Wisconsin Justices Hear Union Fight Against Lame-Duck Laws

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

MADISON, Wis. (CN) – The bitter fight over controversial lame-duck laws passed by Wisconsin’s GOP-controlled Legislature limiting the powers of the Democratic governor and attorney general continued in the state’s high court Monday, where the justices needled over the extent of executive authority and separation of powers.

Signed into law by outgoing Republican Governor Scott Walker last December, the lame-duck provisions tightened the reins on incoming Governor Tony Evers and Attorney General Josh Kaul following elections that saw liberals take every statewide office. The laws were passed during a hurried, surprise extraordinary session of the Legislature called two weeks after the election.

In part, the wide-ranging laws give the Legislature the power to intervene in the state’s lawsuits and require the attorney general to clear any of the state’s court settlements with a legislative committee.

The underlying case argued Monday was filed in Dane County Circuit Court in February by local unions, including a chapter of the Service Employees International Union, or SEIU. It challenged the constitutionality of the Legislature’s right to intervene in executive functions like settling and litigating lawsuits.

Dane County Circuit Judge Frank Remington issued an injunction blocking some of those laws in March. However, the Wisconsin Supreme Court many of those provisions in June. Less than two weeks after that, the court upheld the lame-duck laws in a different case brought by the League of Women Voters of Wisconsin and others in a 4-3 decision.

Before a full house in the high court’s hearing room Monday, the testy arguments took place over more than two hours, double the normal argument time usually allotted due to the significance of the concerns involved, as pointed out by Chief Justice Patience Roggensack at the outset.

Misha Tseytlin, the Legislature’s counsel with the Chicago branch of nationwide firm Troutman Sanders, began by arguing that Wisconsinites’’ interests are jeopardized if the attorney general is allowed to settle away the taxpayers’ money and “concede away the validity of state law” without the Legislature having “a co-equal seat at the table” with regard to those decisions.

Justice Rebecca Dallet cut Tseytlin off during his opening statements and pointedly asked, “Where does the power come from for the Legislature to put a stop to the executive function to settle these cases?”

Tseytlin argued that the Wisconsin Constitution allows for this kind of power sharing, and also said the attorney general is a hybrid administrative position that is not purely executive.

Justices Ann Walsh Bradley and Annette Ziegler both wondered why the Legislature has to intervene at all if the attorney general is the state’s attorney. Tseytlin answered that the provisions do not give the Legislature attorney powers but simply a seat at the table.

Dallet sharply disagreed again, chiding that “you are asking for more than a seat at the table.”

“Basically what you’re saying is not only can you intervene, but you can grind to a complete halt any litigation,” she said, if the Legislature decides it does not like what the attorney general is doing.

Tseytlin argued that anything having to do with the legislative purse requires the approval of lawmakers since the Legislature is writing the checks.

Attorney General Kaul, appearing in person for the first time in the nearly yearlong fight over the lame-duck laws, argued on behalf of the SEIU. Monday marked his first appearance before the state high court since being elected.

Justice Brian Hagedorn, presiding over the lame-duck fight for the first time since he won an election in April and tilted the court’s GOP majority to 5-2, asked Kaul if he could “concede that there is an appropriate situation where the Legislature could give itself the power to intervene.”

Kaul answered in the negative with regard to changes imposed by the lame-duck laws, stating that “what the Legislature cannot do is transfer executive authority to itself.”

Responding to Justice Daniel Kelly’s question of whether there is any salvaging the laws in question, Kaul said “the statute is unconstitutional under all applications. We’re talking about a provision that allows the Legislature to affect the way the executive branch exercises its authority.”

Kaul hammered on the point that the Legislature cannot weaponize its powers of intervention in order to force the executive branch to act in a certain way if it does not like what it is doing.

Matt Wessler, appearing pro hac vice from the Washington, D.C. branch of nationwide firm Gupta Wessler, made the case that “there is nowhere in the text of the Wisconsin Constitution, or any other constitution, that allows the Legislature to enforce the law.” He argued that the lame-duck laws step over the separation of powers safeguards of bicameralism and presentment.

Lester Pines, appearing on behalf of Governor Evers from Madison firm Pines Bach, argued against another lame-duck provision that would force the governor to rewrite a vast number of guidance documents, which advise the public on how to follow the law.

The stakes are high for Wisconsin liberals, as this may be the last chance they have to assert their case before a supreme court that has sided with the Legislature at nearly every turn. The court’s decision is expected in the coming months.

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