Patrick Marley

Milwaukee Journal Sentinel

MADISON – A Dane County judge threw out parts of lame-duck laws Tuesday, dealing a second blow in less than a week to measures Republicans passed in December to curb the powers of two of Wisconsin's top Democrats.

The ruling strengthens Democrats' position, at least for now, because Republicans would need to get two orders from appeals courts to put the laws back in place.

Already one appeal has been filed and an appeal in the latest case is in the works.

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At issue are measures GOP lawmakers and Gov. Scott Walker approved after Walker and Republican Attorney General Brad Schimel lost their elections but before they stepped down.

The laws shifted power away from Gov. Tony Evers and Attorney General Josh Kaul and to the Republican-run Legislature.

In a 49-page ruling, Judge Frank Remington issued a temporary injunction halting some of the provisions of those laws because he found the unions that brought the lawsuit were likely to prove they violated the state constitution's separation-of-powers doctrine.

In short, he found the unions were likely to show the legislative branch intruded on authority that belongs to the executive branch.

"Wisconsin’s constitution is like a keel on a great ship," Remington wrote. "In December 2018 the Legislature and then-Governor Scott Walker upended the balance that this state has had for most all of its 171 years. The time has come to right this ship-of-state so Wisconsin can resume smooth sailing ahead."

The decision was a rebuke of Walker, who appointed Remington to the Dane County bench in 2011.

There was no immediate effect to Remington's ruling because he issued it five days after another Dane County judge, Richard Niess, struck down the lame-duck laws in their entirety. Niess concluded the lawmakers had brought themselves into session at a time that wasn't allowed, so he voided all their actions.

Remington's decision is not as sweeping. He blocked some parts of the laws but not others.

Remington tossed aside provisions that required lawmakers to sign off on settling lawsuits handled by the attorney general; allowed legislators to stipulate how thousands of government documents are written; and gave legislators the ability to permanently block state rules written by the Evers administration.

RELATED:Gov. Tony Evers and AG Josh Kaul refuse to defend lame-duck laws passed by GOP before they took office

Lawmakers have the power to alter the duties of the attorney general, but they can't take over some of those duties themselves, he wrote. They could curb the attorney general's oversight of state litigation, but they would need to give it to the governor because the duties are part of the executive branch, he wrote.

"The Legislature has taken what rightfully belongs in the executive branch and unduly burdened or substantially interfered with the role and power vested in the executive branch," Remington wrote.

But Remington left in place provisions that give lawmakers the ability to intervene in lawsuits challenging state laws and a chance to sign off on changes to public benefits programs.

He noted he could revisit the issue and strike down those provisions as the lawsuit continues.

For instance, he noted he has "more questions than answers" regarding the provisions that allow lawmakers to intervene in lawsuits. The measure could create confusion if multiple legislative committees intervene in the same lawsuit, particularly if they're controlled by different political parties, he wrote.

The Legislature's top two Republicans, Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, said they were pleased the judge sided with them in part but stressed they believed all aspects of the lame-duck laws are constitutional.

"All of the Legislature’s actions are consistent with the separation of powers that the Wisconsin Supreme Court has upheld for decades," they said in a statement. "We will appeal this decision."

Evers praised the ruling.

"It is now abundantly clear that the lame-duck session was nothing more than an illegal power grab intended to override the will of the people," he said in a statement. "It is time to move beyond this chapter and work together to build a Wisconsin that puts the people first."

Last week's ruling by Niess is already on appeal, and an appeals court in Wausau could issue a decision any day on whether to reinstate the lame-duck laws while the appeal continues.

But such a ruling would not put all the lame-duck laws back in effect because of Remington's decision. A separate appeal would be needed to revive those parts of the law.

More confusion could be ahead.

The state Democratic Party has also challenged the lame-duck laws, alleging in federal court that the measures interfered with its First Amendment right of free association and discriminated against Democratic voters for their political beliefs.

In a fourth legal action, a federal judge struck down limits on early voting that were included in the lame-duck laws. Republicans would need a federal appeals court to undo that order.

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