Lame-Duck Laws Debated in Wisconsin High Court

Opponents of an extraordinary session legislation submitted by Wisconsin Republicans gather for a rally in Madison, Wis., on Dec. 3, 2018. (John Hart/Wisconsin State Journal via AP)

MADISON, Wis. (CN) – Tensions were high Wednesday in a packed courtroom at the Wisconsin Supreme Court for oral arguments in one of several lawsuits challenging the GOP-controlled Legislature’s lame-duck laws limiting the powers of the new Democratic governor and attorney general.

Tightening the reins on Governor Tony Evers and Attorney General Josh Kaul, the lame-duck provisions signed into law by former Republican Governor Scott Walker gave the Legislature the ability to appoint board members and restrict the governor from appointing the chief executive to the Wisconsin Economic Development Corporation, a public-private jobs agency formed during Walker’s tenure.

The new measures also gave state lawmakers broad oversight power over moves the governor could make on future health care waivers, implemented drug testing and minimum work requirements for some recipients of welfare such as food stamps, and gave the Legislature greater authority to intervene in lawsuits the state is involved in.

The lawsuit argued Wednesday before the state’s high court, filed in January by the League of Women Voters of Wisconsin and other groups, claims the Legislature did not convene legally last December to pass the lame-duck bills during its extraordinary floor session.

Dane County Circuit Judge Richard Niess agreed in late March, issuing an injunction that blocked the lame-duck legislation in its entirety. After the Legislature appealed the next day, state appeals court judges revived some of the bills’ provisions.

Wednesday’s arguments took place three weeks after the Wisconsin Supreme Court granted the Legislature’s request to take up the lawsuit. Days later, the court also agreed to take on a separate lame-duck challenge brought by local unions, including a chapter of the Service Employees International, or SEIU. It is unclear when the second case will be heard.

Misha Tseytlin, the Legislature’s counsel from the Chicago branch of nationwide firm Troutman Sanders, opened arguments by unequivocally stating that “nothing the Legislature did during the December 2018 session violated the Wisconsin Constitution.”

Arguments continued largely along the tack of which discrepancies exist between the statutory power of the Legislature to meet “at a time provided by law,” what constitutes an extraordinary session outside of a regular session, and when and how the Legislature is permitted to call such a session.

Justices Ann Walsh Bradley and Rebecca Dallet pressed Tseytlin on how an extraordinary session could be considered a part of the regular legislative floor period,

“Where is the law that tells us you can call this extraordinary session?” asked Dallet.

Tseytlin said that if the Legislature has not officially dissolved itself, and even if it is in recess, it is technically still meeting and that the term “extraordinary session” is misleading.

“It would be quite remarkable at this late date…to say that when the Legislature is in recess it is not in session,” Tseytlin said.

“It makes no sense to me that an extraordinary session is a regular session,” Justice Ann Walsh Bradley responded, adding that a fourth grader could tell that “special” and “regular” mean different things.

As Jeffrey Mandell, counsel for the League of Women Voters from Madison firm Stafford Rosenbaum, was getting ready to begin his arguments, he was beat to the punch by Justice Rebecca Bradley. She asked him how he could ask the court to say that the Legislature has been meeting unconstitutionally for four decades, referencing a 40-year-old resolution referring to extraordinary sessions.

Mandell posited throughout his arguments that it is a fallacy to find that the framers of the Wisconsin Constitution intended for a perpetual “broad and amorphous session” in which the Legislature can meet whenever they want and call it whatever they want.

“The Legislature is being very fast and loose with the words of the statute,” Mandell stated.

Justice Daniel Kelly retorted that, according to the letter of the law, the power to meet whenever and however may, in fact, be constitutional and that there is not actually a law providing for floor periods, much less extraordinary sessions.

Tamara Packard, an attorney with Madison firm Pines Bach representing Governor Evers, used her time to point out that “the people sought for the constitution to act as a limitation on legislative power” that would prevent the kind of irregular meeting that took place last December.

During his rebuttal, Tseytlin criticized how “the opposing counsel tied himself in knots” trying to explain how the state constitution does not allow for an extraordinary session, which he reiterated falls under the umbrella of the regular floor period.

In addition to the two cases now before the Wisconsin Supreme Court, two other lame-duck lawsuits are also in play in federal court.

In one of the suits, filed by One Wisconsin Institute and other liberal advocacy groups, U.S. District Judge James Peterson in January blocked early-voting limits contained in the lame-duck bills.

In the other federal case brought by state Democrats, Judge Peterson has set a pretrial conference for June 4. 

Wednesday’s arguments ended with the full courtroom paying tribute to Justice Shirley Abrahamson, who is retiring at the end of the high court’s current session as she battles cancer. Abrahamson was first elected to the state highcourt in 1976 and was the first, and only, female judge on any court in Wisconsin at the time.

Abrahamson will be replaced by Brian Hagedorn, a conservative elected in April who will bring the court to a 5-2 conservative tilt.

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