Fallout continued at the state Capitol a day after a judge halted GOP laws curtailing powers of Democratic Gov. Tony Evers and Attorney General Josh Kaul, as Republican lawmakers asked a state appeals court to put the laws back in place.
An attorney for GOP lawmakers, Misha Tseytlin, argued the ruling “is already causing serious harm to our state” and could undermine more than 300 other laws or resolutions enacted in the last four decades.
Dane County Circuit Court Judge Richard Niess’ ruling blocked enforcement of laws enacted by Republicans during the December lame-duck session, days before they relinquished total control of state government.
The ruling also vacated 82 appointments by former Gov. Scott Walker to state councils, boards and other bodies that senators confirmed during the December extraordinary session.
Evers told the state Senate Friday he has withdrawn those appointments and will fill them with his own picks. The posts include a University of Wisconsin System Regent, Scott Beightol, and commissioner of the state Public Service Commission, Ellen Nowak.
“We are committed to working as quickly as possible to fill them and minimize the disruption” to the affected entities, Evers spokeswoman Melissa Baldauff wrote.
A flurry of other legal filings ensued Friday, as Evers’ attorneys and the state Department of Justice sought to weigh in on the case. The court imposed a deadline of 4 p.m. Monday for all parties to respond.
Niess’ ruling was focused on a challenge to the legitimacy of the extraordinary session GOP lawmakers convened in December to pass the legislation, which Walker, a Republican, signed.
Plaintiffs argued extraordinary sessions, in which lawmakers call themselves into action outside of a regular session, are invalid and not sanctioned by law or the state constitution. The plaintiffs included the League of Women Voters of Wisconsin, Disability Rights Wisconsin and Black Leaders Organizing for Communities.
In documents filed Friday in the District III state Court of Appeals, Tseytlin confirmed that Republican lawmakers will appeal Niess’ ruling.
Tseytlin — the former state solicitor general and now an attorney for the Chicago firm Troutman Sanders — warned in a memo that the ruling “will call into grave doubt the validity of over three thousand pages of laws enacted over four decades.”
They include the so-called “right-to-work” law; the law that provided financing for the new Milwaukee Bucks arena, Fiserv Forum; and two-strike laws for child sex predators.
Immediately after the ruling Thursday, Evers and Kaul sought to do at least one thing the laws had barred: withdraw Wisconsin from multi-state legal challenges to the federal Affordable Care Act, also known as Obamacare.
The lame-duck laws that Niess’ ruling blocked limited the attorney general’s ability to control the state’s participation in lawsuits, targeted Evers’ power to run the state’s economic-development agency and limited early voting hours.
Kaul told Evers in January he would not represent him in this case because the manner in which the laws targeted the position of Attorney General created a conflict for the department.
But on Friday, Assistant Attorney General Colin Roth wrote the state appeals court to say state law gives the attorney general the right to be heard in the case.
Evers’ attorneys also wrote the appeals court Friday, asking to be heard.
In a related matter, a state Senate committee voted to give broad authorization to hire any law firms “deemed necessary” for any matters related to the Senate or any challenge to state law. Under a motion approved by paper ballot Friday by the Senate Committee on Organization, Senate Majority Leader Scott Fitzgerald, R-Juneau, would approve all costs and terms of legal services for the Wisconsin Legislature.
A Fitzgerald spokesman, Alec Zimmerman, said he has “no plans to hire additional attorneys” beyond those already hired.
Judge: Constitution bars session
In his decision, Niess said there was nothing in Article IV, Section 11 of the state constitution, which controls when the Legislature meets, or in state statute 13.02, which implements the constitutional mandate, that allows the Legislature to call an extraordinary session on short notice.
Under the state constitution, only the governor may convene a special session, something then-Gov. Scott Walker did not do in this instance, Niess wrote.
“This court cannot uphold the December 2018 ‘extraordinary session’ and remain true to Article IV, Section 11, of the Wisconsin Constitution and (statute) 13.02 as they were written,” Niess wrote. “Through coiled reasoning, the Legislature essentially adds language and meaning to the constitution that the people of Wisconsin did not approve.”
In a brief filed on behalf of the Legislature, Tseytlin wrote that lawmakers for decades have been calling “extraordinary sessions,” otherwise known as “non-prescheduled floor periods,” and that they’re common and uncontroversial.
He also argued that the Legislature was in continuous session from Jan. 3, 2017, to Jan. 7, 2019, as established by joint resolution in January 2017, and that the resolution gave the Legislature the authority to turn some days into floor periods or extraordinary sessions at its option.
But Niess said the statute only directs the Joint Committee on Legislative Organization to create a work schedule early in the biennium, not authorize “extraordinary sessions” in the form of “non-prescheduled floor periods” – a concept, Niess wrote, that appears nowhere in the state constitution.
Allowing the Legislature to make its own rules and meet on short notice would negate the mandates of the state constitution, he wrote, which were designed to prevent Legislative malfeasance.
“Why would the people expressly grant the governor the authority to call the Legislature into session on ‘extraordinary occasions’ but not expressly grant the same authority to the Legislature if that was in fact the people’s intent in adopting Article IV, Section 11?” he asked.
The argument that “extraordinary sessions” have been used in the past is a non-starter, Niess wrote, quoting the late Supreme Court Justice Antonin Scalia, who wrote, “The historical practice of the political branches is, of course, irrelevant when the constitution is clear.”
Therefore, he said, actions taken during the December session are void.
“The legislature’s failure to comply with constitutional procedural requirements for legislative action invalidates the action,” Niess wrote.