The Wisconsin Supreme Court on Thursday delivered a partial defeat to Democratic Gov. Tony Evers and Attorney General Josh Kaul by upholding most parts of the legislation Republican lawmakers passed in late 2018 to curb executive power.
But in a win for Evers, the court struck down a provision of the laws creating more stringent rules for how state agencies develop guidance documents, which are used to tell individuals or organizations how to comply with state law. In attempting to take over a duty previously reserved for the executive branch, justices said, the Legislature overstepped its bounds.
Thursday’s decision, delivered in rulings receiving split support from the seven justices, largely gives a nod — for now, at least — to the Republican Legislature exercising greater authority over the executive branch, and especially the attorney general, both now under Democratic control.
Senate Majority Leader Scott Fitzgerald, R-Juneau, one of the defendants in the lawsuit, praised the ruling.
“Today’s ruling is a victory for the Legislature and all Wisconsinites who want to hold government accountable,” Fitzgerald said. “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.”
But the ruling also remanded the undeveloped portions of the case back to a lower court, opening the door to years of future litigation against the legislation, passed in one overnight lame-duck session in December 2018, after Evers and Kaul had been elected but before they took office.
The case, brought by the Service Employees International Union and others, contended the laws violate the state constitution’s separation-of-powers doctrine. The court heard oral arguments in the case in October.
The case saw noteworthy coalitions of both conservative and liberal-supported justices joining together, underscoring cooperation between the justices, even in a highly charged political case. The ruling comes less than a month before the court’s 5-2 conservative majority will be narrowed when conservative-backed Justice Daniel Kelly is replaced by liberal-supported Justice-elect Jill Karofsky.
In a unanimous decision Thursday authored by conservative-backed Justice Brian Hagedorn, the court upheld parts of the laws that allow the Legislature more say in Capitol security matters; guarantee the Legislature can intervene in many cases using its own attorneys rather than those from the state Department of Justice; and allow the Legislature to repeatedly suspend administrative rules implemented by the executive branch that generally carry the force of law.
But the court’s two liberals, Justices Ann Walsh Bradley and Rebecca Dallet, dissented from the majority’s decision to uphold parts of the laws giving the Legislature a role in the Department of Justice’s settlement of cases. The laws require Kaul to get permission from a GOP-controlled legislative committee to settle lawsuits.
The court issued a 4-3 ruling striking down the portion of the laws making the process for developing guidance documents more stringent. Kelly authored that opinion, arguing that part of the law clearly violated the separation-of-powers doctrine.
“If the legislature can regulate the necessary predicate to executing the law, then the legislature can control the execution of the law itself,” Kelly wrote. “Such power would demote the executive branch to a wholly-owned subsidiary of the legislature. Capturing the executive’s ability to communicate his knowledge, intentions, and understanding of the laws he is to execute makes him a drone without the energy or wherewithal to act as a co-equal member of government.”
Liberal Madison attorney Lester Pines said the majority opinion on guidance documents was the fundamental portion of the case.
“The language that Justice Kelly used was incredibly strong in saying on its face the Legislature had interfered … with the powers of the executive,” Pines said.
Conservative-backed Justice Rebecca Bradley and the court’s two liberal-supported members, Ann Walsh Bradley and Dallet, joined with Kelly. Chief Justice Patience Roggensack, supported by conservatives, issued a separate opinion agreeing with some parts and dissenting with other portions of Kelly’s opinion. Hagedorn issued a separate opinion dissenting in part and concurring in part that conservative-backed Justice Annette Ziegler joined.
The case is the second major lawsuit before the court challenging the lame-duck laws.
The legislation survived the first challenge by the League of Women Voters and others who argued they were unconstitutional because Republicans erred in the process they used to call the Legislature back into session to pass them.
In a statement, Evers accused the Republicans of “sour grapes” by seeking to limit his power after they lost the governor’s office.
“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,” Evers said in a statement.
“But I’m not going to let that stop me from continuing to do what I promised I would when I ran for this office — I am going to keep putting people first and doing what’s best for the people of our state.”
Lucas Vebber, deputy counsel for the conservative Wisconsin Institute for Law and Liberty, which is frequently involved in high-profile political lawsuits, said it was clear the laws were constitutional but added he was “disappointed” the court struck down the guidance document provision, which he said provided more transparency.
Kaul said the decision opened the door for potential future litigation.
Legal challenges to the application of the laws — especially as they relate to the Department of Justice — are “inevitable,” Kaul said, adding the laws as they currently stand are unconstitutional.
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