Liberal-Leaning Groups Bring Lawsuit Over Wisconsin's Lame-Duck Session

Jan 11, 2019

Several Democratic-leaning groups in Wisconsin are challenging bills Republicans passed in December that limit the powers of the state's new Democratic governor and attorney general. The groups argue it was illegal for lawmakers to call themselves into session to take up the bills.

One lawsuit filed this week doesn’t address the contents of the bills, but instead, takes issue with the procedure lawmakers used to pass them. The lawsuit was filed by a coalition of the League of Women Voters of Wisconsin, Disability Rights Wisconsin, Black Leaders Organizing for Communities — and three voters.

They're challenging laws that came out of the so-called "extraordinary" session that Wisconsin Republicans held just a few weeks after Democrat Tony Evers defeated then-Republican Gov. Scott Walker. Evers and other Democrats have blasted the bills that came out of the session. Some accuse Republicans of being sore losers after the election. Others say the session was a legislative overreach and violated separation of powers — between the legislative and executive branches.

The plaintiffs in this lawsuit aren’t arguing about the content of the bills, though, they’re arguing about procedure. The plaintiffs’ attorney Jeffrey Mandell says the lawsuit is focusing on one question: “Whether the December 2018 extraordinary session was properly convened in accordance with the Constitution’s procedural requirements for the Legislature to meet. That’s the only question that we’re raising.”

Mandell says there are only two times that lawmakers can convene when not in regular session:

  • If the governor calls them into special session
  • When “provided by law”

Since no one is contending the legislature was called into session by the governor, he says the question is: was the session “provided by law?”

Mandell says no. That's because the legislature used a “joint rule” to convene the extraordinary session, not a statute.

“That joint rule is passed through a joint resolution that passes both houses of the legislature," he says. "But it is not presented to the governor. It is not signed by the governor or passed over the governor’s veto. And it is not styled as a bill. And those are all additional requirements under the Wisconsin Constitution, for something to be a law.”

Attorney Rick Esenberg, of the conservative Wisconsin Institute for Law and Liberty, thinks it’s unlikely a court would interpret the language, “provided by law,” that narrowly. He says both Democrats and Republicans have used the joint rule to convene extraordinary sessions for decades. 

“It seems to me that in the circumstance that's been in existence for over 40 years now, and has been used multiple times to call extraordinary sessions and pass law, that that it’s going to be very, very difficult for the plaintiffs to convince a court that it ought to intervene in the legislative process,” Esenberg says.

Republican Senate Majority Leader Scott Fitzgerald says the lawsuit is frivolous. He issued a statement saying, in part, “this is nothing more than liberals yet again throwing a tantrum and running to the Dane County Circuit Court when they lose a legislative fight.”

But others disagree.

“It seems like there may be something to this,” says Miriam Seifter, an assistant professor of law at the University of Wisconsin Law School. She says state constitutions across the country are chock full of limits to legislative procedure. “And those rules are binding, just like other constitutional provisions. Many of these limits on legislative procedure and legislative meetings were enacted long ago in response to perceived legislative excesses or corruption.”

But Seifter says there is the question: Why hasn’t this type of claim come up before given that the Wisconsin Legislature has been convening this way for years?

“One thing that I’ve seen in my research is that people often don’t pay a whole lot of attention to state constitutional law, so there can be provisions like this that fly under the radar until some major conflict illuminates them,” she says.