Conservatives Argue Against Lame-Duck Lawsuit
Right-leaning members of Wisconsin Supreme Court skeptical in oral arguments on lawsuit challenging lame-duck session before Evers took office.
Conservatives on the Wisconsin Supreme Court struck a decidedly skeptical tone Wednesday during oral arguments in one of the lawsuits challenging the December lame-duck session of the Legislature that limited the power of Democratic Gov. Tony Evers.
The lawsuit, by the League of Women Voters of Wisconsin and other plaintiffs, contends the entire session was unlawful because the state constitution doesn’t explicitly allow legislators to meet in what’s known as an “extraordinary session.”
“You are asking this court to rule that the Wisconsin Legislature has been acting unconstitutionally for over four decades,” Bradley told Mandell. “How can that be? Don’t you find it extraordinary that nobody has raised this issue before this court in over four decades?”
Justice Daniel Kelly, another of the court’s conservatives, suggested later during arguments that the constitution had given state lawmakers and the governor the power to decide when and how often the Legislature should meet. He said that “put in a great big potential door” to hold session like the one in December.
Conservatives currently hold a 4-3 majority on the court, which gives them the power to decide issues like this one if they stick together as a block.
Chief Justice Patience Roggensack, while less aggressive in her questioning, did reference the court’s 2011 decision upholding Act 10, when conservatives gave the Legislature broad leeway to decide its own process.
Liberal Justices Ann Walsh Bradley and Rebecca Dallet did talk, with both justices suggesting it was important to pay attention to the text of the constitution, which doesn’t allow for extraordinary sessions.
“I think that we should all focus on,” Dallet said. “Where is the law that tells us that you can call this extraordinary session?”
Dallet suggested if the Legislature wanted to pass a law allowing for “extraordinary sessions,” they could have done so.
The text of the state constitution only allows for the Legislature to meet “at such time as provided by law” or in a “special” session, which is a session called by the governor. It doesn’t mention “extraordinary sessions,” which are convened by committees of legislative leaders in Wisconsin.
While governors have been calling “special” sessions since shortly after Wisconsin became a state, “extraordinary” sessions are a more recent phenomenon, with the first one convened in 1980.
Republican attorney Misha Tseytlin, arguing for the Legislature, said it would be “remarkable” if the court were to rule against the Legislature on the grounds that it used the wrong name for its December session.
“I think as a matter of inner-branch respect and comity between the branches, that kind of ruling should not be entertained,” Tseytlin said.
Speaking after arguments, Mandell rejected the idea that conservatives had tipped their hand during arguments.
“I know that your job is to present these things in conservative-liberal terms, but the law and the world are more complicated than that,” Mandell told reporters.
“It’s still at the end of the day a constitutional question,” Mandell said. “It’s fundamentally a question of how the government exercises the limited power that the constitution gives it from the people.”
The League of Women Voters case was the first lawsuit filed specifically challenging December’s lame-duck session.
Dane County Judge Richard Niess sided with plaintiffs in March, issuing an order that overturned all the laws passed in the lame-duck session. Niess also invalidated 82 appointees of former Republican Gov. Scott Walker that were confirmed by the state Senate.
Evers seized on the ruling, using one of the powers that had been taken from him during the lame-duck session to direct Democratic Attorney General Josh Kaul to end Wisconsin’s participation in a lawsuit to overturn the Affordable Care Act. Kaul, whose powers had also been limited during the December session, quickly followed suit.
Evers also rescinded the appointments of all 82 Walker appointees, and while he reappointed most of them days later, he blocked others like Public Service Commissioner Ellen Nowak, a longtime Republican aide.
An appeals court stayed Niess’ ruling, putting it on hold while the case was appealed. But that same court ruled unanimously that Evers was in his right to block the appointments after Niess issued his decision.
The state Supreme Court disagreed, ruling all 82 appointees could return to work. In a 4-3 order, the court’s conservative majority wrote that while it was not weighing in on the merits of the case, Niess’ ruling should be stayed because the Legislature had a chance of winning.
The Wisconsin Supreme Court is also handling the appeal of another lame-duck lawsuit brought by Service Employees International Union and others in organized labor. It argues the session violated the state constitution’s separation of powers protections.
Two other lame-duck cases are in federal court. In one, U.S. District Court Judge James Peterson blocked restrictions on early voting passed during the lame-duck session. In the other, the state Democratic Party is arguing that the session violated the U.S. Constitution’s guarantee to a republican form of government where the majority rules.
Listen to the WPR report here.
Wisconsin Supreme Court’s Conservatives Strike was originally published by Wisconsin Public Radio.
More about the Lame Duck Laws
- The State of Politics: An Uphill Fight for ‘Lame Duck’ Challengers? - Steven Walters - May 20th, 2019
- Conservatives Argue Against Lame-Duck Lawsuit - Shawn Johnson - May 16th, 2019
- Op Ed: Constitutional Boundaries Need Enforcement - Erin Grunze - May 10th, 2019
- Supreme Court Restores Lame Duck Appointees - Shawn Johnson - May 1st, 2019
- Former Lawmakers, WILL Enter Extraordinary Session Lawsuit - Wisconsin Institute for Law & Liberty - Apr 23rd, 2019
- Appeals Court Sides with Evers on Appointees - Shawn Johnson - Apr 10th, 2019
- GOP Asks Court to Restore Walker Appointees - Laurel White - Apr 2nd, 2019
- Evers, GOP Fight Over Walker Appointees - Laurel White - Mar 30th, 2019
- Appeals Court Restores Some Lame Duck Laws - Laurel White - Mar 28th, 2019
- Joint Statement: Appellate Court Decision on the Extraordinary Session - Senate Majority Leader Scott Fitzgerald - Mar 27th, 2019
- Majority Leader Scott Fitzgerald Sends Letter to Appointees Impacted By Governor Evers’ Actions - Senate Majority Leader Scott Fitzgerald - Mar 27th, 2019
- Second Judge Rules Against Lame Duck Laws - Laurel White - Mar 27th, 2019
- Arguments Begin on 2nd Lame Duck Suit - Laurel White - Mar 25th, 2019
- Dane County Court’s New Level of Judicial Activism Throws Wisconsin Into Chaos - MacIver Institute - Mar 25th, 2019
- Representative LaKeshia Myers Issues a Statement Regarding the Lame Duck Court Ruling - State Rep. LaKeshia Myers - Mar 21st, 2019
- Judge Blocks Lame Duck Laws - Shawn Johnson - Mar 21st, 2019
- Gov. Evers Releases Statement on Dane County Court’s Ruling on Lame-Duck Session - Gov. Tony Evers - Mar 21st, 2019
- Evers Joins Unions on Lame Duck Suit - Shawn Johnson - Feb 25th, 2019
- Fourth Lawsuit Against Lame Duck Laws - Shawn Johnson - Feb 22nd, 2019
- DPW Files Federal Lawsuit Over Republicans’ Lame-Duck Power Grab - Democratic Party of Wisconsin - Feb 21st, 2019
- Rep. Spreitzer, Sen. Ringhand Propose Lame Duck Limits - State Rep. Mark Spreitzer - Feb 11th, 2019
- Judge Blocks Lame Duck Voting Restrictions - Laurel White - Jan 18th, 2019
- Rep. Jimmy Anderson Seeks to Void the Wisconsin Power Grab - State Rep. Jimmy Anderson - Jan 10th, 2019
- Op Ed: Lame Duck Mischief Defamed the State - Spencer Black - Jan 2nd, 2019
- Campaign Cash: Lame Duck Law Helped Ashley Furniture - Wisconsin Democracy Campaign - Dec 20th, 2018
- Op Ed: Liberals All Wrong on Early Voting Law - Rick Esenberg - Dec 20th, 2018
- Op Ed: We the Irrelevant People - Sheila Plotkin - Dec 19th, 2018
- History Repeats With Latest Post-Election Republican Attack on Early Voting - One Wisconsin Now - Dec 19th, 2018
- Kaul Calls Lame Duck Laws ‘Terrible’ - Mary Kate McCoy - Dec 19th, 2018
- Court Challenge to Voting Restrictions Filed - Laurel White - Dec 18th, 2018
- Murphy’s Law: State Facing Endless Lawsuits? - Bruce Murphy - Dec 18th, 2018
- One Wisconsin Institute Files Request for Court to Enforce Rulings Striking Down Republican Lame Duck Restrictions on Voting - One Wisconsin Institute - Dec 17th, 2018
- Motion to Block Early Voting Restrictions to be Filed Today - Citizen Action of Wisconsin - Dec 17th, 2018
- Carpenter: Require ‘Lame Duck” Bills to Supermajority Votes - State Sen. Tim Carpenter - Dec 17th, 2018
- Op Ed: Lame Duck Bills Too Rushed, Secretive - Erin Grunze - Dec 16th, 2018
- Walker Signs Lame Duck Bills - Laurel White - Dec 14th, 2018
- Rep. Zamarripa Statement on Lame Duck Bills - State Rep. JoCasta Zamarripa - Dec 14th, 2018
- One Wisconsin Institute Announces Coming Legal Action Against GOP ‘Lame Duck’ Voting Rights Attacks - One Wisconsin Institute - Dec 14th, 2018
- Governor Walker just sealed his legacy as the worst Governor in state history - State Sen. Chris Larson - Dec 14th, 2018
- Governor Walker Signs Extraordinary Session Legislation into Law in Green Bay - Gov. Scott Walker - Dec 14th, 2018
- Governor-elect Tony Evers Statement on Kimberly-Clark Announcement - Gov. Tony Evers - Dec 13th, 2018
- Walker Defends Lame Duck Bills - Laurel White - Dec 12th, 2018
- Murphy’s Law: Republicans’ Plan for Permanent Power - Bruce Murphy - Dec 11th, 2018
- Lame Duck Law Adds Work For State Agencies - Rich Kremer - Dec 11th, 2018
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- The State of Politics: 5 Reasons for Republican Power Play - Steven Walters - Dec 10th, 2018
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- City Beat: Episode 002 - Jeramey Jannene - Dec 6th, 2018
- Lame-Duck Bill Changes Highway Funding - Rich Kremer - Dec 6th, 2018
- Murphy’s Law: What Will Scott Walker’s Legacy Be? - Bruce Murphy - Dec 6th, 2018
- Governor Walker: What Will Your Message To Gov.-Elect Evers Be? - State Sen. Tim Carpenter - Dec 6th, 2018
- WI & MI GOP Attempt to Undermine the Voice of Voters, Put Democracy and Safety at Risk - Democratic Attorneys General Association - Dec 6th, 2018
- Your Right to Know: Lame Duck Laws All About Secrecy - Dee J. Hall - Dec 5th, 2018
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- Extraordinary Session Update: Legislature Approves Critical Reforms - Wisconsin Institute for Law & Liberty - Dec 5th, 2018
- Rep. Gwen Moore Statement on Republican Power Grab - U.S. Rep. Gwen Moore - Dec 5th, 2018
- Statement on Lame Duck Session - State Rep. Evan Goyke - Dec 5th, 2018
- Legislature Works Overnight To Curb Evers Power - Shawn Johnson and Laurel White - Dec 5th, 2018
- Governor-elect Tony Evers Statement on Extraordinary Session - Gov. Tony Evers - Dec 5th, 2018
- Republican’s Holiday Gift to Wisconsin: An Assault on Democracy - State Sen. Janis Ringhand - Dec 5th, 2018
- Unprecedented Power Grab Will Break Wisconsin for Years to Come - State Sen. Chris Larson - Dec 5th, 2018
- Senator Taylor Believes GOP Are Taking Career Ending Votes - State Sen. Lena Taylor - Dec 4th, 2018
- Bill Curbing Evers’ Power Moves to Legislature - Shawn Johnson and Laurel White - Dec 4th, 2018
- Extraordinary Session Policy Items Flying Under the Radar - Wisconsin Institute for Law & Liberty - Dec 4th, 2018
- Will Republican Legislature Risk Contempt With Scheme to Enact New Limits on Early Voting? - One Wisconsin Now - Dec 4th, 2018
- Representative Lisa Subeck Statement on the Extraordinary Session - State Rep. Lisa Subeck - Dec 4th, 2018
- Power Tends to Corrupt, Absolute Power Corrupts Absolutely - State Rep. Jimmy Anderson - Dec 4th, 2018
- Governor-elect Tony Evers’ Testimony to the Joint Committee on Finance Opposing Extraordinary Session Legislation - Gov. Tony Evers - Dec 3rd, 2018
- Eight Days After November Election Republican Assembly Leader Robin Vos Requested New Restrictions on Early Voting - One Wisconsin Now - Dec 3rd, 2018
- Op Ed: GOP Bills Change 400 Sections of State Law - State Sen. Kathleen Vinehout - Dec 3rd, 2018
- Rep. Brostoff Statement on Republican Effort to Override Will of Wisconsin Voters - State Rep. Jonathan Brostoff - Dec 3rd, 2018
- Conservation Voters issue statement on lame duck bills - Wisconsin League of Conservation Voters - Dec 3rd, 2018
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- GOP Lame Duck Session Targets Evers - Laurel White - Dec 3rd, 2018
- ACLU of Wisconsin’s Board of Directors condemns lame duck session - American Civil Liberties Union of Wisconsin - Dec 3rd, 2018
- Stop the Wisconsin GOP power grab - Indivisible Madison - Dec 3rd, 2018
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