Appeals court sides with Gov. Tony Evers' appointments as Senate leader puts off confirming his cabinet

MADISON - An appeals court Tuesday declined to reinstate 15 appointees of former Gov. Scott Walker, handing a victory to Gov. Tony Evers amid an escalating fight over attempts to limit the powers of the Democratic governor. 

The unanimous decision came just hours after the leader of the state Senate said he was holding off on confirming Evers' cabinet because of the dispute over the Walker appointees.

"I think some of those cabinet members are going to be in trouble," Senate Majority Leader Scott Fitzgerald of Juneau said of Evers' top advisers.

Republicans said they would take the case to the state Supreme Court to try to overturn it.

The dispute springs from a lame-duck session Republicans held in December to confirm 82 Walker appointees and pass laws trimming the powers of Evers and Democratic Attorney General Josh Kaul before they were sworn in. 

Four legal actions have been filed over the lame-duck session.

In one case, Dane County Circuit Judge Richard Niess last month ruled all actions taken during the session were invalid. In response, Evers rescinded the 82 appointments made by Walker.

Days later, the District 3 Court of Appeals reversed Niess and the two sides immediately began arguing over whether the Walker appointees continued to hold their posts. 

Evers has since reinstated 67 of the 82 Walker appointees, erasing doubts about whether they can continue to serve.

But he has not acted on the other 15 appointments. He contended those jobs are vacant, while Fitzgerald and other Republicans said they were still held by the Walker appointees.

The Court of Appeals on Tuesday sided with Evers, noting he withdrew the appointments when the only court order in effect had found their confirmations were invalid. 

"In short, if the governor had the authority to withdraw the nominations pursuant to the temporary injunction while that injunction was in place, then the withdrawals were valid and are not affected by our subsequent stay of the injunction," the judges wrote. 

The decision was reached by Judge Mark Seidl, who was elected in 2015; Judge Thomas Hruz, who was appointed by Walker in 2014; and Judge Lisa Stark, who was appointed by Walker in 2013 just before her election. She was the only candidate on the ballot.

The judges noted if courts ultimately side with Republicans in the underlying lawsuit, they can determine then whether the Walker appointees should get their positions back.

Evers spokeswoman Melissa Baldauff said Republicans had "recklessly" confirmed Walker's appointees in December and argued the state deserves better from them. 

"As the governor has repeatedly said, he acted properly and within the law to withdraw those improper appointments and make his own valid appointments," she said in a statement.

The appointments include ones on the University of Wisconsin System Board of Regents, the Public Service Commission and the Labor and Industry Review Commission.

The PSC regulates utilities and the other commission handles workplace disputes. Both consist of three members and there is a risk of them deadlocking while they are shorthanded. 

Evers has revoked the appointments of the PSC's Ellen Nowak and the Labor and Industry Review Commission's Georgia Maxwell.

Evers chief of staff Maggie Gau alerted Fitzgerald to Evers' plan to rescind the appointments just before he did so last month, according to Fitzgerald. He said he warned Gau that the governor shouldn't take such a step. 

“I said, 'I think that’s going to cause some trouble in the caucus. That’s not going to be well received,’ ” Fitzgerald told reporters. "And my prediction was right. It wasn’t. People are pretty upset about Ellen and about Georgia.”

After the appeals court issued its decision, Fitzgerald said lawmakers would appeal the ruling to the state Supreme Court. Earlier in the day, he said he was pleased conservative Judge Brian Hagedorn won a seat on the high court last week.

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Hagedorn will replace liberal Justice Shirley Abrahamson, who did not seek re-election. He will join the high court in August and his addition will widen the conservative majority from 4-3 to 5-2.

"Thank God for Brian Hagedorn," Fitzgerald said. "I can’t wait for him to be seated."

Two of the lame-duck cases are in state court and can eventually get to the Wisconsin Supreme Court. The other cases are in federal court.

For now, the Republican Senate isn't acting on Evers' cabinet because of the dispute over the Walker appointees. It's unclear how Tuesday's court decision will affect what the Senate does next. 

The Democratic governor's cabinet secretaries are able to do their jobs without confirmation, but Fitzgerald's approach gives Republicans the ability to push them out of their jobs with little notice.  

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Speaking before the court issued its decision, Evers said a delay in confirming his cabinet would not affect how he handles appointments. He said he saw Fitzgerald's comments as "the huffing and puffing that goes on" in the Capitol rather than a form of retribution. 

"This will be resolved at some point. Whether it’s retribution or not, it’s not going to work," Evers told reporters.

"It’s just important that the hard feelings that were expressed by the senator don't carry over into the day-to-day work of these important agencies." 

Assembly Speaker Robin Vos questioned why Evers is fighting over the Walker appointees when he has not yet made other appointments, such as ones to lead the Wisconsin Housing and Economic Development Authority and the Higher Educational Aids Board.

"I feel like they’re so focused on being political, scoring points, trying to fill all these things, I think most people say, 'Wait a minute, how come you’re not doing your day job?' " the Rochester Republican said.

Democrats called the decision to put off confirming Evers' cabinet petty and obstructionist. 

“The political theatrics from Republican leaders are getting old," said a statement from Senate Minority Leader Jennifer Shilling of La Crosse.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.