Wisconsin High Court Reinstates Most Lame-Duck Laws

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

MADISON, Wis. (CN) – The Wisconsin Supreme Court ruled late Tuesday to reinstate most of the GOP-controlled Legislature’s lame-duck laws limiting the powers of the new Democratic governor and attorney general, handing another significant victory to conservatives in the Badger State.

Signed into law by former Republican Governor Scott Walker in December after a hurried GOP-engineered extraordinary session, the lame-duck provisions tightened the reins on Governor Tony Evers and Attorney General Josh Kaul less than a month after they won in midterm elections that saw liberals take every statewide office.

The laws gave 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 during Walker’s tenure.

The measures also gave state lawmakers broad oversight power over the governor’s ability to execute health care waivers, implemented drug testing and minimum work requirements for some recipients of welfare such as food stamps, and gave the Legislature the power to intervene in lawsuits the state is involved in.

With Tuesday’s dual orders in a case brought by local unions, including a chapter of the Service Employees International Union, or SEIU, most of those provisions are back in effect after many had been both enjoined and revived as the lame-duck fight has climbed through the state’s courts.

The orders, which were both split 4-3 in favor of the Wisconsin Supreme Court’s conservative majority, also stayed trial procedures that were set to begin Wednesday before Dane County Circuit Judge Frank Remington.

The high court’s conservatives – Chief Justice Patience Roggensack and Justices Daniel Kelly, Annette Ziegler and Rebecca Bradley – stated in the more substantial of the two orders that circuit court judges who blocked the lame-duck laws improperly analyzed the potential harms to both the public and the Legislature in doing so.

They also found the lower court judges falsely indicated the Legislature lacked a likelihood of success on appeal of those injunctions.

The majority noted the circuit court in the case brought by the unions performed an analysis of potential harm to the plaintiffs while weighing a temporary injunction of the lame-duck laws, but failed to give consideration to the legislative defendants’ potential injury in determining not to issue a stay of those injunctions pending the Legislature’s appeal.

Siding with the Legislature’s adherence to the idea that it and the public both suffer irreparable harm by allowing injunctions of the lame-duck laws, Tuesday’s orders most significantly put back into place provisions of the laws that require the attorney general to get the Legislature’s consent before settling any action the state is involved in.

The conservative majority opined that the injunctions do not result in “speculative injury,” pointing to the fact that Attorney General Kaul and the state Department of Justice “proceeded to settle several cases since it no longer needed to obtain legislative consent” after those relevant lame-duck provisions were enjoined.

“If the legislative defendants ultimately prevail on appeal, this court will not be able to direct the federal courts to vacate or reopen the judgments in those cases. The right of the Legislature to review and consent to those settlements will be gone forever,” the ruling states.

The exception to Tuesday’s stay of the injunction involves rules over certification of administrative guidance documents, which help businesses comply with state agency rules. A provision of the lame-duck laws requiring a public commenting period for the documents will not go into effect July 1.

In a dissenting opinion from the court’s liberals, Justice Rebecca Dallet wrote that the conservative majority has considerably overblown the potential harm to the Legislature and the public, reminding her colleagues that during oral arguments the circuit court could not identify any specific harm and the Legislature “pointed only generally to chaos resulting from not knowing which cases, if any, the attorney general would defend.”

The liberals’ dissent asserted that the majority “inflates the corresponding abstract harm” to the Legislature in lieu of the “concrete, irreparable harm” to the attorney general and the governor of “having their executive powers usurped.” Dallet also pointed out that Attorney General Kaul has already provided specific examples of how the work of the state DOJ is disrupted by the lame-duck laws and how taxpayers are negatively affected.

Also in the dizzying flurry of litigation over the laws is a separate case before the Wisconsin Supreme Court brought by the local chapter of the League of Women Voters. The court heard arguments in that case in May and its decision is expected this summer.

Two other lame-duck suits are in play in federal court. In one filed by state Democrats, U.S. Magistrate Judge Stephen Crocker granted the Legislature’s motion to stay discovery in late May as the parties figure out the soonest mutually available trial date.

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. In addition to the rules on guidance documents referenced in Tuesday’s order, the early-voting provision is the only other lame-duck measure that has been effectively struck down to date.

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