Wisconsin GOP Asks Top Court to Enforce Lame-Duck Laws

Opponents of an extraordinary session bill submitted by Wisconsin Republican legislators hold “Stop Lame Duck” signs at a rally outside the Wisconsin state Capitol on Dec. 3, 2018. (John Hart/Wisconsin State Journal via AP)

MADISON, Wis. (CN) – Republican Wisconsin legislators sued the state’s Democratic attorney general late Thursday over the enforcement of controversial lame-duck laws aimed at curtailing his powers and those of the new governor, also a Democrat.

The legislators, led by Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau, claim Attorney General Josh Kaul is not complying with provisions in the lame-duck laws requiring him to clear any settlement of state lawsuits with the Legislature’s GOP-majority Joint Finance Committee and deposit any money from the settlements into the state’s main account, which is controlled by the committee.

The Republicans bypassed the lower courts and directly petitioned the Wisconsin Supreme Court for action, marking fifth lawsuit filed in the state over the lame-duck laws.

The laws were passed after a quick, unannounced extraordinary session of the Legislature last December less than a month after Kaul and Governor Tony Evers prevailed in midterms that saw liberals take every statewide office.

Vos and Fitzgerald are widely considered to be the chief architects behind the controversial lame-duck measures, signed into law by former Republican Governor Scott Walker.

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 under Walker, who lost his seat to Evers in November.

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.

This latest lawsuit, which the first to be filed by Republican legislators instead of against them, has to do with the attorney general’s powers related to handling the state’s lawsuits and any money involved with those lawsuits.

The petition, penned by Misha Tseytlin with the Chicago branch of nationwide firm Troutman Sanders and Eric McLeod with Madison-based firm Husch Blackwell, alleges Kaul is unlawfully withholding settlements and settlement money from the Legislature in violation of the lame-duck laws.

“Under Wisconsin law,” the petition claims, “the Legislature has a right to a seat at the table when the attorney general seeks to settle away the state’s litigation interests, including when he seeks to abandon his defense of statutes that the Legislature enacted, or when he seeks to compromise the public fisc.”

The petition calls the attorney general’s actions a “brazen effort to disrupt this statutory and constitutional separation of powers.”

In a joint statement released Thursday, Vos and Fitzgerald contend that Kaul “is taking an unrealistic view of the law and refusing to comply with previous court rulings.”

The pair called Kaul’s actions “egregious” and said he is “playing a game of political keep away with potentially up to $20 million in funds that belong to hard-working Wisconsinites,” which they say could be used on priorities like schools and health care.

Kaul’s own statement Thursday called the lawsuit “an attempt by the Legislature to use vague and poorly-written statutory language to substantially cut the budget for the Department of Justice, undermining public safety in Wisconsin.”

He claims “the Legislature is wrong on the law and it is simply incorrect that the Department of Justice has not attempted to involve the Joint Committee on Finance in the resolution of certain cases.”

Kaul claims that he only needs to get approval from the Legislature on specific kinds of cases, while others, such as cases in which a final judgment has been entered but appellate review was available, do not require such a protocol.

Thursday’s filing reignites the protracted fight over the lame-duck laws that has carried on for over six months.

Much of the legal dispute was resolved in June when the Wisconsin Supreme Court upheld the lame-duck laws in a 4-3 decision split along party lines, in a case brought by the state’s chapter of the League of Women Voters and others.

The justices also took up another lame-duck lawsuit brought by local unions and reinstated most of the laws challenged therein without the Legislature asking it to. Resolution of that case is forthcoming.

Both houses of the Legislature enjoy a comfortable conservative majority. Thursday’s petition came mere hours after conservative Justice Brian Hagedorn was sworn in to replace liberal Justice Shirley Abrahamson, who is retiring after over four decades on the state’s highest bench as she battles cancer. Hagedorn’s appointment brings the court’s conservative majority to a 5-2 tilt.

Since the high court is not currently in session, it is unclear whether it will take up the latest litigation.

Two other lame-duck lawsuits are in play in federal court. One lawsuit before U.S. Magistrate Judge Stephen Crocker has a trial date set for Sept. 21, 2020, but the parties have been in briefing over whether to dismiss the suit since the Wisconsin Supreme Court’s June ruling.

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 having to do with a public comment period over administrative guidance documents that help businesses comply with state agency rules.

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