2022 WI 6

SUPREME 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.
2

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. 
2022 WI 6

NOTICE

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,

 v.

Devin LeMahieu, in his official capacity and 

Robin Vos, in his official capacity,

 Defendants-Appellants-Petitioners.

FILED

JAN 27, 2022

Sheila T. Reiff

Clerk of Supreme Court

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 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2019-20 version unless otherwise indicated. 
 No. 2021AP802

2

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.

3 Senator LeMahieu is the majority leader of the Wisconsin 

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.
 No. 2021AP802

3

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).
 No. 2021AP802

4

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) 
 No. 2021AP802

5

(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 prelitigation 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.
 No. 2021AP802

6

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 
 No. 2021AP802

7

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 

 

6 Under Wis. Stat. § 802.06(2)(b), a motion to dismiss for 

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."
 No. 2021AP802

8

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 
 No. 2021AP802

9

"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. 
 No. 2021AP802

10

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.
 No. 2021AP802

11

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 

 

8 Petitioners originally moved to dismiss the complaint, 

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.
 No. 2021AP802

12

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 

 

9 Petitioners 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. 
 No. 2021AP802

13

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 
 No. 2021AP802

14

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 
 No. 2021AP802

15

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'
 No. 2021AP802

16

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.
 No. 2021AP802

17

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, 
 No. 2021AP802

18

¶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 
 No. 2021AP802

19

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, 
 No. 2021AP802

20

"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). 
 No. 2021AP802

21

¶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").
 No. 2021AP802

22

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

 

12 It 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, 
 No. 2021AP802

23

¶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? 
 No. 2021AP802

24

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 

 

13 We reserve, without deciding, the question of whether 

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. 
 No. 2021AP802

25

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 
 No. 2021AP802

26

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 
 No. 2021AP802

27

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 
 No. 2021AP802

28

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 

 

14 Furthermore, any failure of those authorized to make 

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 
 No. 2021AP802

29

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. 
 No. 2021AP802

30

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 
 No. 2021AP802

31

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, "represent[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 
 No. 2021AP802

32

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 
 No. 2021AP802

33

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 

 

16 By contrast, appeals of decisions left primarily to the 

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."). 
 No. 2021AP802

34

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 
 No. 2021AP802

35

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").
 No. 2021AP802

36

¶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 
 No. 2021AP802

37

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.
 No. 2021AP802

38

By the Court.—The judgment and the order of the circuit 

court are reversed, and the cause is remanded with instructions.
 No. 2021AP802.bh

1

¶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 

 

1 State v. Gudenschwager, 191 Wis. 2d 431, 440, 529 

N.W.2d 225 (1995) (per curiam).

2 Id.

3 Id.

4 Id. at 441.
 No. 2021AP802.bh

2

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 attorneyclient 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 

 

5 Though "the movant is always required to demonstrate more 

than a mere 'possibility' of success on the merits." Id.

6 Id.
 No. 2021AP802.bh

3

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-

 

7 The 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.

8 The 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.
 No. 2021AP802.bh

4

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.
 No. 2021AP802.rfd

1

¶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.

 

1 Legislative service agencies, such as the Legislative 

Reference Bureau, can also purchase contractual services, but no 

such agency is involved in this case.
 No. 2021AP802.rfd

2

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 
 No. 2021AP802.rfd

3

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 

 

2 There is at least some surface-level tension between the 

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).
 No. 2021AP802.rfd

4

§ 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 

 

3 The 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").

4 Section 16.74 does not specify the mechanics of how the 

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.
 No. 2021AP802.rfd

5

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 
 No. 2021AP802.rfd

6

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 
 No. 2021AP802.rfd

7

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 
 No. 2021AP802.rfd

8

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. 
 No. 2021AP802.rfd

9

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. 
 No. 2021AP802.rfd

10

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-
 No. 2021AP802.rfd

11

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. 
 No. 2021AP802.rfd

12

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 
 No. 2021AP802.rfd

13

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 

 

5 The 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.
 No. 2021AP802.rfd

14

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 
 No. 2021AP802.rfd

15

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. 
 No. 2021AP802.rfd

16

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 statutoryinterpretation 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 
 No. 2021AP802.rfd

17

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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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 decisionmaking 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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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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