Wisconsin Institute for Law & Liberty
Press Release

Wisconsin Supreme Court Sides with Legislature in Critical Separation of Powers Case

WILL filed amicus urging Supreme Court to allow Legislature to defend state law

By - Oct 6th, 2020 05:36 pm

The News: The Wisconsin Supreme Court, in a 4-3 decision, held that the Wisconsin Legislature does have standing to defend state law when the Attorney General does not defend it. The Wisconsin Institute for Law & Liberty (WILL) filed an amicus in the case before the Court, DNC v. Bostelmann, that warned that a federal appellate court’s interpretation of Wisconsin law “poses an existential threat to the separation-of-powers principles our state and country are founded upon.”

The Quote: WILL Deputy Counsel Luke Berg said, “We are pleased that the Court agreed that the Wisconsin Legislature can defend laws where the Attorney General refuses to do so. If this were not so, the state would have no lawyer and a single judge’s decision to change election procedures on the eve of an election would evade review by higher courts.”

The Background: The controversy over standing stems from four consolidated lawsuits that challenge various Wisconsin election laws. The Attorney General withdrew from the cases early on and the Wisconsin Elections Commission has not defended the laws in federal court. The Wisconsin Legislature intervened, as state law permits, and offered a robust defense of those laws. When the District Court ordered changes to some of Wisconsin’s election laws, just a few months before the November election, the Legislature appealed to the Seventh Circuit Court of Appeals, but the panel initially held that the Legislature does not have standing to defend state law in federal court. At the Legislature’s request, the federal court agreed to certify that question to the Wisconsin Supreme Court.

WILL filed an amicus brief that made a clear and straightforward argument to the Court about why it is critical to allow the Wisconsin Legislature to defend state law in federal court when others, typically charged with doing so, do not. The amicus articulates the stakes: “When, as here, the Attorney General bows out and the named government defendants roll over, the Legislature must be permitted to intervene to defend state law; otherwise a single judge will be able to rewrite state law with impunity, totally upending our system of checks and balances.”

In the wake of the Wisconsin Supreme Court’s decision, the matter heads back to the Seventh Circuit Court of Appeals.

Mentioned in This Press Release

People:

Recent Press Releases by Wisconsin Institute for Law & Liberty

Surplus Property Law Results in Just One Vacant Milwaukee School Sale to Charter School

WILL Policy Brief revisits how state law was thwarted by local actors for the last five years

Wisconsin Supreme Court Sides with Legislature in Critical Separation of Powers Case

WILL filed amicus urging Supreme Court to allow Legislature to defend state law

Leave a Reply

You must be an Urban Milwaukee member to leave a comment. Membership, which includes a host of perks, including an ad-free website, tickets to marquee events like Summerfest, the Wisconsin State Fair and the Florentine Opera, a better photo browser and access to members-only, behind-the-scenes tours, starts at $9/month. Learn more.

Join now and cancel anytime.

If you are an existing member, sign-in to leave a comment.

Have questions? Need to report an error? Contact Us