Wisconsin State Capitol

Author: Will Kenneally

Dane County Judge Richard Niess ruled Thursday that the laws passed in December's lame duck session are unconstitutional, in a decision that returns power to the office of governor and attorney general.

Part of the legislation required the governor and attorney general to receive legislative approval before removing the state from any lawsuits. This included a Texas lawsuit challenging the Affordable Care Act that Wisconsin joined under a Republican attorney general — a position that the current Democratic Attorney General Josh Kaul was expected to change.

Kaul filed a motion the same day to withdraw Wisconsin from the healthcare lawsuit.

“Today, we are seeking to end the State of Wisconsin's involvement in the lawsuit challenging the constitutionality of the Affordable Care Act,” Kaul said in a statement.

Republicans challenged the ruling Friday however, filing for an emergency stay in a Wausau-based appellate court. Republican lawyers alleged that by blocking the December laws from taking effect the state faces “a form of irreparable injury.”

Adding to the impact of the decision, Thursday's ruling put into question the status of more than 80 Walker appointees who were approved during the session. As a result, the state's Public Service Commission, members of which were confirmed in December, canceled a Friday meeting.

“[Republican lawyers' argument] grossly misstates the issues and District Court ruling, as well as the consequences of that ruling,” lawyers for Democratic Gov. Tony Evers responded. They said they would challenge the stay and asked the court to hear the appeal in a Madison appellate court.

The suit:

The decision stems from a lawsuit brought by the League of Women Voters and other groups, which alleges that the extraordinary session convened by the legislature was unconstitutional and the laws are void. The judge agreed in his ruling:

“The [state constitution and laws] constrain the Legislature from meeting except in two circumstances: (1) ‘at such times as shall be provided by law,' i.e., by statute, (2) ‘unless convened by the governor in special session.'”

Extraordinary sessions are similar to special sessions but convened by the legislature itself rather than the governor. Niess ruled that because the December session's date was not agreed to at the start of the 2017-2018 legislative session, it falls outside the scope of “such times as shall be provided by law.”

Republicans decried the ruling, calling it the work of an activist liberal judge.

“Disappointed, but not surprised that yet another Dane County judge has issued a partisan political ruling that will inevitably be overturned by a higher court,” Assembly Majority Leader Jim Steineke wrote on Twitter.

Republican legislative leaders said they will appeal the ruling, saying it could invalidate laws passed under previous extraordinary sessions.

Evers called the decision a victory and said the Republican-controlled state legislature used illegal means to obtain power.

“I look forward to putting this disappointing chapter behind us so we can move forward together to put the needs of the people of Wisconsin first,” Evers said in a statement.

You can find an update to this story here: https://wsum.org/2019/03/22/update-evers-withdraws-apointees-after-judge-strikes-down-lame-duck-session/.