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Wisconsin Supreme Court upholds lame-duck laws stripping power from governor, AG

Wisconsin Supreme Court upholds lame-duck laws stripping power from governor, AG

Wisconsin Supreme Court (copy)

The Wisconsin Supreme Court issued its highly anticipated decision Thursday in a case targeting the state's lame-duck laws that were enacted during a December 2018 extraordinary session.

The Wisconsin Supreme Court Thursday ruled to uphold most Republican-backed lame-duck laws approved in late 2018 that limited the power of the incoming Democratic governor and attorney general. 

But the justices struck down some provisions of the laws governing so-called "guidance documents," which instruct individuals or entitles on how to comply with state agency rules, though the decision left open the potential for ongoing litigation.  

While the five unions that brought the initial challenge argued the laws violated the state constitution's separation-of-powers doctrine and thus should be rejected, the court largely rejected the premise and found that wasn't the case across the board. 

The highly anticipated, multi-part decision comes a year-and-a-half after the December 2018 extraordinary session when lawmakers and outgoing Republican Gov. Scott Walker acted to increase the Legislature’s oversight of the administration by giving lawmakers the power to sign off on some court settlements, intervene in legal challenges to state laws, suspend administrative rules multiple times and more. 

The state's top Democrats slammed the ruling and Republicans for championing the laws in the first place.  

"From the lame duck laws and challenging my veto power, to Safer at Home and holding an unsafe election this past April, clearly Republicans are going to continue working against me every chance they get, regardless of the consequences," Gov. Tony Evers noted. 

Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, who helped get the laws through the Legislature, applauded the move in separate statements as a win for those seeking to keep government accountable and the branches co-equal. 

“A rogue attorney general can no longer unilaterally settle away laws already on the books and unelected bureaucrats can’t expand their powers beyond what the people have given them through their representatives," said Fitzgerald, R-Juneau. 

The decision was delivered in separate writings, with Justice Brian Hagedorn writing for the conservative majority in a 5-2 ruling relating to the powers of the Department of Justice and others.

Though the justices found the laws were constitutional on their face, they left open the possibility for further specific challenges. Hagedorn, for example, noted several provisions the unions challenged weren't argued or were barely raised before the court.

"We do not step out of our neutral role to develop or construct arguments for parties; it is up to them to make their case," he wrote, adding the claims could continue over the "ordinary course of litigation on remand" to the Dane County Circuit Court. 

Fellow conservative Justice Daniel Kelly, who lost his election bid in April, wrote for the majority on the ruling over guidance document provisions -- in particular, overturning provisions setting new regulations on the process including a mandated public hearing and certification by agency heads.

Kelly argued Republicans' move to require the executive branch follow a stipulated procedure before communicating with the public through the issuance of guidance documents "invaded the executive branch's exclusive province to 'take care that the laws be faithfully executed.'"

"The legislature may enact the laws the executive is duty bound to execute," he wrote. "But it may not control his knowledge or intentions about those laws.  Nor may it mute or modulate the communication of his knowledge or intentions to the public." 

The case is one of Kelly's last as a member of the bench. Next month, he'll be replaced by Dane County Circuit Court Judge Jill Karofsky, at which point the court's 5-2 conservative majority will be narrowed to 4-3. 

The laws were initially passed in the wake of Evers and fellow Democrat Josh Kaul winning election in fall 2018, spurring a series of lawsuits. Liberals have largely been unsuccessful in their attempts to overturn portions of the laws. 

For example, although a Dane County judge in March 2019 temporarily put many of the laws on hold, the Supreme Court that summer made the provisions largely enforceable again, aside from parts surrounding guidance documents. 

Wisconsin justices also previously rejected a challenge to the lame-duck laws in a separate case, making Thursday's decision the second time they sided with Republicans over the laws.

Specifically, in June 2019, the court's conservative majority ordered the laws to be upheld under a suit brought by the League of Women Voters and other groups that argued the session wasn't lawfully convened under the state's constitution, rendering the laws invalid. 

In a separate case that delivered a win for liberals, a federal judge ruled in January 2019 against Republicans in a challenge targeting the laws that reigned in the availability of early voting and made adjustments to the state's photo ID voting requirement. 

Specifically, the early voting changes under the lame-duck law limited it to "no earlier than 14 days preceding an election and no later than the Sunday preceding the election." 

But parts of that victory were rolled back late last month when a panel of federal judges unanimously reinstated limits on early voting in a separate decision that took three years to be returned. 

The court did uphold a decision allowing college students to use expired student IDs to vote -- something that was prevented in the lame-duck law and also overturned in the January 2019 ruling. 

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Briana Reilly covers state government and politics for the Cap Times. She joined the staff in 2019, after working at WisPolitics.com. Follow her on Twitter at @briana_reilly.

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