Wisconsin Supreme Court Hears Arguments In Lame-Duck Lawsuit

May 15, 2019

The Wisconsin Supreme Court heard arguments Wednesday in one of the challenges to laws the Republican-controlled Legislature passed in December's lame-duck session. The laws were designed to limit the powers of Democratic Gov. Tony Evers and Democratic Attorney General Josh Kaul.

Republican lawmakers called the Legislature into a so-called extraordinary session in December to pass the laws. The measures limit Evers’ and Kaul’s powers in a number of ways. For instance, the laws forbid Evers from withdrawing from lawsuits without legislative permission and give lawmakers the right to intervene in lawsuits.

READ: Key Takeaways From The Wisconsin Legislature's Extraordinary Session

A coalition of liberal-leaning groups challenged the laws in January, arguing that extraordinary sessions are illegal. Attorney Misha Tseytlin is representing Republican lawmakers in the case. He argues the Legislature met legally because it never dissolved itself after finishing its scheduled work in the spring of 2018.

“Sometimes new needs do arise. Sometimes the Milwaukee Bucks threaten to leave town and the Legislature has to come back in and fund and authorize an arena so the Milwaukee Bucks don’t move out of state, or some other things may occur. And that’s exactly why the Legislature doesn’t dissolve itself at the end of the last prescheduled floor period,” he says.

(From left) Wisconsin Assembly Speaker Robin Vos (R-Burlington) and Speaker Pro Tempore Tyler August (R-Lake Geneva) listen as Democrats address the Assembly during a contentious legislative session on Dec. 4, 2018 in Madison, Wis.
Credit Andy Manis / Getty Images

Tseytlin cites what’s known as a joint rule, which he says allows the Legislature to call itself into extraordinary session to deal with additional business that may come up during the course of a year. Supreme Court Justice Rebecca Dallet, whom Democrats supported in last year’s election, presses the Republicans’ attorney on the use of the rule.

“We’re looking at the constitution, which talks about ‘the Legislature shall meet at such time as provided by law, unless convened by the governor in special session.’ Now, I think you would agree that the joint resolution is not a law because it hasn’t passed both houses and is signed by the governor. Correct? So, the only law we have to look at that governs the sessions is 13.02 which is called regular session,” she says.

READ: The Legal Implications Of Wisconsin Legislature's Reach Into Attorney General Powers

After Tseytlin finished his arguments, Jeffrey Mandell spoke to the court. He represents the League of Women Voters and several other groups that brought the lawsuit. Mandell argues that the Legislature acted illegally when it met in extraordinary session. At one point in Mandell’s argument, conservative-leaning Justice Rebecca Bradley interjects with a question.

Mandell: “It certainly is not enough to exceed, to allow the Legislature by including in there a line that says 'Well, we reserve the right to turn any day that we possibly want into some other kind of session that is nowhere else provided by law.' ”

Bradley: “Are you arguing that floor periods are constitutional, but extraordinary sessions are not constitutional?”

Mandell: “Extraordinary sessions would be constitutional if they were provided by law. There is no law that provides for extraordinary sessions.”

A Dane County judge sided with the opponents of the lame-duck laws in March and invalidated all actions taken during the lame-duck session. Then, Republicans asked the Supreme Court to take the case. The high court leans conservative by one vote. It plans to issue a ruling at a later date.

Several other lawsuits related to the lame-duck session are also brewing. They include challenges from some labor unions, as well as the Democratic Party of Wisconsin and a complaint from state Rep. Jimmy Anderson (D-Fitchburg). Anderson uses a wheelchair and argues that Republican leaders broke the law by not telling him when the early-morning votes would be. As a result, Anderson wasn’t present for those votes.