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Judge blocks laws limiting powers of Wisconsin governor

In this Aug. 14, 2018, file photo, Tony Evers speaks after winning Wisconsin's Democratic gubernatorial primary election during an event in Madison, Wis. Photo: Amber Arnold/Wisconsin State Journal via AP, File
In this Aug. 14, 2018, file photo, Tony Evers speaks after winning Wisconsin's Democratic gubernatorial primary election during an event in Madison, Wis.

March 21, 2019 05:06 PM

A judge on Thursday temporarily blocked Wisconsin Republicans' contentious lame-duck laws limiting the powers of new Democratic Gov. Tony Evers, who immediately used his restored authority to pull the state out of a multistate challenge to the Affordable Care Act.

Dane County Circuit Judge Richard Niess brushed aside GOP concerns that striking down the lame-duck laws would leave thousands of other statutes passed in so-called extraordinary sessions susceptible to challenge.

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Republican legislative leaders vowed to appeal and predicted the ruling would ultimately be overturned. Wisconsin's Supreme Court, which would have the final say, is controlled 4-3 by conservatives.

"It truly is March Madness...disappointed, but not surprised that yet another Dane County judge has issued a partisan political ruling that will inevitably be overturned by a higher court," Republican Assembly Majority Leader Jim Steineke tweeted.


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Evers called the ruling a victory, saying Republicans went too far with the lame-duck laws.

Lawmakers passed the lame-duck laws during a December extraordinary session, which is a previously unscheduled floor period initiated by majority party leaders. A coalition of groups headlined by the League of Women Voters sued in January, arguing the Legislature can't meet that way.

The groups contend the Wisconsin Constitution allows lawmakers to convene only at times  laid out in a law they pass at the beginning of each two-year session or at the governor's call.

Attorneys for the Legislature said that argument is absurd.

They warned the judge that invalidating the concept of extraordinary sessions could expose more than 3,000 pages of laws passed during such sessions to legal challenges. The Legislature's attorney, Misha Tseytlin, said during a hearing this week that such a scenario would be a "rolling disaster."

Niess wrote in his order that he can't uphold the lame-duck session and remain true to the state constitution. The judge denied Tseytlin's request for a stay and called the lawyer's warning that an injunction would create legal chaos an "alarmist domino-theory."

The lame-duck laws curtailed an array of Evers and Democratic Attorney Josh Kaul's powers. One of the most prominent revisions was prohibiting Evers from withdrawing the state from lawsuits without legislative approval. That language prevented him from delivering on a campaign promise to remove Wisconsin from a multistate lawsuit challenging the Affordable Care Act.

Less than two hours after Niess blocked the laws Evers ordered Kaul to pull out of the lawsuit. Kaul had filed motions to withdraw by early Thursday afternoon. The governor told reporters he needs time to "digest" the ruling before taking other action.

Among the lame-duck laws' other changes:

— Kaul must seek permission from lawmakers before settling any lawsuits. He also must deposit settlement awards in the state general fund rather than in state Department of Justice accounts.

— Lawmakers can intervene in lawsuits using their own attorneys rather than Kaul's DOJ attorneys. Democratic legislative leaders sent a letter to their Republican counterparts asking them to stop paying any attorneys hired under the lame-duck authority, including Tysetlyn. The Legislature is paying him $500 an hour to defend the laws.

— Municipalities can hold early in-person voting only during the two weeks before an election. In the past they could set their own hours.
Republicans also used the lame-duck session to confirm 82 of former Republican Gov. Scott Walker's appointments, ensuring Evers couldn't immediately replace them when he took office. Niess' order vacated all those appointments.

The lawsuit is one of four actions challenging the lame-duck laws.

Five labor unions have sued in Dane County arguing that the laws steal power from the executive branch and transfer it to legislators, violating the separation of powers doctrine.

The state Democratic Party has filed a federal lawsuit contending that the lame-duck statutes violate free speech and equal protection guarantees.

Liberal advocacy group One Wisconsin Now challenged the early voting restrictions as part of a larger federal lawsuit challenging Republican-authored voting laws. U.S. District Judge James Peterson struck down the early voting limits in mid-January, but that decision has been folded into a larger appeal and could be overturned.

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