Wisconsin Justices Uphold Most GOP Lame-Duck Laws

Wisconsin Attorney General Josh Kaul speaks during the inauguration of Gov. Tony Evers, right, on Jan. 7, 2019. (AP Photo/Andy Manis, File)

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Thursday upheld the lion’s share of lame duck laws passed by the GOP-controlled Legislature in late 2018 to limit the powers of the new Democratic governor and attorney general.

The lengthy ruling delivers what can mostly be seen as a win for Badger State conservatives, who have been vindicated by Wisconsin courts at almost every turn in the sprawling two-year intragovernmental fight over bills passed in a hurried extraordinary session of the legislature.

They were signed into law by former Republican Governor Scott Walker in December 2018, weeks after current Governor Tony Evers and Attorney General Josh Kaul won elections against conservative incumbents but before they were sworn into office.

Two weeks after the election, in which liberals won every statewide office, the Wisconsin Legislature called a surprise extraordinary session to pass what would become Wisconsin Acts 369 and 370. The wide-ranging laws rein in the executive powers of the governor and the attorney general and give lawmakers more oversight powers over the executive branch, as well as afford the body greater leverage to intervene in a variety of executive functions.

In part, the laws give the legislature the power to block rules the governor executes with regard to health care waivers and welfare programs such as food stamps, among other measures. In addition, they grant legislators standing to intervene in the state’s lawsuits and require the attorney general to clear any of the state’s court settlements with a Republican-controlled committee that oversees the legislative purse.

The underlying case germane to Thursday’s decision, one of roughly half a dozen legal actions thrown down over the lame-duck provisions, was first filed in February 2019 by local unions, including a chapter of the Service Employees International Union, or SEIU.

The suit challenged the constitutionality of the legislature’s right to get involved in functions typically designated to the executive branch via separation of powers.

Dane County Circuit Court Judge Frank Remington agreed with the unions and blocked most of the lame duck laws in March 2019, but the Wisconsin Supreme Court reinstated most of them three months later while the case played out.

The SEIU’s case was bitterly argued before Wisconsin’s high court for more than two hours in October 2019, and for the most part the conservative-majority court came down on the side of the legislature Thursday, finding that the laws have at least some constitutional applications.

In the first of the two majority opinions published Thursday, conservative Justice Brian Hagedorn importantly noted at the outset the labor organizations and taxpayers’ complaint “unequivocally presents a facial attack on all the laws challenged,” meaning they wanted the laws to be declared unconstitutional in any application and struck down in their entirety.

This set a high bar for the unions bringing the suit, as they would have had to prove there is not a single constitutional application for the laws—a standard Hagedorn and the high court found they did not meet.

Hagedorn wrote specifically that the laws allowing the legislature to get involved in state litigation were legitimate. That decision and most others Thursday split 5-2 along party lines.

“The legislature may have an institutional interest in litigation implicating the public purse or in cases arising from its statutorily granted right to request the attorney general’s participation in litigation,” he said, dispensing with the plaintiffs’ argument that the provision basically takes an essential executive function and hands it to the legislature.

“The takeaway is that the constitution gives the legislature the general power to spend the state’s money by enacting laws,” Hagedorn added. “Therefore, where litigation involves requests for the state to pay money to another party, the legislature, in at least some cases, has an institutional interest in the expenditure of state funds,” justifying intervention.

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

Hagedorn wrote similarly in support of lame-duck provisions allowing a legislative committee to review any proposed changes to security at the state capitol in Madison and allowing for multiple suspensions of administrative rules.

The justice also noted early in his opinion that the scope of Thursday’s decision is somewhat limited by incomplete briefing, the types of relief requested and the procedural history of the case. This leaves the door open for even further litigation over the lame-duck laws in the Badger State upon remand to the circuit court, meaning the fracas over the controversial laws could potentially drag on for months, even years.

The other majority decision released Thursday can be viewed as siding with Evers, Kaul and state liberals at large.

This decision tosses lame-duck rules requiring the Evers administration to get public comment before publishing what are called guidance documents. These documents, broadly speaking, are communications like manuals, handbooks, bulletins and websites that explain state rules for agencies and businesses that have to follow them.

Lame-duck rules pertaining to guidance documents also would have required the Evers administration to rewrite thousands of them according to the legislature’s minute specs, something Evers adamantly maintained would hamstring state government.

Justice Daniel Kelly penned the guidance document majority opinion, finding that “the creation and dissemination of guidance documents fall within the executive’s core authority,” and the documents “necessarily exist outside of the legislature’s authority because of what they are and who creates them.”

Kelly, a conservative who will be replaced on the high court by liberal Dane County Circuit Court Judge Jill Karofsky in August, was joined in this 45-page decision by fellow conservative Justice Rebecca Grassl Bradley, as well as the court’s resident liberals, Justices Ann Walsh Bradley and Rebecca Dallet, to form an improbable bipartisan alliance seldom seen in Wisconsin.

Thursday’s consequential decision drew immediate cheers and jeers from Wisconsin conservatives and liberals, respectively.

Wisconsin Assembly Speaker Robin Vos, R- Rochester, applauded the high court for prioritizing balance between the three co-equal branches of government and chided Evers and Kaul for trying to unilaterally run the state from the executive branch.

“The governor and attorney general can continue to try to work around the legislature and violate laws when doing so, or they can begin to understand that there are checks and balances set forth in our representative democracy, just as the state high court reminded them today,” Vos said in a statement.

State Senate Majority Leader Scott Fitzgerald, R-Juneau, who along with Vos is considered the chief architect behind the lame duck laws, tweeted Thursday that “a rogue attorney general can no longer unilaterally settle away laws already on the books and unelected bureaucrats can’t expand their powers beyond what the people have given them through their representatives.”

Evers and Kaul responded in part to Thursday’s decision with a mixture of disappointment and resolve.

The statement from Evers’ office called the legislature “sour grapes” ever since he won office and blasted state Republicans for never missing an opportunity to cut him down.

“Clearly Republicans are going to continue working against me every chance they get, regardless of the consequences,” Evers said. “But I’m not going to let that stop me from continuing to do what I promised I would when I ran for this office—I am going to keep putting people first and doing what’s best for the people of our state.”

Wisconsin’s highest court could deliver another loss to Evers as soon as Friday, as it’s set to issue a decision in a suit over the governor’s budget veto powers.

Kaul’s statement took Republicans to task for partisan power grabs that “demonstrated open hostility to outcomes chosen by Wisconsin voters and made it more difficult for state government to function effectively.”

The attorney general expressed confidence that the two main provisions undercutting his office’s authority will be found to be unconstitutional when the fight over the lame-duck laws continues another day.

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