased by the joint committee on legislative
organization or by the house or legislative service
agency utilizing the supplies, materials, equipment,
property or services. All supplies, materials,
equipment, permanent personal property and contractual
services required within the judicial branch shall be
purchased by the director of state courts or the
judicial branch agency utilizing the supplies,
materials, equipment, property or services.
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No. 2021AP802
services," the agreements at issue were lawfully entered. The
circuit court's decision to enjoin enforcement of the contracts
was improper.
¶3 We reverse the circuit court's grant of summary
judgment in Respondents' favor, and instead, we remand this case
to the circuit court with instructions to enter judgment in
favor of Petitioners. In addition, we clarify the standard for
granting a stay of an injunction pending appeal. The circuit
court in this case incorrectly applied that standard and refused
to stay its injunction pending appeal of its decision. Further
. . .
(2)(b) Contracts for purchases by the senate or
assembly shall be signed by an individual designated
by the organization committee of the house making the
purchase. Contracts for other legislative branch
purchases shall be signed by an individual designated
by the joint committee on legislative organization.
Contracts for purchases by the judicial commission or
judicial council shall be signed by an individual
designated by the commission or council, respectively.
Contracts for other judicial branch purchases shall be
signed by an individual designated by the director of
state courts.
. . .
(4) Each legislative and judicial officer shall
file all bills and statements for purchases and
engagements made by the officer under this section
with the secretary, who shall audit and authorize
payment of all lawful bills and statements. No bill
or statement for any purchase or engagement for the
legislature, the courts or any legislative service or
judicial branch agency may be paid until the bill or
statement is approved by the requisitioning or
contracting officer under sub. (2).
3
No. 2021AP802
explanation from this court is needed to ensure the standard for
stays pending appeal is correctly followed in the future.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 For decades, the Wisconsin Legislature has hired
attorneys to provide competent legal advice on redistricting.
Faced with the inherent challenges of drawing new political
boundaries in the state, described both as a "thicket," Jensen
v. Wis. Elections Bd., 2002 WI 13, ¶11, 249 Wis. 2d 706, 639
N.W.2d 537, and "a critical . . . part of politics," Rucho v.
Common Cause, 588 U.S. ___, 139 S. Ct. 2484, 2498 (2019), the
legislature has repeatedly consulted specialists to assist them
in developing maps and to prepare for subsequent litigation.
See Jensen, 249 Wis. 2d 706, ¶10 ("[R]edistricting is now almost
always resolved through litigation rather than
legislation . . . ."); see also, e.g., Wis. State AFL-CIO v.
Elections Bd., 543 F. Supp. 630 (E.D. Wis. 1982) (redistricting
litigation for the 1980 census); Prosser v. Elections Bd., 793
F. Supp. 859 (W.D. Wis. 1992) (litigation regarding
redistricting after the 1990 census); Baumgart v. Wendelberger,
Nos. 01-0121 & 02-C-0366, unpublished slip op. (E.D. Wis.
May 30, 2002) (redistricting litigation surrounding the 2000
census); Baldus v. Members of Wis. Gov't Accountability Bd., 849
F. Supp. 2d 840 (E.D. Wis. 2012) (litigation challenging maps
enacted by the Wisconsin Legislature and signed by the governor
after the 2010 census); Johnson v. WEC, No. 2021AP1450-OA,
unpublished order (Wis. Sept. 22, 2021, amend. Sept. 24, 2021)
4
No. 2021AP802
(granting petition for leave to commence an original action on
redistricting for the 2020 census).
¶5 For the 1980 and 1990 redistricting processes, the
legislature hired attorneys to provide advice and represent its
interests in litigation in federal and state court. Similarly,
for the 2000 and 2010 processes, the Senate Committee on
Organization authorized payments for attorney services for the
Wisconsin Senate, while the Wisconsin Assembly obtained counsel
for redistricting through separate agreements.
¶6 In line with historical precedent, the substantial
legislative demands redistricting created, and the need for pre-
litigation advice, both houses of the legislature retained legal
counsel for the 2020 redistricting process. On December 23,
2020, Petitioners, on behalf of the senate and assembly,
executed an attorney services contract to begin on January 1,
2021, with the law firm Consovoy McCarthy PLLC ("Consovoy"), in
association with Attorney Adam Mortara. Consovoy and Mortara
agreed to consult with the legislature on "possible litigation
related to decennial redistricting," "provide strategic
litigation direction," and "provide . . . day-to-day litigation
resources."5
¶7 On January 5, 2021, the Committee on Senate
Organization issued authorization for purchase of attorney
services. The committee voted to "authorize[] the
senate . . . to retain and hire legal counsel" for
5 The agreement was revised and re-signed on March 3, 2021.
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No. 2021AP802
redistricting. The authorization was to remain "in force the
entire 2021-2022 legislative session," and it provided Senator
LeMahieu with the authority to "approve all financial costs and
terms of representation."
¶8 On January 6, 2021, Senator LeMahieu, acting on behalf
of the senate, signed an engagement agreement with the law firm
Bell Giftos St. John LLC ("BGSJ"). The firm agreed to advise
the legislature on redistricting, including the "constitutional
and statutory requirements," "the validity of any draft
redistricting legislation," and for "judicial . . . proceedings
relating to redistricting."
¶9 On March 24, 2021, the Committee on Assembly
Organization followed the lead of the senate committee and voted
to authorize Speaker Vos to "hire . . . law firms, entities or
counsel necessary related to . . . legislative redistricting."
In addition, the committee noted that Speaker Vos "has always
[been] authorized" to contract for attorney services "beginning
on January 1, 2021."
¶10 To perform their contract obligations, the legislature
followed the same procedure it follows for all billings and
expenditures for the legislative branch. A bill or statement
was provided to business managers at the senate and assembly.
The managers entered the billing information into an online
software program called PeopleSoft; the information in
PeopleSoft was checked by the chief clerks, who then approved
the purchases and transmitted the information to the Department
of Administration ("DOA"). The DOA, as with all purchases made
6
No. 2021AP802
by the legislature, received details through the PeopleSoft
software on the payments requested by the legislature. The
agency received: (1) the names of the billing entities and
individuals (here the law firms contracted to provide services);
(2) invoice codes specific to the purchases at issue; (3)
invoice dates; (4) total dollar amounts requested; and (5) a
general accounting code that categorized the types of purchases
requested, i.e., legal services. After receiving this
information from the legislature, DOA approved the purchases and
transferred the requested funds to the senate and assembly.
¶11 On March 10, 2021, Respondents filed this taxpayer
lawsuit in Dane County circuit court. They sought a declaration
that the two attorney services agreements the legislature
entered into were void ab initio. The complaint alleged that no
legal authority permitted the Petitioners to sign the contracts
on behalf of the senate and assembly. Soon after filing the
complaint, Respondents moved for a temporary injunction barring
the legislature from issuing payment under the attorney services
contracts and prohibiting Petitioners from seeking legal advice
other than from the Wisconsin Department of Justice.
¶12 Petitioners moved to dismiss the complaint. After a
hearing, the circuit court denied the request for a temporary
injunction and converted Petitioners' motion to dismiss into a
motion for summary judgment.6 The circuit court ordered
Under Wis. Stat. § 802.06(2)(b), a motion to dismiss for
6
failure to state a claim is converted into a motion for summary
judgment where "matters outside of the pleadings are presented
to and not excluded by the court."
7
No. 2021AP802
additional briefing. In a response brief to the motion for
summary judgment, Respondents stated that the court should not
only deny Petitioners' motion, but also grant summary judgment
in Respondents' favor.
¶13 On April 29, 2021, the circuit court issued a written
decision agreeing with Respondents. The circuit court held that
there was not statutory or constitutional authority by which
Petitioners could enter into and perform on the attorney
engagement agreements with Consovoy, Mortara, and BGSJ.
Specifically, the court quoted Wis. Stat. § 16.74(1), which
states, in relevant part: "All supplies, materials, equipment,
permanent personal property and contractual services required
within the legislative branch shall be purchased by the joint
committee on legislative organization or by the house or
legislative service agency utilizing the supplies, materials,
equipment, property or services." (Emphasis added.) The
circuit court read the provision as allowing the legislature to
purchase supplies, materials, and contractual services, but only
contractual services that are "relate[d] to" and "required" by
purchases of other physical property. Thus, while the
legislature could hire a repairman to inspect an air
conditioning unit, it could not contract for stand-alone
attorney services. In addition, the circuit court held that,
while the legislature "could probably . . . hire counsel to
review [redistricting maps] it has drawn," it could not legally
enter into the contracts at issue because the agreements were
8
No. 2021AP802
"preemptive" and "litigation . . . may not even occur."7 Thus,
the circuit court declared the relevant contracts void ab initio
and enjoined Petitioners from authorizing any further payments
under the contracts.
¶14 The day after the circuit court issued its opinion,
Petitioners filed a notice of appeal and an emergency motion for
a stay pending appeal. On May 10, 2021, the circuit court held
a hearing and denied the request for a stay. In so doing, the
circuit court reviewed the arguments the Petitioners advanced
and noted that it "disagree[d] with their legal analysis." The
circuit court reiterated that it had considered the caselaw in
support of Petitioners' position and it "reaffirm[ed]" its
conclusions of law. In its reasoning, the circuit court noted
that Petitioners had "re-present[ed] . . . what was originally
before [the circuit court]." The circuit court reasoned that it
would "merely be repeating what [it] already set forth" in the
April 29 opinion. Consequently, the circuit court held that
Petitioners were unlikely to succeed on appeal. The circuit
court continued, stating that Petitioners would not suffer
irreparable harm because they could rely on institutions such as
the Attorney General's office for legal advice, and Petitioners
could hire private firms if redistricting litigation was
initiated. Finally, according to the circuit court, because the
7 In addition, the circuit court held that Petitioners did
not have independent authority to enter into the contracts under
Wis. Stat. § 13.124, Wis. Stat. § 20.765, or the legislature's
powers under the Wisconsin Constitution.
9
No. 2021AP802
contracts constituted unauthorized expenditure of public funds,
harm would befall the general public, and a stay was not
warranted.
¶15 On May 12, 2021, Petitioners filed a motion for a stay
pending appeal at the court of appeals. On June 29, 2021, two
months after the circuit court enjoined enforcement of the
attorney services contracts, the court of appeals issued a
decision, declining Petitioners' request for a stay. Waity v.
LeMahieu, No. 2021AP802, unpublished order (Wis. Ct. App.
June 29, 2021). The court of appeals explained that the circuit
court properly analyzed the relevant standard, and its decision
was not an erroneous exercise of discretion. Id. at 6-7.
¶16 On June 30, 2021, Petitioners filed with this court a
petition to bypass the court of appeals and a motion to stay the
circuit court's injunction pending appeal. On July 15, 2021, we
granted the Petitioners' request to bypass the court of appeals,
and, in an unpublished order, granted the motion for stay.
Waity v. LeMahieu, No. 2021AP802, unpublished order (Wis.
July 15, 2021) (granting motion for relief pending appeal). In
so doing, we analyzed the circuit court's stay analysis and
concluded that the circuit court misapplied the relevant
standard.
10
No. 2021AP802
II. STANDARD OF REVIEW
¶17 In this case, we are asked to review motions for
summary judgment.8 "Whether the circuit court properly granted
summary judgment is a question of law that this court reviews de
novo." Racine County v. Oracular Milwaukee, Inc., 2010 WI 25,
¶24, 323 Wis. 2d 682, 781 N.W.2d 88 (quotations omitted).
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law." Wis. Stat. § 802.08(2). A
party opposing summary judgment "'may not rest upon the mere
allegations or denials of the pleadings' but instead, through
affidavits or otherwise, 'must set forth specific facts showing
that there is a genuine issue for trial.'" Oracular Milwaukee,
323 Wis. 2d 682, ¶26 (quoting Wis. Stat. § 802.08(3) (2007-08)).
¶18 This case also presents questions of statutory
interpretation. "Interpretation of a statute is a question of
law that we review de novo, although we benefit from the
analyses of the circuit court and the court of appeals." Estate
of Miller v. Storey, 2017 WI 99, ¶25, 378 Wis. 2d 358, 903
N.W.2d 759. "[S]tatutory interpretation begins with the
Petitioners originally moved to dismiss the complaint,
8
which the circuit court converted into a motion for summary
judgment. See Wis. Stat. § 802.06(2)(b). In response to the
motion, at the circuit court, Respondents requested summary
judgment in their favor. We review the cross motions for
summary judgment on appeal.
11
No. 2021AP802
language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry. Statutory language is
given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." State ex rel. Kalal
v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110 (citations and quotations omitted). In addition,
"statutory language is interpreted in the context in which it is
used; not in isolation but as part of a whole; in relation to
the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results." Id., ¶46.
III. ANALYSIS
¶19 The Respondents argue that Petitioners lacked any
legal authority to enter into legal contracts with Consovoy,
Mortara, and BGSJ. In response, Petitioners claim that, at a
minimum, Wis. Stat. § 16.74 provides Petitioners, acting on
behalf of the legislature, the necessary authority.9 Petitioners
argue that the circuit court erred in granting summary judgment
in Respondents' favor, and that in fact, summary judgment is
warranted in favor of Petitioners.
¶20 We agree with the Petitioners. For the reasons
provided below, Wis. Stat. § 16.74 grants the legislature
9Petitioners also argue that they had authority to enter
the legal services contracts under Wis. Stat § 13.124, Wis.
Stat. § 20.765, and the Wisconsin Constitution. Because we hold
that Wis. Stat. § 16.74 provides Petitioners independent legal
authority to enter the contracts, we will not address
Petitioners' other claims.
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No. 2021AP802
authority to enter into legal contracts to assist in
redistricting and related litigation.
¶21 In addition, we address the circuit court's decision
to deny a stay of its injunction pending appeal. The circuit
court misapplied the standard for granting stays pending appeal.
Although we reversed the circuit court's decision in an
unpublished order on July 15, 2021, additional explanation of
our prior decision is needed to ensure compliance with the law.
A. The Legislature's Authority To Enter
Into Legal Services Contracts Under Wis. Stat. § 16.74.
1. The circuit court decision
¶22 Wisconsin Stat. § 16.74(1), titled "Legislative and
judicial branch purchasing," states that "[a]ll supplies,
materials, equipment, permanent personal property and
contractual services required within the legislative branch
shall be purchased by the joint committee on legislative
organization or by the house or legislative service agency
utilizing the supplies, materials, equipment, property or
services." The circuit court reasoned that, although the
legislature could purchase some services under this agreement,
because the legal services at issue were not related to other
"supplies, materials, equipment, [or] permanent personal
property," the legal services fell outside the scope of the
statute.
¶23 The circuit court misinterpreted Wis. Stat. § 16.74.
The statute explicitly permits each house of the legislature to
purchase "contractual services" that are "required within the
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No. 2021AP802
legislative branch." § 16.74(1). The text of § 16.74 does not
state that purchase of services must be tied to other physical
property purchases. In fact, Wis. Stat. § 16.70(3) defines
"contractual services" under § 16.74 to include "all services,
materials to be furnished by a service provider in connection
with services, and any limited trades work involving less than
$30,000 to be done for or furnished to the state or any agency."
(Emphasis added.) In § 16.74, the legislature did not enact a
limited purchasing power.
¶24 "Service" is defined as "[t]he action or fact of
working or being employed in a particular capacity (irrespective
of whom the work is done for)." Service, Oxford English
Dictionary (2021); see also service, Black's Law Dictionary
(11th ed. 2019) ("Labor performed in the interest or under the
direction of others."). The term "contractual services"
includes the provision of work or labor to another in exchange
for compensation, under an enforceable agreement.
Unambiguously, this includes the provision of legal services
under contract.
¶25 The circuit court's statutory interpretation appears
to rely heavily on logic embodied in the noscitur a sociis
canon. However, the canon does not alter our conclusion.
Noscitur a sociis serves to read in context ambiguous terms that
could be defined literally in a manner conflicting with the
statute's plain meaning. Therefore, in the list "tacks,
staples, nails, brads, screws, and fasteners," the word
"staples" should not be read to mean "reliable and customary
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No. 2021AP802
food items." Antonin Scalia & Bryan A Garner, Reading Law: The
Interpretation of Legal Texts 196 (2012); see also Stroede v.
Soc'y Ins., 2021 WI 43, ¶¶1, 19, 397 Wis. 2d 17, 959 N.W.2d 305(interpreting a list of "possessor[s] of real property," which
included "owner, lessee, tenant, or other lawful occupant of
real property," to not encompass a patron at a bar who lacked
"possession or control over the property" (citing Wis. Stat.
§ 895.529 (2017-18)).
¶26 The term "contractual services" under Wis. Stat.
§ 16.74 is unambiguous and includes attorney services. See
Benson v. City of Madison, 2017 WI 65, ¶31, 376 Wis. 2d 35, 897
N.W.2d 16 (holding that the term "corporation" was unambiguous
and thus there was "no need to resort to the [noscitur a sociis]
canon"). Furthermore, the broad scope of "contractual services"
is in harmony with the shared meaning of "supplies, materials,
equipment, [and] permanent personal property" under § 16.74(1)
as all items in the list must, by statute, be "required within
the legislative branch." See State v. Quintana, 2008 WI 33,
¶35, 308 Wis. 2d 615, 748 N.W.2d 447 (noting that, under the
noscitur a sociis canon, a list of specific items indicated a
general common meaning which permitted an "expansive, not
restrictive" reading of the statute).
¶27 Confirming the plain meaning and statutory definition
of "contractual services," the official legislative annotation
of Wis. Stat. § 16.70(3) states that "'[c]ontractual services'
15
No. 2021AP802
include technical and professional services."10 Wis. Stat.
§ 16.70, historical note (citing 65 Wis. Op. Att'y Gen. 251
(1976)); see Madison Metro. Sch. Dist. v. Cir. Ct. for Dane
Cnty., 2011 WI 72, ¶65 n.12, 336 Wis. 2d 95, 800 N.W.2d 442(stating that, although "titles and histor[ical] notes" are not
part of statutes, "they provide valuable clues to the meaning of
statutory text" (citing Wis. Stat. § 990.001(6) (2007-08))). Of
course, attorneys are considered professionals.
¶28 The circuit court also held that the attorney services
contracts at issue were not "required within the legislative
branch" under Wis. Stat. § 16.74 because redistricting
10 The legislative annotation relies on an Attorney General
opinion from 1976, which interpreted the meaning of "contractual
services" under the version of Wis. Stat. § 16.70 that existed
at the time. 65 Wis. Op. Att'y Gen. 251 (1976); see Milwaukee
J. Sentinel v. City of Milwaukee, 2012 WI 65, ¶41, 341
Wis. 2d 607, 815 N.W.2d 367 ("The opinions of the Attorney
General are not binding on the courts but may be given
persuasive effect."). The definition in 1976 had no material
differences to the current version. See Wis. Stat. § 16.70(1975-76) (defining "contractual services" to include "all
materials and services"). In the opinion, the Attorney General
reviewed the legislative history of § 16.70 and explained that a
prior version of the statute was amended to define "contractual
services" to include "all . . . services." 65 Wis. Op. Att'y
Gen. at 255-56. When making that change, the legislature was
concerned that the prior version of the statute excluded
"technical and professional services." Id. Thus, the Attorney
General concluded that § 16.70's definition of "contractual
services" included professional services, such architectural and
engineering consulting services. Id. at 252. This legislative
history confirms the plain language of § 16.70. Teschendorf v.
State Farm Ins. Co., 2006 WI 89, ¶14, 293 Wis. 2d 123, 717
N.W.2d 258 ("[I]f the meaning of the statute is plain, we
sometimes look to legislative history to confirm the plain
meaning."). "Contractual services" under § 16.70 extends to all
professional services, including legal services.
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No. 2021AP802
litigation had not yet begun. Of course, in cases of complex
litigation, legal advice to prepare clients for upcoming court
proceedings, develop legal strategies, and mitigate litigation
risk can be of material significance. Understanding the stakes
and potential consequences of a given action——here, a
redistricting map——may serve to ensure greater legal compliance,
reduce the need for judicial intervention, and lower burdens on
the court system. There is no support found in either the text
of § 16.74 or in basic principles of litigation practice that
counseling prior to the filing of a lawsuit is not worthwhile or
helpful. In fact, it can be of equal or greater importance than
representation in subsequent legal proceedings. This is
especially true in an area such as redistricting, where multiple
levels of law from both state and federal sources present
substantial compliance difficulties to even the most astute
legal mind, and litigation is extraordinarily likely, if not
inevitable. Jensen, 249 Wis. 2d 706, ¶10 ("[R]edistricting is
now almost always resolved through litigation rather than
legislation . . . .").
¶29 Furthermore, any distinction between the existence and
nonexistence of a present lawsuit is largely unworkable. While
the legislature may have authorization to purchase legal
services under Wis. Stat. § 16.74 once a lawsuit was initiated,
under the circuit court's reasoning, the legislature would be
prohibited from hiring counsel to file a lawsuit on its behalf,
as no lawsuit would exist prior to the lawsuit being filed.
Such an interpretation is absurd. See Kalal, 271 Wis. 2d 633,
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No. 2021AP802
¶46 (stating that statutes must be interpreted "reasonably, to
avoid absurd or unreasonable results").
¶30 The parties do not dispute that Petitioners, on behalf
of the legislature, contracted with Consovoy and Mortara to
provide advice and strategic direction on redistricting
litigation. BGSJ was contracted to review "constitutional and
statutory requirements" and the "validity of any draft
redistricting legislation," as well as to assist the legislature
in redistricting-related legal proceedings.
¶31 It strains credulity to conclude that the need for
legal advice in this area was fictitious or somehow disconnected
from legitimate legislative activities. Every ten years, the
legislature is constitutionally responsible for drawing district
boundaries in this state. See Jensen, 249 Wis. 2d 706, ¶6
(noting that the Wisconsin Constitution gives "the state
legislature the authority and responsibility" to draw district
boundaries); Wis. Const. art. IV, § 3 ("[T]he legislature shall
apportion and district anew the members of the senate and
assembly . . . ."). The legislature clearly has a
constitutionally-rooted institutional interest in litigating
redistricting disputes.
¶32 The undisputed facts show that, in line with decades
of bipartisan precedent, the Senate and Assembly Committees on
Organization determined that the hiring of legal counsel to
assist with redistricting was needed. By taking these votes,
the legislature rationally took steps to make more informed
decisions in drawing maps, navigate extraordinarily complex
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No. 2021AP802
legal issues, and prepare for related litigation. As a matter
of law, there is no genuine dispute of fact that the attorney
services contracts were "required within the legislative branch"
under Wis. Stat. § 16.74. See Wis. Stat. § 802.08(2).
2. The Respondents' arguments
¶33 The Respondents' arguments on appeal move away from
the circuit court's legal reasoning. Instead, they claim that
Wis. Stat. § 16.74 contains no conferral of purchasing authority
at all. According to Respondents, some other statutory
provision must provide authority to the legislature to make
basic purchasing decisions. Under Respondents' theory, § 16.74
simply identifies which entities may make purchases for the
legislature and the procedure by which those purchases are
completed.
¶34 Wisconsin Stat. § 16.74(1) confirms that "supplies,
materials, equipment, permanent personal property and
contractual services," must be purchased by the joint committee
on legislative organization, a house of the legislature, or a
legislative service agency to the extent that the purchases are
"required within the legislative branch." By the very operation
of this provision, those entities entitled to make purchases
must have, under the statute, the legal authority to do so. If
no authority exists, the responsibility to make "purchase[s]"
under the statute would have little applicability or utility.
The statute includes no indication, explicit or implicit, that
purchasing authority is vested, defined, or limited by other
statutory provisions. For example, § 16.74(1) does not state,
19
No. 2021AP802
"If authorized" under a different statute, "[a]ll supplies,
materials, equipment, permanent personal property and
contractual services" shall be purchased. Instead, the
provision states, without ambiguity, that such goods and
services "shall be purchased" to the extent they are needed by
the legislature. Respondents fail to cite a conflicting
provision in the Wisconsin code that ties purchases under
§ 16.74 to separate statutory provisions.
¶35 In other words, for the plain text of Wis. Stat.
§ 16.74(1) to have effective meaning, the legislature must have
the authority to make purchases under the provision. This basic
principle is not foreign to our jurisprudence. For example, in
Bank of New York Mellon v. Carson, we interpreted a foreclosure
statute which stated, upon a court's finding of abandonment, a
judgment "shall be entered" which indicates that "the sale of
such mortgaged premises shall be made upon the expiration of 5
weeks from the date [of judgment]." 2015 WI 15, ¶20, 361
Wis. 2d 23, 859 N.W.2d 422 (quoting Wis. Stat. § 846.102 (2011-
12)). We interpreted the statute to provide "the circuit court
the authority to order a bank to sell the property." Id.Further, Wis. Stat. § 808.03(2) states that a civil "judgment or
order [of a circuit court] . . . may be appealed to the court of
appeals in advance of a final judgment or order" if certain
conditions are met. Naturally, we have read § 808.03(2) to
provide litigants with the ability to "appeal[] by permission."
Heaton v. Larsen, 97 Wis. 2d 379, 397, 294 N.W.2d 15 (1980).
20
No. 2021AP802
¶36 When interpreting Wis. Stat. §§ 846.102(1) and
808.03(2), we did not demand separate statutory authority for a
court to order a foreclosure sale or for a litigant to appeal by
permission of the court. Such authority was inherent in the
plain meaning and operation of the statutes. We did not read
§ 846.102(1) as solely describing the content of foreclosure
judgments, and we did not read § 808.03(2) as merely explaining
conditions precedent to appeal. Contrary to Respondents'
claims, Wis. Stat. § 16.74, like §§ 846.102(1) and 808.03(2),
does not only identify the individuals or entities who may have
legal authority to make legislative branch purchases if another
statute says as much, nor does the provision serve only to
clarify procedure for making such purchases. Instead, § 16.74
is an independent grant of legal authority by which the
legislature can buy the goods and services it needs.11
¶37 The context of Wis. Stat. § 16.74 confirms this plain
meaning. See Kalal, 271 Wis. 2d 633, ¶46 ("[S]tatutory language
11 Similarly, Article I, Section 4 of the United States
Constitution states that, "The times, places and manner of
holding elections for senators and representatives, shall be
prescribed in each state by the legislature thereof." (Emphasis
added.) Wisconsin Stat. § 16.74(1), which states
"[a]ll . . . contractual services required within the
legislative branch shall be purchased by . . . the house or
legislative service agency utilizing [the services]," uses an
almost identical linguistic structure. It is not seriously
disputed that, under the text of Article I, Section 4, states
are vested the authority to regulate the manner of federal
elections. See U.S. Term Limits, Inc. v. Thornton, 514 U.S.
779, 805 (1995) (explaining that the provision is an "express
delegation[] of power to the States to act with respect to
federal elections").
21
No. 2021AP802
is interpreted in the context in which it is used . . . .").
Section 16.74(3) states that the individuals "authorized to make
purchases or engage services under this section [16.74] may
prescribe the form of . . . contracts for the purchases and
engagements." (Emphasis added.) Similarly, § 16.74(4) states
that "bills and statements for purchases and engagements" made
"under this section" must be submitted to the DOA. (Emphasis
added.) These provisions heavily imply that § 16.74 provides an
independent basis by which the legislature can make purchases.
It would be deeply counterintuitive for § 16.74 to specify that
purchases are made under its own terms when, in fact, a
completely separate, unidentified statute confers the needed
legal authority to make the purchases. By stating that
purchases are made under § 16.74, the legislature confirmed
that, indeed, purchases can be made under the statute.
Respondents' arguments are not supported by the text of § 16.74
and cannot be accepted. See Kalal, 271 Wis. 2d 633, ¶45 ("If
the meaning of the statute is plain, we ordinarily stop the
inquiry." (quotations omitted)).12
12It is noteworthy that Wis. Stat. § 16.74 also provides
the statutory basis for making judicial branch purchases. See
§ 16.74(1) ("All supplies, materials, equipment, permanent
personal property and contractual services required within the
judicial branch shall be purchased by the director of state
courts . . . ."). An almost identically worded statute provides
the DOA with the authority to complete necessary purchases "for
all [executive branch] agencies." Wis. Stat. § 16.71(1); see,
e.g., Glacier State Dist. Servs. v. DOT, 221 Wis. 2d 359, 362,
585 N.W.2d 652 (Ct. App. 1998) (noting that all purchases for
"the de-icing of state highways" in Wisconsin were made under
§ 16.71). If Respondents' interpretation were correct, legal
uncertainty would surround basic purchases by the legislative,
22
No. 2021AP802
¶38 Putting aside the question of purchasing authority
under Wis. Stat. § 16.74, Respondents claim that a more specific
statute for hiring attorneys applies and thus, Petitioners
cannot rely on § 16.74 to enter into the contracts with
Consovoy, Mortara, and BGSJ. Wisconsin Stat. § 13.124 states
that the senate majority leader or the assembly speaker, or
both, may at their "sole discretion," "obtain legal counsel
other than from the department of justice . . . in any action in
which the [senate or assembly] is a party or in which the
interests of the [senate or assembly] are affected, as
determined by the [senate majority leader or speaker]."
§ 13.124(1)(b), (2)(b). It is true that "where two conflicting
statutes apply to the same subject, the more specific statute
controls." Lornson v. Siddiqui, 2007 WI 92, ¶65, 302
Wis. 2d 519, 735 N.W.2d 55; see also Scalia & Garner, supra ¶25,
at 183 ("The general/specific canon . . . deals with what to do
when conflicting provisions simply cannot be
reconciled . . . ."). However, "conflicts between different
statutes, by implication or otherwise, are not favored and will
not be held to exist if they may otherwise be reasonably
construed." State ex rel. Hensley v. Endicott, 2001 WI 105,
¶19, 245 Wis. 2d 607, 629 N.W.2d 686.
¶39 Here, there is no statutory conflict that bars the use
of Wis. Stat. § 16.74 to purchase attorney services. Under a
judicial, and executive branches. Under what authority, for
instance, would courts be able to buy note pads on which judges
and clerks write?
23
No. 2021AP802
plain reading of Wis. Stat. § 13.124, the provision applies only
where there is an "action" in which the senate or assembly are
parties, or their interests are affected. The provision also
vests authority solely in the discretion of the senate majority
leader and assembly speaker. By contrast, § 16.74 grants the
legislature authority to purchase attorney services, but only if
approved by "the joint committee on legislative organization or
by the house or legislative service agency" using the services.
There is no limitation in § 16.74 that the purchase be made for
an "action" like in § 13.124. Thus, § 13.124 provides a quick,
streamlined basis for the legislature's leadership to obtain
counsel for the legislature in "any action." By contrast,
§ 16.74 allows each house of the legislature to obtain counsel
as needed, irrespective of whether an "action" exists. Sections
13.124 and 16.74 are different statutes that apply in distinct
circumstances. They provide separate statutory authority for
the hiring of attorneys, and the general/specific cannon does
not apply.13 See Lornson, 302 Wis. 2d 519, ¶65 (requiring
"conflicting statutes"); Endicott, 245 Wis. 2d 607, ¶19 (noting
that interpretations rendering statutes in conflict are
disfavored in the law).
¶40 In addition, Respondents claim that, even if Wis.
Stat. § 16.74 provides the legislature authority to contract for
We reserve, without deciding, the question of whether
13
Wis. Stat. § 13.124 provided the Petitioners authority,
independent of Wis. Stat. § 16.74, to enter into attorney
services contracts prior to the initiation of a redistricting
lawsuit.
24
No. 2021AP802
attorney services, Petitioners did not comply with procedural
requirements. Under § 16.74(1), purchases must be made by "the
joint committee on legislative organization or by the house or
legislative service agency utilizing the" goods or services.
"Contracts for purchases by the senate or assembly shall be
signed by an individual designated by the organization committee
of the house making the purchase." § 16.74(2)(b).
¶41 Here, the undisputed facts show that the Senate and
Assembly Committees on Organization, who were designated by
their respective houses to review and complete purchases for
attorney services, vested the Petitioners with authority to
enter into the contracts with Consovoy, Mortara, and BGSJ. On
January 5, 2021, the Committee on Senate Organization approved
the hiring of attorneys for redistricting and explicitly granted
Senator LeMahieu authority to enter into contracts. Further, on
March 24, 2021, the Committee on Assembly Organization vested
Speaker Vos with the authority to hire counsel for
redistricting, noting that Speaker Vos had "always [been]
authorized" to contract for attorney services.
¶42 Respondents note that the agreement with Consovoy and
Mortara was signed on December 23, 2020, and the Senate and
Assembly Committees on Organization approved the hiring of
counsel after that date, on January 5 and March 24, 2021,
respectively. Therefore, the legislature indisputably approved
the attorney agreements signed by Petitioners in January and
March 2021. It is well established that a contract is valid,
even if originally signed by an agent without authority, when
25
No. 2021AP802
the principal subsequently ratifies the agreement and agrees to
be bound by its terms. See M&I Bank v. First Am. Nat'l Bank, 75
Wis. 2d 168, 176, 248 N.W.2d 475 (1977) (explaining that
"[r]atification is the manifestation of intent to become party
to a transaction purportedly done on the ratifier's account");
Restatement (Second) of Contracts §380 cmt. a (1981) ("A party
who has the power of avoidance may lose it by action that
manifests a willingness to go on with the contract."); see,
e.g., Milwaukee J. Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439,
768 N.W.2d 700 (reviewing a public records law challenge to a
statute enacted by the legislature to ratify a previously
negotiated collective bargaining agreement). The legislature
adopted the contracts at issue, even given the fact that it did
so after the agreements were signed. The agreements are valid
and enforceable.
¶43 Respondents also claim that the contracts are void
because the legislature failed to provide adequate information
to the DOA, and the payments to Consovoy, Mortara, and BGSJ were
not properly audited. Wisconsin Stat. § 16.74(4) states that
"[e]ach legislative and judicial officer shall file all bills
and statements for purchases and engagements made by the officer
under this section with the secretary [of the DOA], who shall
audit and authorize payment of all lawful bills and statements."
¶44 It is undisputed that the legislature submitted
information on bills from the relevant attorney services
contracts to the DOA. Petitioners submitted undisputed evidence
that, as with all purchases for the legislature, including
26
No. 2021AP802
attorney services, information from the bills was inputted into
a software program, PeopleSoft. A business manager submitted
basic accounting details, such as the name of the billing
entities, transaction-specific invoice codes, invoice dates, the
amount of funds needed, and the general accounting code
describing the subject matter of the transaction, i.e., legal
services. The information was reviewed by at least two
employees at the legislature, including the chief clerks, and
was then transferred to the DOA for review. The DOA received
the information and issued payments. The uncontested facts show
that the legislature properly allowed the DOA to audit and
review "bills and statements" for the attorney services at
issue. Wis. Stat. § 16.74(4).
¶45 Respondents cite a response to a public records
request provided by DOA's Chief Legal Counsel, Ann Hanson, which
stated that the DOA did not have access to bills and statements
that originated from Consovoy and BGSJ. However, DOA's response
also indicated that the DOA was given payment requests and, in
fact, issued payments. Clearly, at the time of the payments,
DOA believed the legislature had provided sufficient information
to review the requests and comply with Wis. Stat. § 16.74's
procedural requirements. As with all purchasing requests
submitted by the legislature, DOA had online access to the
information taken from the attorney services bills submitted
through PeopleSoft. The fact that the legislature, working with
the DOA, streamlined the acquisitions process and transitioned
to software programs in lieu of submitting original billing
27
No. 2021AP802
statements is of no legal significance. As required by § 16.74,
the DOA had access to basic accounting information for the
purchases at issue, and, predictably, the DOA issued payments.
¶46 To the extent that DOA failed to perform a proper
audit under Wis. Stat. § 16.74 of the legislature's purchasing
requests, Respondents must direct their complaint toward the
DOA, not the legislature. Section 16.74(4) unambiguously vests
the duty to "audit and authorize payment[s]" with the DOA.
Respondents cite no legal authority that the legislature had the
obligation or responsibility to oversee DOA's internal auditing
process. In this case, DOA received billing requests and
information, responded to the legislature, and issued payments.
If, in doing so, DOA failed to fully perform its administrative
duties, purchasing by the legislature under § 16.74 cannot be
ground to a halt.14
¶47 In all, the legislature complied with Wis. Stat.
§ 16.74 and received the payments it properly approved,
validated, and requested. Consequently, as a matter of law,
summary judgment in Petitioners' favor is warranted.15
Furthermore, any failure of those authorized to make
14
purchases under Wis. Stat. § 16.74 to provide information to the
DOA for audit would implicate the legality of payments for the
legal services contracts, not the legality of the contracts
themselves. There is no substantiated argument that failing to
send proper documentation to the DOA would render the contracts
unenforceable. While Respondents filed this lawsuit in part to
bar payments under the contracts, if Petitioners violated
§ 16.74's audit procedures as Respondents allege, the separate
remedy of declaring the contracts void ab initio would not be
appropriate.
15 The dissent does not dispute that attorney services
28
No. 2021AP802
B. The Standard For Stays Pending Appeal
¶48 After awarding summary judgment in Respondents' favor,
the circuit court in this case enjoined Petitioners from
constitute "contractual services" under Wis. Stat. § 16.74, nor
does it claim, as do the Respondents, that § 16.74 fails to
provide independent legal authority to complete legislative
purchases. Instead, the dissent advances a distinct statutory
interpretation undeveloped by Respondents on appeal. It notes
that § 16.74(1) permits purchases by "the joint committee on
legislative organization or by the house or legislative service
agency utilizing" the goods or services, and it claims that
neither the joint committee nor the senate or assembly as a
whole voted to approve the contracts at issue. Yet, the statute
does not bar the senate or assembly from designating committees
to complete purchases on behalf of the two houses. It is well
understood that the legislature adopts and utilizes internal
rules to "govern[] how it operates." Custodian of Recs. for
Legis. Tech. Servs. Bureau v. State, 2004 WI 65, ¶28, 272
Wis. 2d 208, 680 N.W.2d 792; see also League of Women Voters of
Wis. v. Evers, 2019 WI 75, ¶39, 387 Wis. 2d 511, 929 N.W.2d 209(noting that the legislature has the discretion "to determine
for itself the rules of its own proceedings"); see, e.g., Flynn
v. DOA, 216 Wis. 2d 521, 531-32, 576 N.W.2d 245 (1998)
(explaining that the legislature delegated to a committee the
authority to narrow and eliminate alternatives of proposed
legislation). The senate and assembly may, as was done in this
case, appoint committees on organization to approve necessary
purchases on behalf of the two houses. Under the dissent's
reading, if purchases are not made through the joint committee
on organization, the entirety of each house would be forced to
vote on specific, and often mundane, legislative purchases. The
text of § 16.74 does not require the legislature to engage in
such inefficient practices. In fact, § 16.74 expressly
contemplates the designation of committees to facilitate
necessary purchasing. The statute states that contracts for
purchases by either house must be signed "by an individual
designated by the organization committee of the house making the
purchase." § 16.74(2)(b) (emphasis added); see State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory language is
interpreted in the context in which it is used . . . ."). That
is exactly what occurred in this case.
29
No. 2021AP802
performing the attorney-services contracts signed with Consovoy,
Mortara, and BGSJ. In addition, the circuit court declined to
issue a stay of the injunction pending appeal. In July 2021, we
reversed that decision in an unpublished order. See Waity v.
LeMahieu, No. 2021AP802, unpublished order (Wis. July 15, 2021)
(granting motion for relief pending appeal). We now take the
opportunity to explain our decision.
¶49 Courts must consider four factors when reviewing a
request to stay an order pending appeal:
(1) whether the movant makes a strong showing
that it is likely to succeed on the merits of the
appeal;
(2) whether the movant shows that, unless a stay
is granted, it will suffer irreparable injury;
(3) whether the movant shows that no substantial
harm will come to other interested parties; and
(4) whether the movant shows that a stay will do
no harm to the public interest.
See State v. Scott, 2018 WI 74, ¶46, 382 Wis. 2d 476, 914
N.W.2d 141. At times, this court has also noted that
"[t]emporary injunctions are to be issued only when necessary to
preserve the status quo." Werner v. A.L. Grootemaat & Sons,
Inc., 80 Wis. 2d 513, 520, 259 N.W.2d 310 (1977). The relevant
factors "are not prerequisites but rather are interrelated
considerations that must be balanced together." State v.
Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995).
¶50 On appeal, a circuit court's decision to grant or deny
a motion to stay is reviewed under the erroneous exercise of
30
No. 2021AP802
discretion standard. Id. at 439. The circuit court's decision
must be affirmed if it "examined the relevant facts, applied a
proper standard of law, and using a demonstrative rational
process, reached a conclusion that a reasonable judge could
reach." Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶19,
251 Wis. 2d 68, 640 N.W.2d 788. In this case, the circuit court
erroneously exercised its discretion by applying an incorrect
legal standard.
¶51 First, in reviewing whether Petitioners made "a strong
showing that [they were] likely to succeed on the merits of the
appeal," the circuit court repeatedly referred to its own legal
reasoning employed when it granted summary judgment and issued
an injunction in favor of Respondents. The circuit court noted
that it "disagree[d] with [Petitioners'] legal analysis." It
stated it reviewed the caselaw cited by Petitioners and
"reaffirm[ed]" its conclusions of law. In the circuit court's
view, Petitioners had, in their motion for a stay, "re-
present[ed] . . . what was originally before [the circuit
court]," and the circuit court would "merely be repeating what
[it] already set forth" in its decision to award summary
judgment and enjoin enforcement of the relevant contracts.
¶52 The circuit court's analysis was flawed. When
reviewing a motion for a stay, a circuit court cannot simply
input its own judgment on the merits of the case and conclude
that a stay is not warranted. The relevant inquiry is whether
the movant made a strong showing of success on appeal.
Gudenschwager, 191 Wis. 2d at 440. Of course, whenever a party
31
No. 2021AP802
is seeking a stay, there has already been a determination at the
trial level adverse to the moving party. If the circuit court
were asked to merely repeat and reapply legal conclusions
already made, the first factor would rarely if ever side in
favor of the movant. As we explained in our July 15, 2021,
order, "very few stays pending appeal would ever be entered
because almost no circuit court judge would admit on the record
that he [or] she could have reached a wrong interpretation of
the law." Waity, No. 2021AP802, unpublished order, at 9.
¶53 When reviewing the likelihood of success on appeal,
circuit courts must consider the standard of review, along with
the possibility that appellate courts may reasonably disagree
with its legal analysis. For questions of statutory
interpretation, as are presented in this case, appellate courts
consider the issues de novo. See Estate of Miller, 378
Wis. 2d 358, ¶25. Here, the circuit court relied on its own
interpretation of statutes such as Wis. Stat. § 16.74, which
neither this court nor the court of appeals had previously
interpreted, to conclude that an appeal would be meritless.
Instead, the circuit court should have considered how other
reasonable jurists on appeal may have interpreted the relevant
32
No. 2021AP802
law and whether they may have come to a different conclusion.16
If the circuit court had done so, its stay analysis would have
been different. As explained above, under the plain language of
§ 16.74, the legislature had authority to hire counsel for
redistricting, and reasonable judges on appeal could easily have
disagreed with the circuit court's holdings.
¶54 When reviewing the likelihood of success on appeal,
"the probability of success that must be demonstrated is
inversely proportional to the amount of irreparable injury the
plaintiff will suffer absent the stay." Gudenschwager, 191
Wis. 2d at 441. Thus, the greater the potential injury, the
less a movant must prove in terms of success on appeal.
However, "the movant is always required to demonstrate more than
the mere possibility of success on the merits." Id. (quotations
omitted).
¶55 In this case, the risk of harm to Petitioners absent a
stay was substantial and irreparable. The circuit court
concluded that the legislature did not suffer harm because they
could obtain advice on redistricting from other government
By contrast, appeals of decisions left primarily to the
16
discretion of circuit courts, such as the length of a criminal
sentence or the admissibility of evidence under Wis. Stat.
§ 904.03, have a smaller likelihood of success than appeals
requiring de novo interpretation of statutes. See State v.
Taylor, 2006 WI 22, ¶17, 289 Wis. 2d 34, 710 N.W.2d 466 ("A
circuit court exercises its discretion at sentencing, and
appellate review is limited to determining if the court's
discretion was erroneously exercised."); State v. Plymesser, 172
Wis. 2d 583, 595, 493 N.W.2d 367 (1992) ("Section 904.03 gives a
judge discretion to exclude evidence if its probative value is
substantially outweighed by the danger of unfair prejudice.").
33
No. 2021AP802
actors such as the Attorney General. However, as explained
above, redistricting presents extraordinarily complex questions
of state and federal law. It is a process that takes place only
every ten years; it can have a substantial effect on elections
and the right to vote; and it is almost inevitable that
redistricting will be litigated. Contrary to the circuit
court's belief, the legislature's determination that it needed
assistance from qualified specialists, outside the Attorney
General's office, was abundantly reasonable.
¶56 The circuit court also mentioned in its harm analysis
that litigation surrounding redistricting had not yet begun. As
thoroughly discussed above, pre-litigation counsel can be
indispensable when potential legislation implicates significant
legal questions and litigation is highly likely.
¶57 When considering potential harm, circuit courts must
consider whether the harm can be undone if, on appeal, the
circuit court's decision is reversed. If the harm cannot be
"mitigated or remedied upon conclusion of the appeal," that fact
must weigh in favor of the movant. Waity, No. 2021AP802,
unpublished order, at 11 (quoting Serv. Empls. Int'l Union v.
Vos, No. 2019AP622, unpublished order, at 6-7 (Wis. June 11,
2019)). Here, due to the circuit court's order, the legislature
was deprived of counsel of its choice for two and a half months.
In the meantime, the demands of redistricting continued as the
legislature prepared to draw new maps and the risk of litigation
materialized. The circuit court failed to consider that, if its
order were overturned, the legislature could not get legal
34
No. 2021AP802
advice "back" for this critical time in which an injunction was
in effect. Because the harm the legislature would experience
absent a stay was significant, Petitioners were required to show
only "more than the mere possibility of success on the merits."
Gudenschwager, 191 Wis. 2d at 441 (quotations omitted). The
Petitioners clearly met that standard.
¶58 By comparison, the harm to Respondents was minimal.
In conducting a stay analysis, courts consider whether the
movant "shows that no substantial harm will come to other
interested parties." Scott, 382 Wis. 2d 476, ¶46. However,
similar to the circuit court's consideration of harm to the
movant, courts consider the period of time that the case is on
appeal, not any harm that could occur in the future. Courts
must consider the extent of harm the non-movant will experience
if a stay is entered, but the non-movant is ultimately
"successful in having the . . . injunction affirmed" and
reinstated. Waity, No. 2021AP802, unpublished order, at 11
(quoting Serv. Empls. Int'l Union, No. 2019AP622, unpublished
order, at 6-7). Thus, the stay analysis is not a mere
repetition of any harm analysis conducted by the circuit court
when it originally issued an order granting relief, which may
consider generally all future harms to the non-movant. See
Kocken v. Wis. Council 40, 2007 WI 72, ¶27 n.12, 301
Wis. 2d 266, 732 N.W.2d 828 (explaining that "[a] permanent
injunction will not be granted unless there is the threat of
irreparable injury that cannot be compensated with a remedy at
law").
35
No. 2021AP802
¶59 Here, the circuit court reasoned that Respondents were
substantially harmed because "[t]ens, if not hundreds of
thousands of [taxpayer] dollars . . . will be spent" under the
contracts at issue. First, in making this finding, the circuit
court failed to specify or tailor its cost estimates to expenses
that would have been incurred while the case was on appeal, as
opposed to over the course of the entire life of the contracts,
e.g., until redistricting disputes are settled. Second, the
harm alleged by Respondents in this case was the loss of
taxpayer money. As three individuals out of a state population
of 5.8 million, Respondents' harm as taxpayers was orders of
magnitude less than any final dollar amount Petitioners may have
improperly spent. The circuit court failed to consider this
basic fiscal reality, which substantially reduced any potential
harm to the Respondents. Furthermore, the circuit court failed
to consider whether any financial losses to Respondents, to the
extent they existed, could be recovered through a disgorgement
remedy.
¶60 Finally, when reviewing the fourth factor, harm to the
public interest, the circuit court reiterated that the contracts
at issue would wrongfully expend public monies. The potential
for unauthorized expenditures of public funds was a valid
consideration of the circuit court. However, the circuit court
failed also to address the public interest served in allowing
the legislature to obtain needed legal advice for redistricting.
The legislature has the constitutional responsibility to set
district boundaries, and the process can have a material effect
36
No. 2021AP802
on the rights of Wisconsin voters. See Wis. Const. art. IV,
§ 3. Consequently, the public is better served when the
legislature has effective representation in performing
redistricting and preparing for subsequent litigation. This
interest was more significant, during the time period of appeal,
than the public interest in preventing allegedly unauthorized
expenditures.
¶61 In all, the circuit court erroneously exercised its
discretion by refusing to stay its injunction pending appeal.
See Lane, 251 Wis. 2d 68, ¶19.
IV. CONCLUSION
¶62 Petitioners, on behalf of the legislature, entered
into contracts for legal advice regarding the decennial
redistricting process and any resulting litigation. Respondents
claim that Petitioners lacked authority to enter into the
contracts, and they ask us to declare the agreements void ab
initio. Because Petitioners had authority under Wis. Stat.
§ 16.74 to "purchase[]" for the legislature "contractual
services," the agreements were lawfully entered.
¶63 The circuit court's decision to enjoin enforcement of
the contracts was improper. We reverse the circuit court's
grant of summary judgment in Respondents' favor, and instead, we
remand this case to the circuit court with instructions to enter
judgment in favor of Petitioners. In addition, we clarify the
standard for granting a stay of an injunction pending appeal,
which the circuit court in this case incorrectly applied.
37
No. 2021AP802
By the Court.—The judgment and the order of the circuit
court are reversed, and the cause is remanded with instructions.
38
No. 2021AP802.bh
¶64 BRIAN HAGEDORN, J. (concurring). I join the
majority opinion. I write separately, however, to respond to
the dissent's misinterpretation of the majority opinion's stay
analysis. In a number of cases that have crossed our desks,
circuit courts rule against a party, and then, pro forma,
conclude their ruling means there is little to no likelihood of
success on appeal and deny a stay. That is what happened here,
and this improper understanding of the law is why we reversed
the circuit court's stay decision. The dissent misreads the
court's discussion of this problem as if the majority is setting
forth a new standard. It is not.
¶65 We adopted the Gudenschwager test to guide the
determination of whether to grant a stay pending appeal.1 The
relevant factors——which encompass the likelihood of success on
the merits of the appeal, the anticipated harms to the parties,
and harm to the public——"are not prerequisites."2 Rather, the
factors constitute a balancing test of "interrelated
considerations" that call for the court's considered judgment.3
Of particular relevance here, the likelihood of success on
appeal a movant must show "is inversely proportional to the
amount of irreparable injury the [movant] will suffer absent the
stay"——i.e., a sliding scale.4 A high degree of harm paired with
1State v. Gudenschwager, 191 Wis. 2d 431, 440, 529
N.W.2d 225 (1995) (per curiam).
2 Id.3 Id.4 Id. at 441.
1
No. 2021AP802.bh
a lower likelihood of success on appeal may be sufficient to
grant a stay.5 And the higher the likelihood of success on
appeal, the less pertinent the harm to the movant becomes.6
¶66 The dissent suggests that under the majority's logic,
a stay must always be granted when it is possible an appellate
court might disagree on a novel question of law. Incorrect.
All the majority says on this point is that the circuit court's
stay analysis should account for the standard of review on
appeal. The dissent, in contrast, seems to think that if a
court disagrees with a party's legal argument, a stay will
rarely be appropriate. But that is not the law.
¶67 This case is a classic example of when the circuit
court should have granted a stay pending appeal despite its
conclusion on the merits. Denying a stay deprived the
legislature of the attorneys of its choice during a time it
concluded legal representation was necessary. This was a
substantial harm. Attorneys are not fungible. The attorney-
client relationship is based on trust, and the loss of timely
counsel from a trusted attorney is a real deprivation. The harm
to the Respondents and the public, on the other hand, was rooted
entirely in dollars and cents——allegedly unauthorized
contractual payments. This is not nothing, but it's not much,
at least in this context. Under these facts, this does not
Though "the movant is always required to demonstrate more
5
than a mere 'possibility' of success on the merits." Id.6 Id.2
No. 2021AP802.bh
amount to the kind of "substantial harm" Gudenschwager
contemplates. Even accepting the circuit court's disagreement
with the Petitioners' arguments, they surely had some nontrivial
likelihood of persuading a higher court that their legal
arguments were correct.7 Here the Petitioners' substantial harm
was paired with at least a reasonable likelihood of success on
appeal, and granting a stay would bring limited harm to the
Respondents and the public. Therefore, a stay was most
appropriate.8
¶68 More importantly, the message to courts moving forward is
that the likelihood of success on appeal is a flexible, sliding-
7The dissent states that when cases are not "close calls,"
the likelihood of success on appeal will be low. Dissent, ¶93.
True enough. But this isn't one of those cases. Even without
the benefit of our decision today, the circuit court should have
recognized another court could reasonably disagree with its
interpretation of Wis. Stat. § 16.74. Before the circuit court,
no one argued for the reading of § 16.74 it articulated. That
should have been a clue that another court might read the
statute differently.
8The dissent is correct that appellate courts should not
reweigh and second guess a circuit court's good faith attempts
to balance the factors. Our review is under the erroneous
exercise of discretion standard. Gudenschwager, 191 Wis. 2d at
439-40. However, the circuit court in this case applied the
wrong standard of law which is, by definition, an erroneous
exercise of discretion. See State v. Carlson, 2003 WI 40, ¶24,
261 Wis. 2d 97, 661 N.W.2d 51 ("[A]n exercise of discretion
based on an erroneous application of the law is an erroneous
exercise of discretion."). The circuit court's error was not
that it continued to agree with its previously announced merits
analysis. The circuit court's error was thinking that
referencing to its prior decision was all it needed to say about
the likelihood of success on appeal.
3
No. 2021AP802.bh
scale factor to be balanced against the relevant harms.9 Rather
than conduct this analysis, the circuit court here treated the
likelihood of success on appeal as shorthand for its own prior
merits decision. Applying the test correctly, it should not be
uncommon, particularly when faced with a difficult legal
question of first impression, to rule against a party but
nonetheless stay the ruling.
9 The dissent's fundamental error is failing to appreciate
that the likelihood of success is a sliding-scale factor. The
dissent seems to think some unnamed threshold of likely success
is necessary. It finds confusing the majority's recitation of
black-letter law that some chance of success is required, yet no
particular threshold is needed. The dissent's bewilderment
notwithstanding, this isn't contradictory at all. It is, and
has been, the law.
4
No. 2021AP802.rfd
¶69 REBECCA FRANK DALLET, J. (dissenting). As leaders
of the legislature, Petitioners have a say in what the law is,
but they are, like everyone else, bound by the laws the
legislature enacts. Thus, Petitioners are bound by Wis. Stat.
§ 16.74, which requires that all contractual services "shall be
purchased by the joint committee on legislative organization
[JCLO] or by the house . . . utilizing the . . . services."1 The
record here demonstrates that Petitioners' contracts with
outside counsel were neither entered into nor later ratified by
the JCLO or the house using those services, and therefore the
contracts are invalid. In ignoring this statutory requirement,
the majority wrongly allows Petitioners to exercise purchasing
authority they don't have, thereby eliminating a safeguard
against the misuse of taxpayer dollars.
¶70 I also disagree with the majority's novel application
of the law regarding stays pending appeal. It reduces what has
traditionally been a four-factor balancing test to two
questions: (1) is the issue being appealed subject to de novo
review?; and (2) would the court of appeals or this court likely
grant a stay? In doing so, the majority undermines circuit
courts' discretion to weigh the equities of each case while
providing no guidance for how to implement its unprecedented
approach.
1Legislative service agencies, such as the Legislative
Reference Bureau, can also purchase contractual services, but no
such agency is involved in this case.
1
No. 2021AP802.rfd
I
¶71 Petitioners raise four possible sources of authority
for the legal-services contracts they entered into with outside
counsel: the Wisconsin Constitution, Wis. Stat. § 20.765,
§ 13.124, and § 16.74. Because the majority opinion's
conclusion rests entirely on § 16.74, I focus on that statute
before touching on the other three sources.
A
¶72 Wisconsin Stat. § 16.74 controls who may purchase
"contractual services" and who may sign the contracts for those
services. Subsection (1) states that "[a]ll . . . contractual
services required within the legislative branch shall be
purchased by the joint committee on legislative organization or
by the house . . . utilizing the . . . services." This is the
sole provision in § 16.74 that authorizes purchases of
contractual services within the legislature, and it exhaustively
identifies the entities that may do so: the JCLO or the house
2
No. 2021AP802.rfd
using the services (the senate or the assembly).2 For
contractual services that only the senate or the assembly will
use, § 16.74(2)(b) provides that those contracts "shall be
signed by an individual designated by the organization committee
of the house making the purchase." See also id. (adding that
"contracts for other legislative branch purchases shall be
signed by an individual designated by" the JCLO).
Subsection (2)(b) is not an authorization to make purchases; it
simply identifies who may sign a contract on the senate's or the
assembly's behalf when either house purchases services under
subsec. (1), saving every senate or assembly member from having
to sign individually.
¶73 I agree with the majority opinion that legal services
are "contractual services," as that term is defined broadly in
There is at least some surface-level tension between the
2
text of § 16.74(1) and that of § 16.74(3) in that the latter
implies that a legislative "officer" may be authorized to
purchase contractual services. See § 16.74(3) ("Each
legislative and judicial officer who is authorized to make
purchases or engage services under this section may prescribe
the form of requisitions or contracts for the purchases and
engagements."). Nowhere in § 16.74, however, is a legislative
officer authorized to do so (a judicial officer——the director of
state courts——is authorized to make purchases or engage services
under § 16.74(1)). Nevertheless, there is no contradiction
between the two subsections as subsec. (3) does not authorize
anyone to purchase contractual services; rather, it provides
that those who are so authorized may dictate the form of
requisitions or contracts for purchases of those services. The
only subsection that authorizes anyone to actually purchase
contractual services is subsec. (1).
3
No. 2021AP802.rfd
§ 16.70(3) to include "all services."3 And no party argues that
these legal services are not "required within the legislative
branch." See § 16.74(1). The legal-services contracts are not
valid, however, unless they were purchased by the JCLO or the
specific house utilizing the services.
¶74 A careful review of the record reveals that they were
not. The record contains no action by the JCLO, the senate, or
the assembly to purchase these services. A review of the
legislature's journals reveals the same. See, e.g., Medlock v.
Schmidt, 29 Wis. 2d 114, 121, 138 N.W.2d 248 (1965) (the
legislature's records are "properly the subject of judicial
notice"). They contain no legislative act from the JCLO, the
senate, or the assembly approving the legal-services contracts.4
Without such evidence, there is no factual basis for the
majority opinion's conclusion that these contracts are valid
under § 16.74(1). The majority suggests that the senate or
The
3 majority opinion's reasoning is correct but
inconsistent with the court's holding in James v. Heinrich, 2021
WI 58, 397 Wis. 2d 516, 960 N.W.2d 350. There, despite no
textual limitation on the phrase "all measures necessary to
prevent, suppress, and control communicable disease," the
majority wrongly held that it "cannot be" that "all" such
measures means "any" measures. See id., ¶¶21–22. Here, the
majority correctly reaches the opposite conclusion, explaining
that "all" means "all." See majority op., ¶23; see also James,
397 Wis. 2d 516, ¶70 (Dallet, J., dissenting) (explaining that
the court may not read into a statute a "phantom limitation").
Section 16.74 does not specify the mechanics of how the
4
senate or assembly must act in order to purchase contractual
services. Regardless of what compliance looks like, however,
there is no evidence of any action by either house in this case.
4
No. 2021AP802.rfd
assembly could skirt this statutory requirement by simply
adopting an internal rule appointing their respective
organization committees to approve contractual-services
purchases. But that never happened——and even if it had, our
precedent makes clear that internal rules cannot trump explicit
statutory restrictions. See White Constr. Co. v. City of
Beloit, 178 Wis. 335, 338, 190 N.W. 195 (1922) (explaining that
governmental bodies "may enter into a valid contract in the way
specified by law and not otherwise").
¶75 To be sure, the senate and the assembly's separate
committees on organization purported to approve the contracts,
but those committees have no authorization under § 16.74(1) to
do so. The majority attempts to sidestep that problem by
treating "the organization committee of the house" in
§ 16.74(2)(b) and "the house" in § 16.74(1) as one and the same.
That interpretation is flawed in two ways. First, "the house"
and "the organization committee of the house" have different
meanings and refer to different things. See State v. Matasek,
2014 WI 27, ¶¶17–21, 353 Wis. 2d 601, 846 N.W.2d 811(reiterating that when the legislature uses different terms in
the same or a closely related statute, we should presume that
the terms have different meanings). "The house" refers to
either of the two houses that constitute the legislature: the
senate or the assembly. See Wis. Const. art. IV. "The
organization committee of the house," on the other hand, refers
to the senate's or the assembly's organization committee, both
of which are defined by rule and are made up of certain members
5
No. 2021AP802.rfd
of the senate and assembly leadership, respectively. See
Assembly Rule 9(3) (2021); Senate Rule 20(1) (2021). Simply
put, the senate organization committee is not the senate; the
assembly organization committee is not the assembly.
¶76 Section 16.74 makes the distinction between "the
house" and "the organization committee of the house" even
clearer by explicitly authorizing each house and each house's
organization committee to do different things. Each house is
authorized to purchase services under § 16.74(1), while the
organization committees of those houses are authorized only to
designate a person to sign those contracts under § 16.74(2)(b).
An authorization to sign contracts is not the same as an
authorization to purchase services. If it were, the first
sentence of § 16.74(2)(b) would make no sense: "Contracts for
purchases by the senate or assembly shall be signed by an
individual designated by the organization committee of the house
making the purchase." The text of § 16.74 therefore makes clear
that a house's organization committee cannot make or approve
purchases for contractual services.
¶77 Second, there is no statutory basis for the majority's
assertion that the senate and assembly organization committees
were "designated by their respective houses" to contract with
outside counsel, or that those committees "vested" Petitioners
with the authority to enter into the contracts. See majority
op., ¶41. Nowhere does § 16.74(1) authorize either house to
designate its respective organization committee to exercise that
authority. Therefore, neither house may do so. See Fed. Paving
6
No. 2021AP802.rfd
Corp. v. City of Wauwatosa, 231 Wis. 655, 657–59, 286 N.W. 546(1939); White Constr. Co., 178 Wis. at 338. If the legislature
had wanted to permit such designation, it would have done so
explicitly——just as it did regarding purchase requests and
contract signatories in § 16.74(2). See § 16.74(2)(a) (purchase
requisitions "shall be signed by the cochairpersons of the
[JCLO] or their designees for the legislature, by an individual
designated by either house of the legislature for the house, or
by the head of any legislative service agency, or the designee
of that individual, for the legislative service agency")
(emphases added); § 16.74(2)(b) (same regarding who must sign
contracts); see also, e.g., Kimberly-Clark Corp. v. Public Serv.
Comm'n, 110 Wis. 2d 455, 463, 329 N.W.2d 143 (1983) (explaining
that when one statute contains a provision and a similar statute
omits the same provision, the court must not read in the omitted
provision). And, contrary to the majority's baseless claim,
nothing in the record indicates that either house's organization
committee was in fact designated to purchase contractual
services. Lastly, because neither the assembly's nor the
senate's organization committee has purchasing authority under
§ 16.74(1), they cannot "vest" their non-existent authority in
Petitioners. See Wis. Carry, Inc. v. City of Madison, 2017
WI 19, ¶¶23, 28, 373 Wis. 2d 543, 892 N.W.2d 233 (a government
body "cannot delegate what it does not have").
¶78 For similar reasons, the majority's assertion that the
"legislature" ratified the contracts also fails. The majority
claims that, § 16.74(1) notwithstanding, the contracts are valid
7
No. 2021AP802.rfd
because the senate and the assembly's organization committees
"adopted the contracts at issue," thereby ratifying them. See
majority op., ¶42. But when a government entity enters a
contract "without [proper] authority," as Petitioners did here,
"the acts relied upon for ratification must be sufficient to
have supported a contract originally." See Ellerbe & Co. v.
City of Hudson, 1 Wis. 2d 148, 155–58, 83 N.W.2d 700 (1957);
Fed. Paving Corp., 231 Wis. at 657 (a government body must
ratify a contract "with the formality required by statute to
make [the] contract"). That means that only the JCLO or the
house utilizing the services could ratify Petitioners' contracts
with outside counsel because only those entities are authorized
to form the contracts in the first place. And, as explained
above, the record contains no action by any necessary body
regarding these contracts.
¶79 There is therefore no basis for the majority opinion's
conclusion that the contracts are valid under § 16.74.
B
¶80 Petitioners offer three alternative sources of
authority for the contracts. The first two——the Wisconsin
Constitution and Wis. Stat. § 20.765——say nothing about the
issue. Setting aside that both sources speak only to the
legislature as a whole and not Petitioners specifically,
Petitioners point to no language in the Wisconsin Constitution
that grants the legislature inherent authority to contract with
whomever it wants; nor do they cite a case that says as much.
8
No. 2021AP802.rfd
While the Constitution requires the legislature to redistrict
the state's electoral maps every ten years, it says nothing
about whether the legislature can hire outside counsel to help
it do so. Likewise for § 20.765, which deals only with how the
legislature pays its expenses, not with its authority to incur
them. It does not follow from the statute's "appropriat[ing] to
the legislature . . . a sum sufficient" to carry out its
functions, that Petitioners may spend money on anything they
want regardless of any other statutory limitations. See
§ 20.765 (emphasis added).
¶81 The other statute, Wis. Stat. § 13.124 (titled "Legal
Representation"), also does not authorize the contracts.
Section 13.124 provides that the leader of the appropriate house
may, in her "sole discretion," hire outside counsel "in any
action in which the assembly [or senate] is a party or in which
[its] interests . . . are affected." The statute also leaves it
to the houses' leaders' discretion to determine whether a
particular action actually affects the house's interests. See
§ 13.124. What is not left to their discretion, however, is
determining whether there is an "action" to begin with. And it
is undisputed that as of the date Petitioners contracted with
outside counsel, there was no pending action in which the
assembly or senate was a party or in which either houses'
interests were affected. Therefore, the plain text of § 13.124
precluded Petitioners from entering into the contracts.
¶82 Petitioners counter that the court should read "any
action" as including any "imminent" action, pointing to Wis.
9
No. 2021AP802.rfd
Stat. § 990.001(3) for support. Section 990.001(3) states that,
"when applicable," the present tense of a verb includes the
future tense. But even assuming that § 990.001(3) applies to
§ 13.124, it doesn't help Petitioners. Substituting "will be"
for the present-tense verbs "is" and "are" results in the
assembly speaker being able to hire outside counsel "in any
action in which the assembly is will be a party or in which the
interests of the assembly are will be affected." That
construction, however, just allows the house leaders to retain
outside counsel if they believe their house will eventually
become involved in an already pending action. It doesn't change
the fact that a currently pending action is still required by
the statute's plain text. Since there was none here, § 13.124
provides no authority for the contracts.
¶83 Petitioners' alternatives, therefore, cannot save
these contracts from the fact that they were not properly
authorized under § 16.74, and the majority errs in concluding
otherwise.
II
¶84 While the majority's statutory analysis is wrong, at
least its effects are likely to be limited. The same cannot be
said for the majority's discussion about the standard for stays
pending appeal. Despite its claim that it is merely
"explain[ing]" an earlier unpublished order, majority op., ¶48,
the majority unsettles what was a well-established, long-
10
No. 2021AP802.rfd
standing test for stays, applying the Gudenschwager factors in a
novel and unworkable way.
¶85 As we have explained time and again, appellate courts
are required to give a high degree of deference to a circuit
court's decision to grant or deny a stay pending appeal,
reviewing the decision only for an erroneous exercise of
discretion. See, e.g., State v. Gudenschwager, 191
Wis. 2d 431, 439–40, 529 N.W.2d 225 (1995). Accordingly,
appellate courts must "search the record for reasons to sustain"
the circuit court's decision, not manufacture reasons to reverse
it. E.g., State v. Dobbs, 2020 WI 64, ¶48, 392 Wis. 2d 505, 945
N.W.2d 609; Gudenschwager, 191 Wis. 2d at 439–40. So long as
the circuit court "demonstrated a rational process[] and reached
a decision that a reasonable judge could make," an appellate
court must affirm, even if it would have reached a different
conclusion. Weber v. White, 2004 WI 63, ¶40, 272 Wis. 2d 121,
681 N.W.2d 137. An appellate court may reverse the circuit
court's stay decision only if the circuit court applied the
wrong legal standard or reached a conclusion not reasonably
supported by the facts. See Gudenschwager, 191 Wis. 2d at 440;
State v. Jendusa, 2021 WI 24, ¶16, 396 Wis. 2d 34, 955
N.W.2d 777.
¶86 The correct legal standard for deciding whether to
grant a stay pending appeal is a four-factor balancing test that
has been used by the federal courts for at least 60 years. See,
e.g., Gudenschwager, 191 Wis. 2d at 439–40; Va. Petroleum
Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C.
11
No. 2021AP802.rfd
Cir. 1958). We expressly adopted it over 25 years ago in
Gudenschwager:
A stay pending appeal is appropriate where the moving
party: (1) makes a strong showing that it is likely
to succeed on the merits of the appeal; (2) shows
that, unless a stay is granted, it will suffer
irreparable injury; (3) shows that no substantial harm
will come to other interested parties; and (4) shows
that a stay will do no harm to the public interest.
191 Wis. 2d at 440. Although not identical, the test is similar
to that for temporary and preliminary injunctions. See, e.g.,
Werner v. A.L. Grootemaat & Sons, Inc., 80 Wis. 2d 513, 520, 259
N.W.2d 310 (1977) (unlike with stays pending appeal, a factor
for courts to consider regarding injunctions is whether an
injunction is "necessary to preserve the status quo").
¶87 Here, the circuit court clearly applied all four
Gudenschwager factors. On the first factor, it concluded that
Petitioners had presented "nothing" to suggest "they [we]re
likely to succeed on appeal on [the statutory] issues" and that
it was "unlikely [its] decision will be reversed on appeal."
The court then addressed the second factor, concluding that
Petitioners had failed to "meet their burden" of showing that
they were "likely to suffer irreparable harm." Finally, the
circuit court determined that the "third and fourth factors also
weigh against granting a stay" because allowing Petitioners to
improperly spend taxpayer money would harm both these plaintiffs
and the general public. The court of appeals then affirmed the
circuit court——twice. Given that the circuit court weighed each
Gudenschwager factor, there is no question that it applied the
12
No. 2021AP802.rfd
correct legal standard.5 So when the majority and the
concurrence claim that the circuit court applied the wrong legal
standard, what they really mean is that they disagree with the
circuit court's conclusion. But that disagreement is an
insufficient reason to hold that the circuit court erroneously
exercised its discretion. See McCleary v. State, 49
Wis. 2d 263, 281, 181 N.W.2d 512 (1971) ("An appellate court
should not supplant the predilections of a trial judge with its
own."); Gudenschwager, 191 Wis. 2d at 440.
¶88 Instead of applying the Gudenschwager test as it's
been traditionally understood, the majority and the concurrence
appear to craft a new approach, seemingly reinterpreting the
legal standard for each factor. Making matters worse is their
failure to provide the lower courts with any guidance on how to
apply those standards.
¶89 The majority and the concurrence stumble right out of
the gate, failing to apply the first Gudenschwager factor.
Gudenschwager requires the moving party to make a "strong
showing that it is likely to succeed on the merits," adding that
"more than the mere possibility" of success on appeal is "always
required." 191 Wis. 2d at 440–41. Both the majority and the
concurrence pay lip service to that standard, yet neither
explains how Petitioners met it. The concurrence suggests that
5The concurrence talks itself in circles on this point. It
claims both that the Gudenschwager test is the same as it's
always been and that the circuit court, which applied that
traditional test, applied the wrong legal standard. Both of
those things can't be true at the same time.
13
No. 2021AP802.rfd
a stay was warranted in part because likelihood of success is a
"sliding-scale factor" and Petitioners had a "nontrivial" and
"reasonable" chance of succeeding. See concurrence, ¶¶67–68.
Of course, it is black-letter law that in any multi-factor
balancing test, all factors exist on a sliding scale in that
each must be weighed against the others. See, e.g.,
Gudenschwager, 191 Wis. 2d at 440. But that still doesn't
explain why Petitioners had made a strong showing they were
likely to succeed on the merits, or whether "nontrivial" and
"reasonable" chances of success are somehow synonymous with
"more than a mere possibility of success."
¶90 The majority next errs by falsely equating a "strong
showing" of likely success on appeal with the fact that the
court of appeals reviews questions of law de novo. It provides
no explanation for how the de novo standard of review, on its
own, gives the moving party more than a mere possibility of
success on appeal. To be sure, de novo review gives an
appellant a better chance of winning on appeal than a more
deferential standard of review——but it "does not make the merits
of a party's arguments any stronger." League of Women Voters v.
Evers, No. 2019AP559, unpublished order, at 11 (Wis.
Apr. 30, 2019) (Ann Walsh Bradley, J., dissenting). There is
therefore no reason to believe that a party who lost on the
merits at summary judgment has any more than a mere possibility
of winning on appeal under a de novo review.
¶91 The majority is unfazed by that logic, perhaps because
its position makes the merits irrelevant. Under the majority's
14
No. 2021AP802.rfd
view, when the circuit court interprets statutory language for
the first time, it must always grant a stay because it's
possible another court may disagree with the circuit court's
analysis on appeal. That is, the moving party has somehow made
a "strong showing" it will win on appeal because it lost on the
merits in the circuit court. That "reasoning" is nonsensical on
its face. Plus, the fact that a party lost on a novel
statutory-interpretation question is a strong reason for a
circuit court to deny a stay: If an appellate court has yet to
interpret the statutory language at issue, the circuit court has
no reason to think that another court is likely to interpret the
statute differently. Even if it does, that does not necessarily
mean the moving party will win, because different
interpretations do not necessarily lead to different outcomes.
The bottom line is that de novo appellate review, on its own,
says nothing about whether a party has "more than a mere
possibility of success" on appeal——a bar that the majority and
the concurrence acknowledge that the moving party must "always"
clear. See Gudenschwager, 191 Wis. 2d at 441.
¶92 It is therefore hard to make sense of the majority's
claim that had the circuit court considered "how other
reasonable jurists on appeal may . . . interpret[] the relevant
law" under the de novo standard of review, the circuit court's
analysis would have been "different." See majority op., ¶53.
The record shows that the circuit court was well aware it was
deciding a question of law that would be reviewed de novo, even
if it did not explicitly reference that standard of review.
15
No. 2021AP802.rfd
Whatever the circuit court was supposed to do differently, the
majority and the concurrence do not say, leaving circuit courts
to guess at how de novo appellate review should factor into
their analyses.
¶93 The majority and the concurrence also fault the
circuit court for resting on its summary-judgment analysis in
evaluating Petitioners' likelihood of success on the merits, but
again fail to say why that's a problem. It will often be the
case a party is unlikely to succeed on appeal for the same
reasons it did not succeed on summary judgment, particularly in
cases that aren't close calls. That is why we have previously
concluded that when a circuit court decides a question of law
and "believe[s] its decision [i]s in accordance with the law,"
that reason is good enough in most cases for it to also conclude
that the losing party "would not be successful on appeal." See
Weber, 272 Wis. 2d 121, ¶36. Conversely, "if the circuit court
concludes the issue is a close or complex one, the likelihood of
success on appeal will generally be greater." See Scullion v.
Wis. Power & Light Co., 2000 WI App 120, ¶19, 237 Wis. 2d 498,
614 N.W.2d 565. There is nothing in this record, though,
indicating that the circuit court found the statutory-
interpretation issue to be close or complex. And the fact that
this court ultimately reached a different conclusion on the
merits doesn't mean the circuit court was wrong on that score.
¶94 The upshot is that the majority may be right that the
first factor will "rarely if ever" favor the movant. See
majority op., ¶52. Most parties who lose at summary judgment
16
No. 2021AP802.rfd
will have a difficult time showing that they are likely to win
on appeal. But that does not mean that a circuit court will
never grant those parties a stay. There are three other factors
under the Gudenschwager test, and a stronger showing on those
may outweigh the moving party's low likelihood of success on the
merits. See Weber, 272 Wis. 2d 121, ¶35 (explaining that the
factors are not "prerequisites, but rather interrelated
considerations that must be balanced together").
¶95 The majority's discussion of those other factors,
however, provides little clarity for how a circuit court should
analyze them. The majority's application of the second factor——
irreparable injury——lowers the bar for when an injury is
considered "irreparable." Traditionally, "irreparable injury"
means an injury that, without a stay, will harm the movant in a
way that "is not adequately compensable in damages" and for
which there is no "adequate remedy at law." See Allen v. Wis.
Pub. Serv. Corp., 2005 WI App 40, ¶30, 279 Wis. 2d 488, 694
N.W.2d 420. "The possibility that adequate compensatory or
other corrective relief will be available at a later date, in
the ordinary course of litigation, weighs heavily against" a
claim that an injury is irreparable. Sampson v. Murray, 415
U.S. 61, 90 (1974) (quoted source omitted); see also Brock v.
Milwaukee Cnty. Pers. Rev. Bd., No. 97-0234, unpublished op.,
1998 WL 261627, at *3 (Wis. Ct. App. May 26, 1998).
¶96 The majority lowers that threshold by conflating an
"adequate remedy at law" with Petitioners' preferred remedy. It
describes Petitioners' injury as their being unable to retain
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"counsel of [their] choice" to assist with redistricting, and
insists that the injury was irreparable because Petitioners
"could not get legal advice 'back' for this critical time in
which an injunction was in effect." See majority op., ¶57. The
concurrence further muddies the waters by labeling Petitioners'
inability to retain counsel of their choice a "substantial harm"
and a "real deprivation." See concurrence, ¶67. But neither
the majority, the concurrence, nor Petitioners explain why
Petitioners' injury, however characterized, was irreparable.
None explain why outside counsel could not give Petitioners the
same advice once the "risk of litigation materialized" and
Petitioners could then hire them under Wis. Stat. § 13.124. See
majority op., ¶57. Moreover, as the circuit court pointed out,
myriad alternatives were available to Petitioners during that
time:
If the Legislature needs assistance in its
redistricting work, it has plenty of
options. . . . [I]t has available to it the
Legislative Reference Bureau, the Legislative
Technology Services Bureau, the Wisconsin Legislative
Council, and the Attorney General's Office. Among
those various agencies and groups there are plenty of
resources available to the Legislature to engage in
their redistricting role.
In any event, Petitioners could have avoided any harm altogether
by entering into or ratifying the contracts "in the way
specified" by § 16.74(1). See White Constr. Co., 178 Wis.
at 338. Plain and simple, Petitioners' injury was not
irreparable.
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¶97 On the third factor——potential harm to the non-moving
party——the majority proposes an unprecedented per capita
calculation for taxpayer harms. The majority claims that
potential harm to the plaintiffs was "minimal" because they are
only "three individuals out of a state population of 5.8
million," see majority op., ¶¶58–59, implying that even if
Petitioners were illegally spending taxpayers' money, the only
relevant harm to the plaintiffs were their per capita shares.
Not only is there no support in our jurisprudence for such a
narrow view of taxpayers' harms, the majority offers no
explanation for what number of taxpayers or how high of a per
capita share is significant enough to weigh against a stay——
again leaving circuit courts in the dark. Our precedent also
undermines the concurrence's implication that so long as
government officials' wrongdoing can be measured only in
"dollars and cents," there's "not much" of a harm to taxpayers,
concurrence, ¶67. See S.D. Realty Co. v. Sewerage Comm'n of
City of Milwaukee, 15 Wis. 2d 15, 22, 112 N.W.2d 177 (1961)
(explaining the "substantial interest" that every taxpayer has
in preventing the "illegal expenditure of public funds"). As
for the majority's claim that the circuit court should have
considered whether the plaintiffs could pursue "a disgorgement
remedy," majority op., ¶59, it is unclear how that would work.
Disgorgement requires a party to give up profits obtained
illegally, e.g., Country Visions Coop. v. Archer-Daniels-Midland
Co., 2020 WI App 32, ¶46, 392 Wis. 2d 672, 946 N.W.2d 169, aff'd
on other grounds, 2021 WI 35, 396 Wis. 2d 470, 958 N.W.2d 511,
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No. 2021AP802.rfd
but Petitioners have no profits to give up because they were
allegedly spending money illegally. Outside counsel profited,
and they are not parties to this case.
¶98 Finally, in addressing the fourth Gudenschwager
factor——that the moving party show that a stay will do "no harm"
to the public interest, 139 Wis. 2d at 440——the majority and the
concurrence again identify no error by the circuit court.
Instead, the majority improperly conflates the legislature's
interest in obtaining outside legal advice and the public's
interest in the legislature obtaining such advice. At a
minimum, there are two conflicting public interests at play
here——the public's interests in informed legislative decision-
making and in preventing Petitioners from unlawfully spending
taxpayer funds. The majority makes no attempt to resolve that
conflict, instead baldly asserting that the "public is better
served" by the legislature retaining outside counsel. See
majority op., ¶60. All the majority is saying here is that it
would weigh the parties' competing interests differently than
the circuit court. The same goes for the concurrence's
suggestion that the unauthorized expenditure of taxpayer funds
is a "limited" harm to the public and "not nothing." See
concurrence, ¶4. But, again, whether there is a different way
to weigh the parties' competing interests or whether the court
disagrees with how the circuit court weighed them, neither
reason is sufficient to reverse the circuit court's stay
decision. E.g., McCleary, 49 Wis. 2d at 281. So long as the
circuit court "demonstrated a rational process[] and reached a
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No. 2021AP802.rfd
decision that a reasonable judge could make," this court must
affirm. See Weber, 272 Wis. 2d 121, ¶40. The record here
reveals the circuit court did just that, and neither the
majority nor the concurrence says otherwise.
¶99 Before today, our precedent for how circuit courts
should decide whether to grant a stay pending appeal was well
settled and easily applied. But here the majority reinterprets
the legal standard for each of the four Gudenschwager factors,
and provides circuit courts with precious little guidance for
how to apply them. The result is a guessing game about how to
conduct a Gudenschwager analysis. We can and should do better.
¶100 For the foregoing reasons, I dissent.
¶101 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY join this opinion.
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