AP NEWS

Judge to rule Tuesday in second legal challenge to GOP laws curtailing powers of Tony Evers

March 26, 2019

Days after a Dane County judge blocked enforcement of laws curtailing powers of Democratic Gov. Tony Evers and Attorney General Josh Kaul, another judge said he will rule Tuesday in a separate legal challenge to the Republican laws.

Meanwhile, a state appeals court could rule as soon as Tuesday on a request by Republican lawmakers in the first lawsuit to put the controversial laws back in place.

The recent flurry of courtroom action has consumed much of the energy in the state Capitol as state leaders await a verdict on the future of the laws. Adopted by GOP lawmakers and former Gov. Scott Walker in December, the changes included limiting the attorney general’s ability to end the state’s participation in lawsuits, targeting the governor’s power to run the state economic development agency and advance administrative rules, and limiting early voting hours.

Dane County Circuit Court Judge Frank D. Remington presided over a court hearing Monday in the second lawsuit, brought by a group of labor unions. Remington, a Walker appointee and former assistant state attorney general, said he will issue a written ruling by close of business Tuesday.

The complaint in that case contends, in part, that portions of the GOP laws violate the constitutional separation of powers between the legislative and executive branches. Plaintiffs in the case include Service Employees International Union, Milwaukee Area Service and Hospitality Workers, American Federation of Teachers and Wisconsin Federation of Nurses and Health Professionals; and nine individual plaintiffs including state Sen. Janet Bewley, D-Mason.

Attorneys for Evers and Kaul told the court during Monday’s hearing that the laws interfere with the ability of the governor and attorney general to fulfill their duties.

Lester Pines, an attorney for Evers, said the state Constitution makes enforcing the law a function of the executive branch. But Pines said some challenged provisions of the GOP laws violate that principle — including those allowing lawmakers to decide if the state will withdraw from or settle litigation, or allowing lawmakers to intervene in a court challenge to the validity of a state statute.

With those provisions, the Legislature “has granted itself the power to be enforcing the law,” Pines told the court. “That is what the problem is; that is what the overreach is.”

Misha Tseytlin, the former state solicitor general now serving as private counsel to GOP lawmakers, argued that provisions of the laws that give legislative committees new powers are akin to the State Building Commission, in which lawmakers and the executive branch jointly decide which state building projects to approve.

Tseytlin said the provisions allowing lawmakers to get involved in legal challenges to a statute ensure all state laws will be defended in court, even if the Attorney General declines to do so. Evers and Kaul have declined to defend the lame-duck laws in court.

“If the Legislature did not have a seat at the table, what was happening in this courtroom today would look a lot different. Everybody would be sitting over there,” Tseytlin said, gesturing to the plaintiffs’ side of the courtroom where attorneys for plaintiffs, Evers and Kaul were seated.

The hearing unfolded as the state Capitol was still grappling with another ruling on Thursday that temporarily put the GOP laws on hold.

GOP lawmakers asked a state appeals court Friday to put the lame-duck laws back in place, and court filings were due Monday afternoon in response to that request.

Plaintiffs in that case argued the so-called “extraordinary session” used to enact the laws — in which lawmakers call themselves into action outside of a regular session — are invalid and not sanctioned by law or the state constitution. Those plaintiffs included the League of Women Voters of Wisconsin, Disability Rights Wisconsin and Black Leaders Organizing for Communities.

By targeting the session in which the laws were passed, that ruling also temporarily vacated 82 appointments by former Gov. Scott Walker to state councils, boards and other bodies that senators confirmed during the December extraordinary session.

Tseytlin, in that case, has argued the ruling “is already causing serious harm to our state” and could undermine more than 300 other laws or resolutions enacted during extraordinary sessions in the last four decades.