At Supreme Court hearing on lame-duck laws, conservative justices skeptical of claims GOP acted improperly

Milwaukee Journal Sentinel

MADISON - Conservatives who control the state Supreme Court expressed skepticism Wednesday that Republican lawmakers acted unconstitutionally when they held a lame-duck session in December to curb the powers of the incoming Democratic governor.

The high court — controlled 4-3 by conservatives — must decide whether a method lawmakers have used to bring themselves into session for nearly 40 years is valid. GOP legislators contend a ruling against them could cause hundreds of other laws passed since 1980 to fall.

Some of the conservatives appeared dubious at the notion that lawmakers couldn't hold session whenever they saw fit, as those who have sued the state argue.

"Doesn’t (a provision of the state constitution) mean the Legislature can determine for itself when it meets?" asked Justice Rebecca Bradley.

Likewise, Justice Daniel Kelly noted the state constitution allows lawmakers to establish their own rules for how they operate. The lawmakers' work schedule "seems to be rules of its own proceedings, doesn’t it?" he asked.

Chief Justice Patience Roggensack also appeared suspicious of the arguments brought by those suing over the lame-duck session, but the court's fourth conservative, Justice Annette Ziegler, stayed quiet during the arguments. Two of the liberal justices signaled they agreed with those bringing the lawsuit.

Jeffrey Mandell, an attorney representing groups challenging recent lame-duck laws, during oral arguments at the Wisconsin Supreme Court in at the state Capitol in Madison.

The case is one of three challenges over the recent lame-duck laws that courts are considering. The state Supreme Court has taken an aspect of one of the other cases but hasn't said when it will hold arguments. The third case is in federal court.

All three are aimed at undoing laws Republicans passed after Democrats won all statewide offices but before they were sworn in. Gov. Tony Evers and Attorney General Josh Kaul contend the measures improperly took authority away from them and groups backing them filed the lawsuits.

The laws are broad. They require a committee of legislators, rather than the attorney general, to sign off on any court settlements; put lawmakers in charge of signing off on any changes to public benefits programs; require the Evers administration to rewrite thousands of government documents and websites; and give lawmakers the ability to more easily block rules written by the Evers administration and intervene in lawsuits challenging state laws.

The case argued Wednesday was brought by the League of Women Voters of Wisconsin, Black Leaders Organizing for Communities and Disability Rights Wisconsin. Their lawsuit centers on how legislators brought themselves into session.

To pass the lame-duck laws, legislators held what's known as an extraordinary session, in which they bring themselves to the Capitol when they're not scheduled to be there.

Jeffrey Mandell, an attorney for the League of Women Voters of Wisconsin and other groups, during oral arguments at the Wisconsin Supreme Court.

The groups argue such sessions aren't allowed because the state constitution says lawmakers can meet only when called into a special session by the governor or as "provided by law." State law does not explicitly describe extraordinary sessions.

Misha Tseytlin, the attorney for the lawmakers, argued legislators are allowed to hold extraordinary sessions because they establish a schedule at the beginning of each two-year term that says they can hold meetings at any time. He contended lawmakers effectively were in a nonstop meeting for two years, with the lame-duck session an extension of a meeting that began in January 2017.

Two liberal justices were skeptical of that claim, saying legislators were trying to erase any differences between extraordinary and regular sessions despite distinguishing between the two for years.

"How can regular sessions be extraordinary?" Justice Rebecca Dallet asked.

"In fourth-grade nomenclature, special isn’t regular," Justice Ann Walsh Bradley said.

But Kelly countered that the terms lawmakers use are less important than the authority they have to determine when they meet. Lawmakers appear to have the power to establish a schedule that is "broad and amorphous" if they want, he said.

Dane County Circuit Judge Richard Niess in March determined those bringing the lawsuit were likely to succeed and invalidated the lame-duck laws. An appeals court reinstated them that month, but some of the lame-duck laws are still sidelined because of rulings in other cases.

The Supreme Court last month agreed to take the case before the appeals court finished its work on it. It is expected to rule by this summer.

In August, the conservative majority on the court will expand from 4-3 to 5-2 because conservative Judge Brian Hagedorn will replace retiring liberal Justice Shirley Abrahamson. Abrahamson did not ask any questions Wednesday.

Also at issue in the case is the state Senate's confirmations during the lame-duck session of 82 appointments made by former Gov. Scott Walker. Niess in March blocked the confirmations, but the Supreme Court last month found the Walker appointees could continue in their posts for now.

Lawmakers have said a ruling against them could endanger laws that have been passed in extraordinary sessions over the last four decades. Legislators have used extraordinary sessions to pass hundreds of laws, including ones toughening penalties for child sex offenders and providing public funding for the Fiserv Forum, the new Milwaukee Bucks arena that will host the 2020 Democratic National Convention.

Tamara Packard, an attorney for Gov. Tony Evers, speaks during the oral arguments before the Wisconsin Supreme Court.

The Supreme Court is also considering an initial appeal of a second case, brought by unions, that contends some of the lame-duck laws violate the state constitution's separation-of-powers doctrine. In that case, Dane County Circuit Judge Frank Remington in March blocked some of those laws.

The Supreme Court hasn't indicated when it will hold arguments or rule on the initial appeal in that case. A trial in Dane County is scheduled to begin June 12 and it's unclear if the Supreme Court will act on the case before then.

U.S. District Judge James Peterson is considering a third case that argues the lame-duck laws violate the First Amendment rights of Democrats. That case, filed by the state Democratic Party, is in its early stages.

Peterson in a separate case in January blocked early voting limits that were included in one of the lame-duck laws. That ruling has not been appealed.

Editor's note: Photo captions in this story have been updated to correctly identify the parties. Jeffrey Mandell is an attorney for the League of Women Voters, not Republican lawmakers. Tamara Packard represents Gov. Tony Evers, not the league.

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