Wisconsin GOP Asks High Court to Settle Lame-Duck Case

MADISON, Wis. (CN) – In the latest legal maneuvering over bills passed during a December lame-duck floor session, the Republican-controlled Legislature petitioned the Wisconsin Supreme Court late Wednesday to take up one of the bills’ legal challenges and settle the matter once and for all.

Opponents of an extraordinary session bill submitted by Wisconsin Republican legislators protest outside the state capitol on Dec. 3, 2018. (John Hart/Wisconsin State Journal via AP)

The lawsuit in question was originally filed by the League of Women Voters of Wisconsin and others, who argued that the Legislature’s surprise lame-duck session was carried out in excess of its powers under the Wisconsin Constitution.

Last month, Dane County Circuit Judge Richard Niess issued a temporary injunction blocking all of the lame-duck legislation, agreeing that the Legislature did not convene legally to pass its bills limiting the powers of Governor Tony Evers and Attorney General Josh Kaul, both Democrats who were elected in November.

The GOP-controlled Legislature appealed the next day to the Wisconsin Court of Appeals. About a week later, the appellate judges revived some of the lame-duck provisions while leaving alone others blocked by Dane County Circuit Judge Frank Remington in a separate suit brought by local unions.

In the Legislature’s 36-page petition Wednesday, the main sticking point was the status of 15 appointees remaining from 82 total appointments made by former Republican Governor Scott Walker that were confirmed in the waning days of his tenure.

Governor Evers reappointed 67 of the appointees, leaving 15, including Public Service Commission head Ellen Nowak, in limbo.

“The Circuit Court issued a temporary injunction throwing the state into chaos, blocking numerous laws and vacating eighty-two appointments,” the petition states.

It goes on to lament that  on April 9, the appeals court denied the Legislature’s motion to enforce its previous stay such that Evers would be forced to reappoint everyone in question, leaving that matter for final judgment.

The Legislature’s petition asks the Wisconsin Supreme Court “to put an immediate end to this needless situation, which is detrimental to the public interest, deeply unfair to long-time public servants and benefits no one.”

The petition called Governor Evers’ stalling on the appointees “shocking tactics” that “are imposing continued uncertainty on critical bodies,” and stated that his actions are “the strongest possible evidence of the character of his conduct.”

The Legislature asked for an immediate ex-parte order through the Supreme Court’s original jurisdiction, supervisory writ, mandamus or immediate temporary relief authority. Barring that, the Legislature requested emergency relief by the end of the week so that all relevant appointees can return to work by Monday.

“It simply cannot possibly be the case that the courts of this state must sit idly by, allowing this situation to stand, or to force these appointees and the public to suffer harm for any number of days for the governor’s actions,” the petition states.

It continues, “Finally, if this court takes original jurisdiction over this matter, the Legislature respectfully requests that this court resolve this entire dispute” and “settle finally the underlying merits of this whole case.”

The petition was filed by Misha Tseytlin, the Legislature’s counsel from the Chicago branch of nationwide firm Troutman Sanders.

The state’s high court responded to the Legislature’s petition Thursday, stating that any response to its motion for emergency temporary relief must be filed by 3 p.m. on April 15, and any responses to the petition for original action must be filed by 4 p.m. the following day.

Also featured in the dizzying array of litigation over the lame-duck laws is the case brought by local unions arguing that Legislature’s lame-duck actions violated the state’s constitutional separation of powers, for which Judge Remington issued a partial injunction. That case is also being fought in the appellate court.

In addition to that suit is a federal complaint filed by the Democratic Party of Wisconsin, which is before U.S. District Judge James Peterson and is scheduled for oral arguments on April 26 in Madison.

Judge Peterson also threw out early-voting limits in the lame-duck legislation in January.

The Legislature’s petition to the Wisconsin Supreme Court came the same day that liberal state appeals court Judge Lisa Neubauer conceded to her conservative colleague Brian Hagedorn in an election for a vacant seat on the high court, which tipped the balance of the court to a 5-2 conservative majority.

Hagedorn, appointed to the appeals court by Walker in 2015, will fill the seat of liberal Justice Shirley Abrahamson, a retiring 45-year veteran of the high court who has been battling cancer.

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