Split Wisconsin High Court Upholds Lame-Duck Laws

MADISON, Wis. (CN) – In a 4-3 decision along party lines, the Wisconsin Supreme Court on Friday upheld the GOP-controlled Legislature’s lame-duck laws limiting the powers of the new Democratic governor and attorney general.

 Wisconsin Gov. Tony Evers speaks in Madison on Thursday. The state’s conservative-controlled Supreme Court upheld Friday lame-duck laws limiting the powers of Evers and Attorney General Josh Kaul, handing Republican lawmakers a resounding victory. (AP Photo/Scott Bauer, File)

Signed into law by former Republican Governor Scott Walker in December, the lame-duck provisions tightened the reins on Governor Tony Evers and Attorney General Josh Kaul less than a month after they prevailed in midterm elections that saw liberals take every statewide office.

In part, the wide-ranging laws give the Legislature the authority 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 controversial measures also give state lawmakers broad oversight power over the governor’s ability to execute health care waivers and implement drug testing and minimum work requirements for some recipients of welfare such as food stamps. In addition, they grant the Legislature the power to intervene in the state’s lawsuits, and require the attorney general to clear any of the state’s court settlements with a legislative committee.

The lawsuit behind the Wisconsin Supreme Court’s order, filed in January by the League of Women Voters of Wisconsin and other groups, claims the Legislature did not convene legally to pass the lame-duck bills during its extraordinary floor session last December.

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.

Friday’s 25-page majority opinion penned by Justice Rebecca Bradley unequivocally defends the constitutionality of the hurried GOP-engineered extraordinary session during which the lame-duck provisions were conceived, which was hotly debated during arguments last month.

Joined by the court’s other conservatives- including Chief Justice Patience Roggensack, and Justices Daniel Kelly and Annette Ziegler- Bradley stated in her opinion that the extraordinary session “comports with the constitution because it occurred as provided by law.”

“The terminology the Legislature chooses to accomplish the legislative process is squarely the prerogative of the Legislature. The Wisconsin Constitution itself affords the Legislature absolute discretion to determine the rules of its own proceedings,” the ruling states.

Bradley said that as long as the Legislature “acts in accordance with its mandates, the constitution confers no power on the judiciary to enjoin or invalidate laws as a consequence for deficiencies in the implementation of internally-imposed legislative procedures,” emphasizing protections for separation of powers between the three co-equal branches of government.

The high court’s order vacates the circuit court’s order and remands the case for dismissal.

Wisconsin Assembly Speaker Robin Vos, R- Rochester, and Senate Majority Leader Scott Fitzgerald, R- Juneau, considered the key architects of the lame-duck legislation, applauded the high court’s decision in a joint statement Friday morning.

“We are pleased by the Supreme Court’s common sense decision,” they said. “The court upheld a previously non-controversial legislative practice used by both parties for decades to enact some of the most important laws in the state.”

The two legislators chided “special interests” as well as Governor Evers in their statement, urging the governor “to work with the Legislature instead of pursuing his political agenda through the courts.”

In a dissenting opinion spearheaded by Justice Rebecca Dallet, the court’s liberal faction called the Legislature’s extraordinary session unconstitutional and said the majority opinion “subverts the plain text” of the Wisconsin Constitution by upholding the lame-duck laws.

Dallet, joined in her dissent by Justice Ann Walsh Bradley and soon-to-be-retired Justice Shirley Abrahamson, found that the joint resolution work schedule that allowed calling the extraordinary session is not a law “that allows for a continuous, perpetual legislative session and the ability to convene at anytime without notice” and does not give the Legislature carte blanche to “wield unbridled power.”

In its own statement released Friday morning, Governor Evers’ office lamented how “the people of Wisconsin deserve better than this,” and said “today’s decision is disappointing and, unfortunately, all too predictable.”

The statement avowed that “our framers knew that no good comes from lawmakers rushing laws through at the last minute without public scrutiny,” and that “the lame duck session proves the framers were right. This was an attack on the will of the people, our democracy, and our system of government.”

Friday’s ruling is the latest shoe to drop in a flurry of contentious litigation over the lame-duck laws.

Less than two weeks ago, the Wisconsin Supreme Court reinstated most of the lame-duck provisions in a separate lawsuit brought by local unions, including a chapter of the Service Employees International Union, or SEIU, a case the court took up in April without being asked to. The justices have yet to release a final decision in that case.

Two other lame-duck lawsuits are in play in federal court. U.S. Magistrate Judge Stephen Crocker has set a Sept. 21, 2020 trial date for a case brought by state Democrats after granting the Legislature’s motion to stay discovery in late May.

In the second federal lawsuit 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.

The early-voting provision now stands as one of only two lame-duck provisions to be effectively struck down. The other involves rules over certification of administrative guidance documents, which help businesses comply with state agency rules. A provision of the lame-duck laws requiring a public commenting period for the documents will not go into effect July 1.

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