Wisconsin Supreme Court upholds most lame-duck laws, throws out provisions on government documents

MADISON - The state Supreme Court upheld many of the lame-duck laws that limited the power of the governor and attorney general Thursday, but the justices tossed out provisions that dictated how government documents had to be written.  

The ruling was a victory in many ways for Republicans who control the Legislature. It was a setback for Democratic Attorney General Josh Kaul and provided mixed results for Democratic Gov. Tony Evers.   

The sprawling set of decisions included some unusual alliances. The justices unanimously agreed that some parts of the lame-duck laws are constitutional. They split 5-2 along ideological lines over other parts, and two conservatives sided with the court's two liberals on the rules for writing government documents. 

The Supreme Court returned the lawsuit to a Dane County judge and left open the possibility of years of litigation over the lame-duck laws with additional lawsuits. 

The high court is not done deciding how much power Evers has. On Friday, it plans to release a ruling that will determine how much the governor can use his partial veto authority to rewrite legislation.

Thursday's decision is one of the last to be issued with conservative Justice Daniel Kelly on the court. Kelly lost his April election and will be replaced in August by liberal Dane County Circuit Judge Jill Karofsky. That will narrow conservative control of the court from 5-2 to 4-3.

The court handed down Thursday's ruling in two main parts, with Kelly writing the portion that was favorable to Evers. His opinion threw out rules lawmakers put in place that had required the Evers administration to get public comment before publishing "guidance documents" — a broad set of documents and websites that explain and interpret state laws and rules.

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With those rules, lawmakers had attempted to "demote the executive branch to a wholly-owned subsidiary of the Legislature" and that's something they can't do, Kelly wrote. 

"Capturing the executive's ability to communicate his knowledge, intentions, and understanding of the laws he is to execute makes him a drone without the energy or independent wherewithal to act as a co-equal member of government," Kelly wrote.

Evers' attorney, Lester Pines, called Kelly's opinion the most important part of the decision and "an overwhelming victory for Gov. Evers."

"It was an absolute repudiation of what the Legislature did," he said.

In a statement reacting to the decision, Evers noted his opponents had tried to block his authority in numerous ways, including by approving the lame-duck laws, challenging his veto powers and striking down the stay-at-home order his administration put in place to try to fight the coronavirus pandemic.  

"Clearly Republicans are going to continue working against me every chance they get, regardless of the consequences," Evers said in his statement. "But I'm not going to let that stop me from continuing to do what I promised I would when I ran for this office — I am going to keep putting people first and doing what's best for the people of our state."

For his part, Kaul said the Supreme Court had "punted" on many of the issues related to the attorney general because the justices left open the possibility of future challenges. 

"In all likelihood there's going to be more litigation over this and there's going to be more wasted time and effort as a result of the lame-duck laws," he said.

He said he was confident the lame-duck laws regarding court settlements would be thrown out eventually.

State Senate Majority Leader Scott Fitzgerald, a Republican from Juneau, hailed the decision, saying the lame-duck laws make Wisconsin's government more accountable.

"A rogue attorney general can no longer unilaterally settle away laws already on the books and unelected bureaucrats can’t expand their powers beyond what the people have given them through their representatives," Fitzgerald said in a statement.

GOP Assembly Speaker Robin Vos of Rochester said in a statement that the ruling showed the legislative and executive branches are on equal footing.

“The governor and attorney general can continue to try to work around the Legislature and violate laws when doing so, or they can begin to understand that there are checks and balances set forth in our representative democracy, just as the state high court reminded them today," his statement said.

Laws cut into powers of Evers and Kaul

Republican lawmakers in 2018 passed the laws in question after Evers and Kaul were elected but before they were sworn in.

Labor unions sued, arguing the measures violate the state constitution's separation-of-powers doctrine, which spells out what authority each branch of government has. 

Dane County Judge Frank Remington issued an initial ruling in favor of the unions in 2019, but three months later the Supreme Court took over the case and reinstated most of the lame-duck laws for the time being.

In Thursday's ruling, the high court found many of the lame-duck laws were valid and returned the case to the lower court so parts of the lawsuit can continue.

The lame-duck laws require a committee of legislators, rather than the attorney general, to sign off on some court settlements and they allow lawmakers to easily intervene in lawsuits involving the state.

The Supreme Court upheld those parts of the laws 5-2. In the majority of that part of the decision were Kelly and the court's other conservatives, Chief Justice Patience Roggensack and Justices Rebecca Bradley, Brian Hagedorn and Annette Ziegler. In dissent were the court's liberals, Justices Ann Walsh Bradley and Rebecca Dallet. 

Writing for the majority, Hagedorn called that part of the decision "limited" and concluded other challenges to how litigation is handled by the state could be brought.

The lame-duck laws also give lawmakers the ability to more easily block rules written by the Evers administration. They say courts can't defer to state agencies when they interpret state laws. And they give lawmakers the ability to block the administration from changing security policies in the state Capitol.

The justices unanimously agreed all those provisions are constitutional, though they said more specific challenges could be made to those parts of the laws in the future. 

The lame-duck laws also include rules instructing the Evers administration to rewrite thousands of government documents and websites. Those rules required the administration to provide citations to statutes or case law any time it offered an opinion on laws and regulations — a requirement that Evers said could cripple the functioning of state government.

The justices on a 4-3 vote struck down the requirements for government documents. The lineup for that part of the decision was highly unusual, with Kelly joined by Dallet, Rebecca Bradley and Ann Walsh Bradley. (The Bradleys are not related.)

The lame-duck laws have been challenged in other cases and courts have largely sided with Republicans in those cases. Last year the Supreme Court found the laws were enacted properly and a federal judge threw out a lawsuit alleging the laws unfairly discriminated against Democratic voters. 

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