Top Wisconsin Democrats Ask High Court to Toss Lame-Duck Law

Opponents of an extraordinary session bill submitted by Wisconsin Republican legislators hold “Stop Lame Duck” signs at a rally outside the Capitol in Madison in December 2018. (John Hart/Wisconsin State Journal via AP)

MADISON, Wis. (CN) — Wisconsin’s Democratic governor and attorney general sued the GOP-controlled Legislature in the state’s highest court on Monday in an attempt to toss a portion of controversial lame-duck laws passed two years ago reeling in their executive powers.

The lawsuit from Governor Tony Evers, Attorney General Josh Kaul and Department of Administration Secretary Joel Brennan, the latest in a two-year slew of litigation over the lame-duck laws, specifically asks the Wisconsin Supreme Court to toss a portion of Wisconsin Act 369 which requires a legislative budget committee to approve most settlements in plaintiff-side civil actions the attorney general negotiates on the state’s behalf.

The plaintiffs argue that the provision impedes important executive branch functions, namely representing the state’s interests in court and negotiating settlements, and violates separation of powers laid out in the Wisconsin Constitution.

In particular, they argue the provision is unconstitutional as applied to “civil enforcement actions brought under statutes that the attorney general is charged with enforcing, such as environmental or consumer protection laws” and “civil actions the department prosecutes on behalf of executive branch agencies relating to the administration of the statutory programs they execute.”

Settling lawsuits over consumer and environmental protection and addressing breach-of-contract disputes between state agencies, the governor and attorney general argue, are quintessential executive functions “in which the legislative branch has no legitimate institutional interest.” The Democratic executives additionally opine that the provision is unworkable since civil settlement and legislative processes are incompatible, as such settlements sometimes require quick action in court that would be hampered by having to wait on committee approval.

Their petition names the Wisconsin Legislature, the legislature’s Joint Committee on Finance, committee leaders and other top Republican lawmakers as defendants. The Legislature has strong GOP majorities in both chambers, and the joint finance committee is co-chaired by Republicans, who outnumber Democrats on the committee 11-4.

Partisan court battles over Wisconsin’s lame-duck laws began almost immediately after the laws were passed in late 2018.

The provisions were enshrined into Wisconsin law after a rushed extraordinary legislative session two weeks after Evers and Kaul bested their Republican incumbent counterparts in midterm elections, which saw Badger State liberals take every statewide office, but before the Democrats actually took office.

The wide-ranging Wisconsin Acts 369 and 370 reined in the executive powers of the governor and attorney general and gave lawmakers more oversight authority over the executive branch, as well as afforded the body greater leverage to intervene in a variety of executive functions, including settling the state’s lawsuits.

Republicans’ arguments in support of the laws have centered on giving the legislature a co-equal seat at the table in representing state interests, especially when they concern the legislative purse, since spending the state’s money is the job of the legislature through enacting laws.

Badger State liberals condemned the lame-duck laws as a cynical power grab by Republicans feeling sour grapes after a blue wave election that included the defeat of two-term Governor Scott Walker and one-term Attorney General Brad Schimel, who now serves as a Waukesha County Circuit Court judge.

A flood of lawsuits followed passage of the laws, but Wisconsin courts have vindicated them at nearly every turn. Most recently, the state supreme court, itself controlled by conservatives 4-3, upheld most of the laws in July in connection with a lawsuit first filed in February 2019 by local unions, including a chapter of the Service Employees International Union, or SEIU.

The SEIU challenged the facial constitutionality of the laws on separation-of-powers grounds. A Dane County Circuit Court judge blocked most of the laws in March 2019, but the high court reinstated most of them three months later, and ultimately ruled in July that the laws are legitimate in that they have at least some constitutional applications.

However, Kaul noted at the time of that decision this summer that the justices seemed to punt on most of the provisions affecting the attorney general’s authority, leaving the door open for the kind of tailored lawsuit filed Monday asking the court to rule that the settlement provision is unconstitutional in at least two types of cases.

Republican leaders in the Wisconsin Legislature, including those who co-chair the joint finance committee, did not immediately respond to requests for comment on the attorney general and governor’s lawsuit Monday.

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