Unions Make Case Against Wisconsin Lame-Duck Laws

MADISON, Wis. (CN) – In the second round of hearings over Wisconsin’s controversial lame-duck legislation in as many weeks, a Dane County judge heard arguments Monday in a lawsuit brought by unions challenging three laws passed during an extraordinary floor session of the GOP-controlled Legislature in December.

The case being debated on Monday, filed last month by the Service Employees International Union Local 1 and others, makes similar claims to another lawsuit argued a week ago, with the basis being that the Legislature lacked the legal authority to call the December lame-duck floor session and pass laws seeking to hamstring the ability of new Democratic Governor Tony Evers and Attorney General Josh Kaul to exercise the powers of their offices.

Wisconsin Gov. Tony Evers answers reporter questions at the state capitol in Madison on March 21, 2019. (Steve Apps/Wisconsin State Journal via AP)

The unions seek a block of the three laws passed during the session.

The nearly four hours of arguments Monday, presided over by Dane County Circuit Judge Frank Remington, addressed the Legislature’s motion to dismiss as an intervenor in the case, as well as the unions’ motion for a preliminary injunction.

The crux of the dispute is the constitutionality of the Legislature’s provisional right to intervene in executive branch functions like settling and litigating lawsuits and administrating Medicaid, a right which was enacted with former Republican Governor Scott Walker’s signing of the lame-duck bills in December.

Matthew Wessler, an attorney with Washington, D.C. based firm Gupta Wessler appearing on behalf of the unions, opened by stating that the plaintiffs’ challenge seeks “to restore the fundamental balance of power” that has stood in Wisconsin for 150 years.

Wessler derided the Legislature’s lame-duck attempt to “change the basic rules of how democracy works in Wisconsin” by using an all-night extraordinary session, after working in unseen committees, to pass legislation giving the executive branch’s authority to enforce state laws to the legislative branch, which he says is at the very least burdensome to the executive branch and stymies its ability to function.

Lester Pines, of Madison firm Pines Bach, represented Governor Evers and said “the governor’s position is very straightforward: enforcing the law is an executive function.”

Pines stressed there is “nothing whatsoever in the [state] constitution that allows the Legislature to give those powers to itself,” adding that “this is directly and clearly a violation of a very strict separation of powers.”

The power to intervene in any case that it sees fit is essentially the Legislature’s attempt to appoint itself “a co-attorney general,” according to Pines.

Misha Tseytlin, who is with the Chicago branch of nationwide firm Troutman Sanders, argued again on behalf of the Legislature. He argued that the lame-duck provisions do not constitute a substantial change of procedure and do not violate the state constitution.

Tseytlin reiterated the Legislature’s much-echoed point that “this is not about a power grab but a seat at the table for the Legislature” to negotiate and make its points heard.

With specific regard to the administration of Medicaid resources, Pines argued that the lame-duck legislation “requires a nonstate agency,” referring to the relevant Legislative subcommittee, “to weigh in on…obligations that do not involve the Legislature.”

Wessler agreed, calling the provisions’ move to give the Legislature “thumbs up or thumbs down” approval power regarding Medicaid waivers a move that is beyond the Legislature’s authority.

Medicaid issues, the unions say, are the realm of the executive branch and the state’s Department of Health Services.

Judge Remington, noting that state law already gives the Legislature some say in how Medicaid is administrated, wondered if the lame-duck laws really “upend the pre-existing balance.”

Remington also pushed Tseytlin to define what “a seat at the table” actually means for the Legislature, to which Tseytlin replied that it means the cultivation of “a cooperative effort.”

Tseytlin was also asked by the judge to cite an example where the attorney general failed to defend the state and uphold the law, which seemed to be a major concern of the Legislature in attempting to secure itself negotiating leverage with the lame-duck laws.

He retorted that the Legislature is concerned that “politically unpopular laws would go undefended” by Attorney General Kaul.

Tseytlin pointed to the empty space next to him on the Legislature’s side of the courtroom, stating that but for the Legislature securing its interests “there would be no one else sitting over here.”

In closing, Judge Remington noted that his ruling will be determined by what happens in an appeal of another state judge’s ruling last week temporarily blocking the three lame-duck laws.

Nonetheless, Remington stated at the end of the hearing that he plans to deny the Legislature’s motion to dismiss and that he will issue a written decision by the close of business Tuesday.

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