MADISON – Most of Wisconsin’s lame-duck laws are in place after a string of court rulings but more litigation is likely.
The legal fight has created a confusing situation, with parts of the laws initially knocked down only to be reinstated later.
Here’s a scorecard explaining where the cases stand.
First, some background on what led to the lame-duck laws.
In November 2018, Democrat Tony Evers won the race for governor and Democrat Josh Kaul won the race for attorney general. Republicans held onto the state Legislature.
A month later — before Evers and Kaul were sworn in — GOP lawmakers in an overnight session approved laws to curb the powers of Evers and Kaul. Among the provisions were ones to limit Evers’ authority over economic development, force his administration to rewrite thousands of government documents and require Kaul to get permission from lawmakers before settling lawsuits.
Litigation followed, with the courts mostly siding with Republicans so far.
As of the summer of 2020, most lame-duck laws are in effect. At the moment, just one part of them has been sidelined. That measure has to do with how government documents are written.
At an earlier stage, more parts of the lame-duck laws were put on hold, including one aimed at preventing Kaul from getting the state out of lawsuits on his own. While that measure was blocked, Kaul had the state drop a challenge to the Affordable Care Act, or Obamacare.
He can’t do that in other cases now that that part of the lame-duck laws has been put back into effect.
Here’s a look at the lame-duck lawsuits:
League of Women Voters lawsuit
The League of Women Voters of Wisconsin, Black Leaders Organizing for Communities and Disability Rights Wisconsin sued in January 2019, arguing all actions taken during the lame-duck session were invalid. But the state Supreme Court upheld the laws six months later in a ruling, that sided with Republican lawmakers.
Lawmakers voted on the laws in what is known as an extraordinary session — a process lawmakers have used for four decades to take up legislation at times when they’re not scheduled to be on the floor of the Senate and Assembly.
The state constitution allows the Legislature to meet when called into special session by the governor and “as provided by law.” Extraordinary sessions aren’t spelled out in state law, so those bringing the lawsuit contended they’re not allowed.
Dane County Circuit Judge Richard Niess found the groups were likely to win the case and issued an injunction blocking the laws. He also revoked the confirmations made during the lame-duck session of 82 appointments made by former Gov. Scott Walker.
The Supreme Court took the case on appeal and in a 4-3 decision found that the Legislature did not violate the state constitution by calling the extraordinary session and that the circuit court ruling “invaded the province of the Legislature” by declaring the legislative session unconstitutional.
Units of the Service Employees International Union, other labor organizations and Democratic state Sen. Janet Bewley of Mason sued in February 2019 arguing key parts of the lame-duck laws violate the state constitution’s separation-of-powers doctrine, which delineates which powers belong to each branch of government.
Soon after, Dane County Circuit Judge Frank Remington blocked some of the lame-duck laws while he considered the case.
The Supreme Court took the case from him before he could issue a final decision and in July 2020 issued a ruling that upheld most of the lame-duck laws.
The justices upheld the parts of the lame-duck laws that require lawmakers to sign off on settling some lawsuits handled by the attorney general; give lawmakers the ability to more permanently block state rules; and allow legislators to prevent changes to how security is maintained in the state Capitol.
But the justices threw out requirements legislators wrote that would have put limits on how government documents are written and required the Evers administration to take public comments before publishing them.
In August 2019, Republican legislative leaders sued Kaul contending he wasn’t following the provisions of the lame-duck laws that require him to get permission from lawmakers to settle lawsuits.
The suit also argues Kaul isn’t giving up control of how to spend settlement money when he should.
Kaul said he’s following the lame-duck laws, but they apply in fewer instances than lawmakers believe.
Republicans filed the lawsuit directly with the state Supreme Court. The high court hasn’t said whether it will take the case.
One Wisconsin Institute lawsuit
In 2015, two liberal groups — One Wisconsin Institute and Citizen Action of Wisconsin Education Fund — sued over a slew of election laws in federal court and obtained a decision that struck down limits on early voting.
Legislators included similar limits on early voting in one of the lame-duck laws. One Wisconsin and Citizen Action in December asked U.S. District Judge James Peterson to enforce his earlier decision and bar the state from implementing the new limits on early voting.
Peterson in January 2019 did so, invalidating the provision that would have limited early voting to two weeks.
But more than a year later, after a lengthy delay, the 7th Circuit Court of Appeals in Chicago ruled on the underlying case over the state’s voting laws. In that decision, it put back in place the voting limits that were included in the lame-duck laws
Democratic Party lawsuit
The state Democratic Party in February 2019 brought a lawsuit in federal court alleging the lame-duck laws violated the U.S. Constitution by retaliating against Democratic voters for their political beliefs. The party alleges the laws were designed to make it harder for it to recruit candidates and do its work.
Peterson in September 2019 threw out the case, ruling the Democratic Party didn’t have legal standing to bring the lawsuit because it hadn’t been harmed by the lame-duck laws. Challenges to the laws must be brought in state court, not federal court, he wrote in his decision.
The Democratic Party has appealed.
Molly Beck of the Milwaukee Journal Sentinel contributed to this report.