Molly Beck and Patrick Marley

Milwaukee Journal Sentinel

MADISON - A Dane County judge on Thursday blocked a series of laws that limited the powers of Democratic Gov. Tony Evers and Democratic Attorney General Josh Kaul.

Within hours, Evers and Kaul used the decision to try to get Wisconsin out of a multistate lawsuit challenging the Affordable Care Act that their Republican predecessors joined. Until the judge's ruling, Republican lawmakers were able to prevent them from doing that.

The laws were introduced by GOP lawmakers and signed by Gov. Scott Walker after Evers and Kaul won their elections but before they took office. The scope of the laws and the overnight floor session used to pass them drew national attention.

Dane County Circuit Judge Richard Niess on Thursday issued a temporary injunction to block the lame-duck laws after he found the Republican-controlled Legislature did not lawfully meet to pass them.

Evers called the ruling "a victory" for the Wisconsin Constitution and immediately directed Kaul to withdraw Wisconsin from the Affordable Care Act lawsuit and Kaul quickly filed a motion to do that.

Withdrawing the state from the lawsuit was a centerpiece to the pair's campaigns but they were blocked from doing so once they took office by the laws Republicans passed in December.

"The Legislature overplayed its hand by using an unlawful process to accumulate more power for itself and override the will of the people, despite the outcome of last November's election," Evers said in a statement. "I look forward to putting this disappointing chapter behind us so we can move forward together to put the needs of the people of Wisconsin first."

GOP vows appeal

Minutes after the judge issued his ruling, Republican legislative leaders who wrote the laws promised to appeal it.

"Today’s ruling only creates chaos and will surely raise questions about items passed during previous extraordinary sessions, including stronger laws against child sexual predators and drunk drivers," Senate Majority Leader Scott Fitzgerald of Juneau and Assembly Speaker Robin Vos of Rochester said in a statement.

The Republicans' appeal will likely be filed swiftly. Even so, Evers said he wouldn't move with haste to exercise the powers returned to his office by the judge's ruling.

"We will be moving forward not with speed but with thoughtfulness and make those decisions going forward," Evers told reporters at the state Capitol. "We don’t view this as a window of opportunity. We think we’re right on the issues and the judge made it very clear that the Constitution counts for something in this state."

Judge: Illegal floor session

The League of Women Voters, Disability Rights Wisconsin, Black Leaders Organizing for Communities and three Wisconsin voters in January in their lawsuit alleged Republicans had convened an illegal legislative session and the laws should be voided.

"The League stands up for democracy whenever it is attacked, and today’s victory is a huge win for fairness in our system of government," Chris Carson, president of the League of Women Voters of the United States, said in a statement.

Niess in his ruling sided with those groups and barred anyone from enforcing the laws that were passed during a 24-hour floor period in December by Republican lawmakers over the objection of Democratic lawmakers, Evers and Kaul.

"The bottom line in this case is that the Legislature did not lawfully meet during its December 2018 'Extraordinary Session,' " therefore violating the state Constitution, Niess wrote.

Ruling vacates GOP appointments

In addition to striking down the lame-duck laws, Niess’s decision vacated 82 appointments by Walker that senators confirmed during the same session.

The ruling gives Evers a chance to fill appointments, including ones on the University of Wisconsin System’s Board of Regents and Public Service Commission, and to appoint a new head at the Wisconsin Economic Development Corp.

Evers said he wouldn't be scrambling to make the appointments to avoid a stay in Thursday's ruling by a state appeals court — even if the appeal is made to a panel of judges in Waukesha who have traditionally been more friendly to Republicans than those in Dane County.

"I don't believe a Waukesha judge is going to say the Constitution doesn't mean anything," he said.

After the ruling, the Public Service Commission canceled a Friday meeting on cases involving solar farms. With Walker appointee Ellen Nowak off the commission for now, the commission consists of two people — Walker appointee Mike Huebsch and Evers appointee Rebecca Cameron Valcq.

Other legal actions

The lawsuit is one of four legal actions that have been filed over the lame-duck laws. In one, a federal judge in January struck down a part of the lame-duck laws that would have curbed early voting.

The other two cases are ongoing, with a hearing scheduled for Monday in one of them. That lawsuit, brought by unions, alleges the lame-duck laws violate the state Constitution because they give too many powers that should belong to the executive branch to the Legislature.

The lawsuit that generated Thursday's ruling centered on extraordinary sessions, which are floor periods legislators have used for nearly four decades to call themselves into session at a time when they're not scheduled to be in the Capitol.

Misha Tseytlin, a lawyer for the Republican lawmakers, argued in a court hearing this week that striking down the lame-duck laws would pave the way for hundreds of laws passed in a similar method to fall. That would result in chaos and allow thousands of prisoners to contend their convictions were invalid, he said.

Niess downplayed such claims, calling them “alarmist.”

His ruling did not strike down any laws beyond those passed in December, but others could bring new lawsuits challenging older laws approved in extraordinary sessions.

Those bringing the lawsuit contended the state Constitution authorizes the Legislature to meet in just two circumstances: "At such time as provided by law” and when “convened by the governor in a special session.”

Niess agreed.

"The Legislature’s argument, if accepted, would swallow much of (the Constitution) whole," he wrote.

By allowing the Legislature to "create its own authority" and meet in previously unscheduled legislative sessions with little or no notice because a group of legislators wants to means much of the section of the Constitution governing the Legislature "essentially disappears," he wrote.

Niess wrote that the Constitution was aimed in part at limiting how often the Legislature met to prevent "legislative malfeasance, even corruption."

“That the people’s liberty is imperiled by a Legislature that can meet at will any time, with little warning and even less of a published agenda, was a genuine threat on the minds of the people in 1848,” he wrote.

But Fitzgerald and Vos noted the Legislature has convened extraordinary sessions since 1980 and that they have been "widely supported by members of both parties."

"The most recent extraordinary session was held for Governor Evers’ budget address," they said in their statement.

Rick Esenberg, president and chief counsel for the conservative Wisconsin Institute for Law & Liberty, said the decision "appears to be an extraordinary intrusion by the courts into the legislative process through a cramped reading of the Constitution,"

"It is inconsistent with long-standing practice and could throw the validity of numerous laws into question. It is unlikely to survive on appeal," Esenberg said.

Democrats celebrate

Meanwhile, Democrats celebrated the ruling,

"This is a win for Wisconsin voters," Senate Democratic Leader Jennifer Shilling of La Crosse said in a statement. "The lame duck session was a bait and switch to rush through more partisan bills, rig elections and consolidate more power in the hands of Republican politicians."

Following the ruling, Shilling and Assembly Democratic Leader Gordon Hintz of Oshkosh sent letters to Fitzgerald and Vos asking them to stop paying private attorneys to represent them now that the laws that allowed them to hire the outside attorneys had been blocked.

Fitzgerald and Vos didn't respond to that request but filed notices that they planned to get authority Friday to hire private attorneys at taxpayer expense. An aide to Vos said that was as part of an attempt to intervene in a lawsuit over Wisconsin's abortion laws.

A committee of lawmakers last week already approved hiring attorneys to get involved in that case, but now two more committees plan to take the same action.

In the lame-duck cases, lawmakers' attorneys have been charging the state $500 an hour. Lawyers for Evers and others have been billing the state $275 an hour.