Molly Beck

Milwaukee Journal Sentinel

MADISON - Liberal-leaning groups and advocates for people with disabilities are asking a Dane County judge to invalidate new laws that have shifted key powers from Democratic Gov. Tony Evers and Attorney General Josh Kaul to the Republican-controlled Legislature.

The League of Women Voters, Disability Rights Wisconsin, Black Leaders Organizing for Communities and three Wisconsin voters on Thursday filed a lawsuit in Dane County court alleging the new laws should be voided because lawmakers illegally convened a legislative session to take up the Republican-authored bills.

The lawsuit challenges the constitutionality of what are known as extraordinary legislative sessions — floor periods the Legislature has convened for more than three decades and what lawmakers used to pass the new laws.

The lawsuit is the second challenge to the new laws that limit Evers' authority over state rules, require him to get permission from lawmakers to adjust public benefits programs and diminish his say over the Wisconsin Economic Development Corp.

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The state Legislature also now has more oversight over Kaul's actions under the new laws that provide lawmakers with the power to intervene with private attorneys in lawsuits challenging laws they've passed.

Assembly Speaker Robin Vos of Rochester said he didn't trust Kaul and lawmakers would likely hire their own attorneys to defend the laws.

"I am certain we will probably have to intervene, unfortunately," the Republican speaker said.

Vos called the lawsuit a waste of taxpayer money but one the state would ultimately win.

"There is absolutely, positively no doubt that what the Legislature did is constitutional because we have the right to convene ourselves in extraordinary session," he said. "When we pass a resolution setting our session calendar, it is done by the Legislature. It’s not signed by the governor. So the dates that are set are actually determined by the Legislature and have been since statehood."

Senate Majority Leader Scott Fitzgerald of Juneau said the lawsuit amounted to "liberals yet again throwing a tantrum and running to the Dane County Circuit Court when they lose a legislative fight."

In a separate move, Democratic Rep. Jimmy Anderson also is asking the Dane County district attorney to sue Assembly Republican leaders over not accommodating his disabilities during the overnight legislative session, which resulted in Anderson missing votes on the bills.

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Anderson was paralyzed from the chest down during a car crash in 2010 and as a result needs to be out of his wheelchair for a set amount of time each day. Anderson left the Capitol after legislative leaders told him they didn't know when the vote would take place.

An aide to Anderson said the Legislature violated the state's open meetings law, which says government bodies can't exclude duly elected members from meetings.

The state's open meetings law applies to the state Legislature generally, but a 2011 state Supreme Court decision made it clear that lawmakers could sidestep its rules. The law also does not apply in situations where it "conflicts with a rule of the Legislature, senate, or assembly," according to state law.

Two groups in December asked a federal judge to strike down limits on early voting included in the legislation, but Thursday's lawsuit is the first challenge to the entire package of legislation.

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It's unclear whether Evers or Kaul will personally challenge the new laws. Last week, Evers said he believed he would be sued not by detractors trying to force him to follow the laws passed in a lame-duck session but by challenges like Thursday's lawsuit — brought by supporters who want to get him out from under the laws.

The lawsuit is filed against Evers and Wisconsin Elections Commission — parties the plaintiffs say are charged with carrying out the laws.

Melissa Baldauff, spokeswoman for Evers, said the legislation passed during the lame-duck legislative session "was a hasty and cynical attempt by Republicans to override the will of the people."

She said Evers will be consulting with legal counsel to determine an appropriate course of action.

A spokesman for the Wisconsin Elections Commission did not have an immediate reaction to the lawsuit.

Vos: Bills compel bipartisan cooperation

Vos told reporters he believed the lame-duck legislation limiting Evers' and Kaul's powers was a goodwill effort because it provided a guarantee the two parties would work together.

"The number one thing I have heard the governor talk about, Gov. Evers, since the election days is, 'we want to work together, we want to find common ground, we want to be bipartisan.' Well, those bills require bipartisan cooperation," Vos said.

Brett Healy, president of the conservative John K. MacIver Institute for Public Policy and former chief of staff to former GOP Assembly Speaker Scott Jensen, said state courts have historically upheld the Legislature's ability to set its own rules.

"Everything was properly noticed, everyone in the state knew about the extraordinary session and a vote occurred," Healy said. "It seems to me that this was done properly and the idea that somehow it is unconstitutional is a real stretch."

The lawsuit alleges the state constitution did not allow lawmakers to convene a legislative session to take up the bills — known as an extraordinary session.

Therefore, the lawsuit says, all legislative actions taken during the December legislative session "are void."

"The Legislature had no legal authority to convene the December 2018 Extraordinary Session," the lawsuit argues. "The Wisconsin Constitution does not provide for the Legislature, let alone a small subset of each chamber acting through committees, to convene itself in an 'extraordinary session,' and neither does any statute."

The groups allege the Legislature's extraordinary session was unconstitutional because it was convened according to a joint rule, which is not a state law, and does not have the force of law.

The lawsuit says 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.”

"Because the December 2018 Extraordinary Session fits in neither category, it occurred outside of the Legislature’s constitutional authority," the lawsuit alleges. "It follows that all legislative business conducted as part of the December 2018 Extraordinary Session is ultra vires and, therefore, void."

Lawsuit faces 'uphill battle'

Rick Esenberg, president and chief counsel at the conservative Wisconsin Institute for Law & Liberty, said the plaintiffs "have an uphill battle because courts are unlikely to aggressively interpret the law and inject themselves into the legislative process."

"Following the constitution is imperative. But the term ‘provided by law’ is not necessarily limited to statute," he said. "Here, where the legislature has had a joint rule that has supported the call of extraordinary sessions for a number of years, it seems unlikely that the courts would interfere with the legislative process by saying a long-standing joint rule is not tantamount to something being provided by law.”

The groups say the legislation harms their members in a number of ways, including to "Wisconsin voters who would otherwise have broader opportunities to participate in elections" and impairing the groups' efforts to expand voter participation.

Efforts to "informally and effectively" work with the Department of Health Services are "frustrated" by the new law that requires the Legislature's approval to make changes to Medicaid programs, the groups also allege.

Erin Grunze, executive director of the League of Women Voters of Wisconsin, said the lame-duck session "deprived Wisconsinites of a process that reflects transparency and thoughtful debate."

She said lawmakers passed bills "that will have wide-reaching negative impacts on Wisconsin voters and elections — starting with the Spring primary next month."

Healy said the lawsuit is "a partisan attempt to stop Republicans from exercising their power," and noted Democrats called an extraordinary session fewer than 10 years ago when they controlled state government.

"So this idea that somehow it’s never happened before or this is just a Republican attempt is false," he said.

According to the Legislative Reference Bureau, lawmakers have convened extraordinary sessions going back to 1980. The first session dealt with legislation related to crime victims, energy conservation and firearms.

LRB researchers wrote in a 2014 report that the state Legislature voted to create a mechanism to call for extraordinary legislative sessions in 1977. The sessions may be called during a committee work period or after the expiration of the last scheduled floor period and can be used to pass new legislation, the researchers wrote. The report does not mention ambiguity in sessions' legality.

Jeffrey Mandell, an attorney representing the groups, said he doesn't expect any ruling a judge hands down to affect the status of legislation passed during previous extraordinary sessions.

"Fidelity to the Constitution is a fundamental principle of law and the people of Wisconsin should be able to expect that their leaders carefully follow the Constitution," he said Wednesday. "As a legal matter, it is not clear or obvious that success in our lawsuit would necessarily change or imperil laws that were passed through prior extraordinary sessions."

Patrick Marley of the Journal Sentinel staff and the Associated Press contributed to this report.