Conservative and liberal state Supreme Court justices pressed attorneys on both sides of a lawsuit targeting the Wisconsin's lame-duck laws during a lengthy round of oral arguments Monday.
While the court, which has a 5-2 conservative majority, peppered lawyers representing the Legislature, governor, attorney general and others with a series of questions, justices also seemed to signal an openness to some arguments from Democrats during the first hour of comments.
The arguments came in a case that was filed in February by five unions and alleges the December 2018 extraordinary session violated the separation of powers by limiting the authority of the incoming attorney general and governor.
The laws require Democratic Attorney General Josh Kaul to get approval from a Republican-controlled legislative committee to settle cases, allow the Legislature to hire its own attorneys and get involved in lawsuits and more.
They also include portions governing guidance documents, though much of the comments on Monday surrounded the attorney general's settlement authority.
For example, justices levied a series of questions against the Republican lawmakers' attorney, Misha Tseytlin, surrounding the nature of the attorney general’s power — and to what extent that authority can be withdrawn from the office.
“You can’t take everything away from the attorney general. There’s got to be something that remains,” conservative Chief Justice Pat Roggensack said after Tseytlin argued lawmakers have the authority to strip Kaul of all his powers if they want.
Meanwhile, liberal Justice Rebecca Dallet noted that based on Tseytlin's arguments, the Legislature would be able to "grind to a complete halt any kind of litigation" the AG is spearheading.
Tseytlin, though, countered the laws don't include provisions that go "anywhere close to taking away all of (the attorney general's) powers."
He also sought to categorize the attorney general's office as a "hybrid" position that isn't part of the executive branch and exercises "administrative" powers, essentially serving as a fourth branch of government.
The point was challenged by a couple justices, both liberal and conservative, during Tseytlin's comments, as well as later in the oral arguments by Matt Wessler, a lawyer representing the unions.
In all, the court heard some two-and-a-half hours of oral arguments, more than twice as long as usual due to the “significance” of the matter and the number of parties involved, Roggensack said.
Around an hour was taken up by Tseytlin, while Kaul and attorneys for Gov. Tony Evers and the unions shared the remaining time, which consisted of similarly pointed questions from the court.
Justices repeatedly asked Wessler and Kaul to answer questions about the extent of the unconstitutionality of the lame-duck laws and whether there are appropriate situations in which the Legislature can, for example, intervene in a case.
During his comments, Kaul argued the Legislature could have used the laws to give itself “a right to be heard and act independently,” but instead the language aims to influence the executive branch.
“What (the Legislature) cannot do is force the executive branch to act in a particular way,” he said. “That is what violates the separation of powers.”
In the suit, a Dane County judge this spring initially blocked some parts of the laws, including portions governing guidance documents and Kaul’s authority as attorney general. But the state Supreme Court later took over the case and reinstated most of those provisions.
The case is one of four challenging the lame-duck laws. The court previously opted to uphold the laws in a separate suit over the summer that argued they were invalid because the session wasn't lawfully convened under the state's Constitution.
In the other suits, two have been rejected while a federal judge in the other opted to overturn restrictions to early voting that were included in the laws.