Patrick Marley

Milwaukee Journal Sentinel

MADISON - Gov. Tony Evers withdrew 82 appointments by his predecessor Friday as Republican lawmakers raced to an appeals court to try to reinstate lame-duck laws meant to curb the power of the Democratic governor.

The moves came a day after Dane County Circuit Judge Richard Niess struck down the lame-duck laws and invalidated the confirmation of the appointments made by former Republican Gov. Scott Walker. He said he was voiding all the actions from a December overnight meeting because lawmakers convened the session in a way that violated provisions of the state constitution.

Friday's appeal sparked a new legal fight, with the two sides disagreeing over whether the case should go to an appeals court in Wausau or one in Madison.

With Niess finding the Walker appointments improperly confirmed, Evers pulled the appointments. That prevents the Senate from re-confirming the Walker appointees.

"These seats are now considered vacant, but we are committed to working as quickly as possible to fill them and minimize the disruption to the important work done by these boards, committees and councils," Evers spokeswoman Melissa Baldauff said in a statement.

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Senate Majority Leader Scott Fitzgerald of Juneau called the pulling of the appointments "irresponsible." He noted Evers did it minutes after Appeals Judge Lisa Stark gave Evers and others until 4 p.m. Monday to weigh in on the appeal — a signal she would not rule on the lower-court decision before then.

“We absolutely believe that these nominees were nominated and confirmed legally and will continue to serve in those positions once the constitutionality of the extraordinary (legislative) session is upheld," Fitzgerald said in his statement.

The lame-duck laws were passed after Evers and Democratic Attorney General Josh Kaul were elected but before they were seated. The laws limited Evers' control of the Wisconsin Economic Development Corp., required Evers to get permission from lawmakers to make changes to public benefits programs and forced Kaul to get approval from lawmakers to settle lawsuits.

During the lame-duck session, senators confirmed the 82 Walker appointees, including members of the Dentistry Examining Board, State Fair Park Board and Snowmobile Recreational Council.

A few of the positions were on high-profile entities, including the Board of Regents that oversees the University of Wisconsin System and the Public Service Commission that regulates utilities.

While Evers' action Friday removed the appointees, he did not name anyone to replace them. For now, he has the ability to fill those vacancies, but a decision by the appeals court could change that.

Friday began with an attorney for the legislators asked the District 3 Court of Appeals in Wausau to immediately stay Niess' order and put the lame-duck laws in effect while they pursue their appeal.

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Niess's ruling invalidated only the lame-duck laws, but Republican lawmakers contended his decision would pave the way for courts to knock out hundreds of other laws passed in a similar fashion since 1980.

Niess's injunction will "cause confusion about the lawful status of four decades of law adopted using the same procedure, from the two-strike laws for child sex predators, to the right-to-work law, to laws protecting against prenatal substance abuse, to the Milwaukee Bucks arena, to more than 3,000 pages of other laws," wrote attorney Misha Tseytlin.

Also Friday, the attorney general sought to get involved in the case — two months after saying he was staying out of it because of a conflict of interest. The appeals court quickly granted his request to participate in the case.

Kaul in January told Evers he would not represent him in the case because his Department of Justice "has a direct and substantial interest in this case that is in conflict with the defense of this case."

But on Friday, Assistant Attorney General Colin Roth asked the Court of Appeals to let him weigh in on the case, arguing "the attorney general is entitled to be heard when a statute is alleged to be unconstitutional.”

Kaul spokeswoman Gillian Drummond said the Department of Justice had a conflict in representing others in the case but not in representing itself. That allows Kaul to get involved in the appeal, she said.

But Tseytlin said the move by Kaul contradicted his earlier statement and was part of a "troubling pattern."

"He has argued in court and to the public that he will defend state law, and that is one of the reasons he said these laws were not needed," Tseytlin said by email. "Yet, now in three cases, he continues to either not defend state law or even actively attack state laws."

Stark, the appeals court judge, told Kaul, Evers and those who brought the lawsuit they could file briefs on the case by Monday.

The first issue that must be addressed is whether the case is in the right court, Evers and others said.

State law dictates where appeals go. In some types of lawsuits, those who appeal can choose their venue, while in others they must go to the appeals court in the area where the original lawsuit was heard. The two sides disagree on where the case should be heard and judges will have to settle that dispute.

GOP lawmakers want to keep the case away from the appeals court based in Madison — the state's liberal epicenter — while Evers and those who filed the lawsuit want to get it there.

The lawsuit is one of four legal actions challenging the lame-duck lawsuits. In one of the cases, a federal judge in January struck down limits on early voting that were included in the lame-duck laws.

The other lawsuits are ongoing, with a Monday hearing scheduled in one of them.

The lawsuit that Niess ruled on was brought by the League of Women Voters of Wisconsin, Black Leaders Organizing for Communities and Disability Rights Wisconsin.

At issue is the mechanism legislators used to take their lame-duck votes. They called what is known as an extraordinary session, where lawmakers bring themselves to the Capitol when they're not scheduled to be on the floor of the Senate and Assembly.

The practice has been used since 1980 but is not spelled out in state law. The League of Women Voters and the others argued such sessions are invalid because the state constitution says the Legislature can meet only when "provided by law” or when the governor calls a special session.

Lawmakers contended they had set a schedule that allowed them to come into session any time with the approval of legislative leaders — an argument Niess rejected.

One lame-duck measure that was lifted had prevented Evers and Kaul from getting Wisconsin out of a federal lawsuit over the Affordable Care Act, or Obamacare.

Shortly after Niess issued his ruling, Kaul filed motions to drop the state from the Obamacare lawsuit. Federal judges haven't decided yet whether Wisconsin will remain part of the case.

Among the lame-duck laws that were blocked were ones that allowed legislators to automatically intervene in court cases.

Nonpartisan attorneys for the Legislature wrote a memo Thursday that concluded legislators retained other powers that allowed them to hire private attorneys at taxpayer expense to try to get them involved in litigation.

On Friday, a legislative committee signed off on giving leaders additional authority to hire attorneys to ensure they can continue to get involved in litigation despite Niess's ruling.

“Judge Niess’ ruling yesterday has no impact on our ability to retain outside counsel," Assembly Speaker Robin Vos of Rochester wrote in a letter to Assembly Democratic Leader Gordon Hintz of Oshkosh.

Hintz had asked Vos to cut off payments to the legislators' attorneys because of the ruling. Vos refused.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.