Here & Now

What’s Next for the Lame Duck Lawsuits?

Frederica Freyberg:
For more on the lame duck decision and the appeal of it, we turn to WPRs Capitol Bureau Chief, Shawn Johnson. Shawn, thanks for being here.

Shawn Johnson:
Hey Fred.

Frederica Freyberg:
So it wouldn’t be Wisconsin without some dueling court cases flying around late in the week.

Shawn Johnson:
Yeah. Kind of reminiscent when Governor Walker came into the office in 2011. Made a lot of changes. Went through court. It’s kind of fitting that this is stuff that happened at the end of his administration that’s now working its way through court again.

Frederica Freyberg:
Meanwhile, late this afternoon Governor Tony Evers took the opportunity to overturn some appointments that Republicans made during the lame duck session, which was then struck down by Judge Niess. That’s pretty big news.

Shawn Johnson:
Yeah. If you’re wondering if this ruling by Judge Niess on Thursday was consequential, this would be an argument that the answer is yes. Judge Niess essentially ruled that everything that happened in that December lame duck session was unlawful because the legislature can’t meet in extraordinary session. The state Constitution doesn’t explicitly allow it. So anything that happened was unlawful, that included the 82 appointments. There was some question about what that meant. We now know what Governor Evers thinks it meant. It means that those appointments are no longer valid, so these are appointments that include appointments to the Public Service Commission, that’s a term that runs into 2023, an appointment to the Board of Regents.

Frederica Freyberg:
Two of them, right?

Shawn Johnson:
One of those runs until 2023 again. Those are consequential appointments that Governor Evers is now saying he has withdrawn.

Frederica Freyberg:
Meanwhile, the defendants in this case want to take it to the Third District Court of Appeals seeking an emergency stay of Judge Niess’ ruling striking down that lame duck legislation. What do we know about that Third District?

Shawn Johnson:
We don’t know much about why they decided to go to the Third District other than it’s not Madisons district. So the state is split up into different districts for Court of Appeals. Madison, Dane County is in District Four. This case was brought in Dane County, but Republicans decided they wanted to go to a district that covers the northern half of Wisconsin. They say that they can do that in lawsuits against the state. The plaintiffs in this case and the governor say not so fast. It’s not that kind of lawsuit. You have to bring the appeal in Dane County if you want to bring this case.

Frederica Freyberg:
Also, Governor Evers is saying that he wants to be heard on this.

Shawn Johnson:
Yeah. Essentially that he’s telling the court, slow down a second, because Republican lawmakers through their attorney are saying there’s chaos out there. We need you, the Court of Appeals to step in and undo everything that Judge Niess did, return things back to the way they were Wednesday and then we can talk about this. Governor Evers is saying not so fast. Before you talk about moving this to the Third District Court of Appeals, Im in this case, hear me out.

Frederica Freyberg:
And we understand now that the Third District Court of Appeals is giving all parties until 4:00 p.m. on Monday. So I guess that said, we don’t expect them to rule on this emergency stay, you know, on Friday or Saturday or Sunday. So I guess we’ll just stay tuned for that. But back to Judge Niess’ original ruling. He said this about it. He said, “The bottom line in this case is that the Legislature did not lawfully meet during its December 2018 extraordinary session, which therefore proceeded in violation of the Wisconsin Constitution.” And yet there have been extraordinary sessions going back where they passed legislation. What about that?

Shawn Johnson:
There have. Back to 1980s, when the Wisconsin Legislature had its first extraordinary session. There have been about two dozen in Wisconsin history. This has not been a completely unusual affair for it to happen. An extraordinary session has been when legislative leaders call the legislature back into session when they’re not normally scheduled to be there. Judge Niess is saying the Constitution doesn’t say anything about that. The Constitution authorizes the governor to call special sessions and governors have done that back to 1861. Doesn’t say anything about extraordinary session. So it doesn’t matter that it’s been done a lot. They’re not allowed.

Frederica Freyberg:
Republicans say that this ruling creates chaos because Judge Niess’ ruling creates this chaos that “raises questions about items passed in past extraordinary sessions.” Judge Niess said, “Don’t try to scare me.”

Shawn Johnson:
Yeah. So they’re saying that anything that was passed in extraordinary session, if you adopt this argument, is no longer valid and they’re pointing out long pages of laws actually that have been tweaked during extraordinary sessions, including laws governing prison sentences for sex offenders. Judge Niess said, look, my ruling is strictly to December of 2018 and that extraordinary session, nothing more.

Frederica Freyberg:
All right. We will be watching this as usual as the days tick on. Shawn, thanks very much.

Shawn Johnson:
Thanks, Fred.