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Wisconsin Supreme Court to hear oral arguments in lame-duck case

Posted at 10:11 AM, May 15, 2019
and last updated 2019-05-15 11:11:04-04

MADISON (AP) — The Wisconsin Supreme Court was set to hear arguments Wednesday in a lawsuit challenging restrictions Republican lawmakers placed on Democratic Gov. Tony Evers and Attorney General Josh Kaul's powers during a lame-duck legislative session last year.

The session sparked multiple legal challenges, including one led by the League of Women Voters. Dane County Circuit Judge Richard Niess in March ruled the lame-duck session was illegal and invalidated all actions Republicans took during it. Republican lawmakers want the Supreme Court to wipe out Niess' ruling and declare the session was legal.

Oral arguments provide an opportunity to see what justices may be thinking based on questions they ask the attorneys. The league faces an uphill struggle going in, though. Conservatives control the court 4-3.

Evers defeated then-Gov. Scott Walker in November, leading a Democratic sweep over Republicans running for statewide office. The GOP-controlled Legislature called the previously unscheduled "extraordinary session" in December, after Evers won but just weeks before he took office.

Republicans used the session to pass laws prohibiting Evers from withdrawing from lawsuits without the Legislature's permission; preventing Kaul from settling lawsuits without legislative approval; requiring Kaul to deposit settlement awards in the state general fund rather than in state Department of Justice accounts; and granting the Legislature the right to intervene in lawsuits using its own attorneys rather than DOJ lawyers.

Republicans designed the restrictions to prevent Evers and Kaul from fulfilling campaign pledges to withdraw from a multistate lawsuit challenging the Affordable Care Act and ensure they have a voice in defending GOP-authored laws that Kaul won't fight for in court.

A coalition of groups headlined by the League of Women Voters sued in January, arguing the Legislature can't meet in extraordinary session, a novel argument since the Legislature has been convening in such sessions for nearly 40 years. Evers joined the groups' arguments. Niess sided with them and invalidated all actions taken during the lame-duck session.

The 3rd District Court of Appeals put the ruling on hold, but not before Evers pulled the state out of the health care lawsuit. The Supreme Court took the case directly from the appellate court in April. Evers refused to reappoint 15 people the Senate confirmed during the lame-duck session, including two University of Wisconsin regents and a Public Service commissioner, but the Supreme Court in April restored the appointments while the underlying legal battle continued.

The Republicans' attorney, Misha Tseytlin, argues that the Legislature has been meeting in extraordinary sessions for decades. He contends the state constitution doesn't require the Legislature to ask the governor to sign a law authorizing floor periods and the schedule lawmakers adopted for the 2017-19 session states that any day is available for an extraordinary session.

The coalition argued in its briefs that Wisconsin survived more than 130 years before the Legislature held its first extraordinary session in 1980. The groups insisted the constitution allows the Legislature to meet only at a time provided by law. Evers filed briefs agreeing with the coalition.

Kaul hasn't taken a position, saying doing so would create a conflict of interest since the lawsuit affects the state Justice Department.

The case is one of three challenging the lame-duck restrictions on Evers and Kaul's powers.

Also pending before the state Supreme Court is a union lawsuit alleging the restrictions violate the separation of powers between the legislative and executive branches.

The state Democratic Party has filed a federal lawsuit arguing the laws prohibit Democrats from enacting policies and dilute their votes, amounting to a violation of free speech and equal protection guarantees.