Wisconsin Court Revives GOP Lame-Duck Laws

WAUSAU, Wis. (CN) – A Wisconsin appeals court on Wednesday granted the Republican-controlled Legislature the emergency stay it pushed for after a state judge in Madison blocked controversial lame-duck laws last week, effectively reinstating the laws pending appeal.

The order from a three-judge panel in the District 3 Court of Appeals in Wausau stayed Dane County Circuit Judge Richard Niess’ temporary injunction as the Legislature’s appeal of his ruling goes forward.

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

Judge Niess’ ruling came in a lawsuit brought by the League of Women Voters of Wisconsin and others challenging the Legislature’s authority to call the extraordinary floor session during which the lame-duck laws were passed in December.

The laws – which called for legislative approval for discontinuing or settling legal cases, the creation and treatment of guidance documents and agency publications, and suspension of administrative rules – reeled in the powers of Democratic Governor Tony Evers and Attorney General Josh Kaul, who were elected last November. Former Republican Governor Scott Walker signed the bills into law before leaving office in January.

The Wisconsin Court of Appeals’ unsigned, nine-page order concluded that “the circuit court erroneously exercised its discretion” by not granting state lawmakers the “presumption of constitutionality” and denying the Legislature’s motion for a stay, noting that “it is not our role to determine the wisdom of the legislation itself.”  

Weighing the irreparable harm claimed by the plaintiffs and the Legislature, the order stated that “the alleged irreparable harm that we deem to be the most significant is the claim that the people of a state always suffer a form of irreparable harm any time statutes enacted by their representatives are enjoined.

“This claim of an intangible representational injury is the flip side of the potential harm that the circuit court recognized that would result from enforcing an invalid law, and it is no less powerful,” the ruling states.

In an email reacting to Wednesday’s order, Melissa Baldauff, a spokeswoman for Governor Evers, said the “only victory today is for the $500-per-hour lawyers getting paid by taxpayers to defend the Republican attack on our Constitution.”

“Republicans created this chaos and have doubled down on defending their illegal attack on our Constitution instead of working with the governor to move forward,” Baldauff said. “We remain confident that the courts will ultimately undo the entire lame duck session overriding the will of the people.”

Applauding the appeals court’s order in a joint statement, Assembly Speaker Robin Vos, R- Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau, said, “Last week’s circuit court ruling created a constitutional crisis- established law says that the court cannot tell the Legislature how to set its rules. Extraordinary sessions have been called for decades.”

The Republicans continued, “Today, the rule of law has prevailed. Independent judges have put a Dane County ruling on hold that was based on politics, not the law. A judge should not violate the Legislature’s basic ability to convene when its duly elected members call a session day.”

Wednesday’s appeals court order did not address other legal challenges to the lame-duck laws, including a Tuesday ruling from Dane County Circuit Judge Frank Remington in a separate lawsuit brought by local unions challenging what they claim is the Legislature’s violate of the separation of powers in attempting to give itself the authority to intervene in state lawsuits, as well as to give thumbs up or thumbs down approval for settlements and Medicaid administration.

Judge Remington’s ruling, which has no effect in light of the ongoing appeals process, blocked certain lame-duck provisions while leaving others in place.

Wednesday’s order also expedites the appeal’s briefing schedule. It says the Legislature’s initial brief is due April 10, the plaintiffs’ response brief is due April 23 and any reply from the Legislature is due April 30.

A similar appeal of Judge Remington’s Tuesday order blocking portions of the lame-duck laws is likely to be filed any day.

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