Hours before a trial was set to start, Wisconsin Supreme Court reinstates most GOP lame-duck laws

Milwaukee Journal Sentinel

MADISON - The state Supreme Court late Tuesday reinstated most of the lame-duck laws Republican lawmakers approved in December to trim the powers of the state's top Democrats.

With a pair of 4-3 orders, the high court canceled a trial that was to commence Wednesday and put back in place almost all the lame-duck laws while it considers an appeal.

Under one of the most significant aspects of the rulings, Democratic Attorney General Josh Kaul — at least for the time being — will have to get the approval of a committee of lawmakers before settling lawsuits. Under another, the Evers administration will have to take public comments for weeks before publishing certain documents.

After Tuesday's rulings, just two provisions of the lame-duck laws have been kept from going into effect. One would have limited early voting; the other would have required a public commenting period for older government documents.

The status of the laws could change in the months ahead because the Supreme Court has to make more rulings in the case, as well as another one. A federal judge is overseeing another challenge to the lame-duck laws that is in its early stages.

"Today’s ruling is a win for the people of Wisconsin," said a statement from state Senate Majority Leader Scott Fitzgerald, R-Juneau. "The Supreme Court correctly decided the statutes enacted by the Legislature should remain in effect. We are confident that the constitutionality of these laws will be upheld when the court hears the full case in the coming months."

Lester Pines, an attorney for Democratic Gov. Tony Evers, said Tuesday's rulings will greatly slow the ability of the Evers administration to respond to routine questions from the public because it will have to take public comments for 21 days on documents it drafts before officially publishing them.

"I think it's important for the public to know if they send an email about how to comply with the law that it is entirely possible that the response to the email will be substantially delayed," Pines said.

The rulings came 15 hours before a two-day trial was to begin in Dane County Circuit Court over the provision of the lame-duck law on government documents.

Conservatives on the court canceled the trial by staying proceedings while the high court considers an appeal of initial decisions in the case. In a separate ruling, the same justices ordered the reinstatement of most of the lame-duck laws while they consider the case.

Backing the reinstatement of the laws were Chief Justice Patience Roggensack and Justices Rebecca Bradley, Daniel Kelly and Annette Ziegler. Dissenting were the court's liberals — Shirley Abrahamson, Ann Walsh Bradley and Rebecca Dallet. (The Bradleys are not related.)

More decisions to come

In an overnight session in December, Republican lawmakers approved legislation to limit the powers of Evers and Kaul just before they took office. A flurry of lawsuits followed.

In one, arms of the Service Employees International Union alleged the lame-duck laws violated the state constitution's separation-of-powers doctrine, which delineates what actions each branch of government can take.

In March, Dane County Circuit Judge Frank Remington initially blocked some provisions of the laws, including ones that spelled out how government documents had to be written and another that limited Kaul's ability to settle lawsuits.

Wednesday's trial was meant to determine whether a more lasting order should be issued on how government documents are published. (A subsequent trial this fall was expected to determine the future of other parts of the laws.)

Tuesday's orders halted proceedings before Remington. The Supreme Court in April agreed to take part of the case, but with Tuesday's orders assumed more control over it.

Three other challenges have been filed over the lame-duck laws.

The state Supreme Court last month heard arguments in a lawsuit brought by the League of Women Voters of Wisconsin and other groups that contends legislators brought themselves into session illegally and all its actions should be declared invalid. The high court is expected to rule in that case this summer.

In another case, a federal judge struck down a provision in the lame-duck laws that would have limited early voting.

In the last case, the state Democratic Party alleges the lame-duck laws violated the First Amendment rights of Democratic voters. That case is in its early stages.

Attorney general's power

For now, attention turns to the provisions of the lame-duck laws that had been blocked.

Historically, the attorney general has overseen litigation. Kaul this year — at a time when parts of the lame-duck laws were blocked — used his powers to get the state out of a lawsuit over the Affordable Care Act, which is widely known as Obamacare.

Now, he will have to get approval from the Legislature's Joint Finance Committee to take similar actions in other lawsuits.

“This litigation will continue," Kaul said in a statement. "We will continue to stand up to the Legislature’s unconstitutional attempt to undermine (the Department of Justice's) ability to get justice for Wisconsinites.”

Under the latest rulings, the Evers administration will need to begin following the part of the lame-duck law that requires it to allow for a 21-day commenting period before adopting "guidance documents" that tell the public how it will implement or enforce state rules and laws.

Evers and the unions bringing the lawsuit argue the definition of "guidance documents" is so broad that it would apply to thousands of documents, including emails government workers send to Wisconsin residents about routine matters. That could cripple the ability of the executive branch to provide information to the public, they contend.

GOP lawmakers argue they have the right to determine how state agencies communicate with the public. They say the state Department of Natural Resources voluntarily adopted a similar process for regulatory documents under former Gov. Scott Walker.

In his initial ruling in March, Remington concluded the requirement for guidance documents was a "cumbersome burden" that "substantially and unreasonably interferes with the orderly operation of the various state agencies to which they apply."

The Supreme Court is letting that provision go into effect for documents that have been written since March and that will be written in the future. But it blocked a requirement that older documents be revoked if they didn't go through a commenting period before this July.

You can find out who your legislators are and how to contact them here: https://maps.legis.wisconsin.gov/

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