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Gloves come off in fight of Wisconsin lame-duck laws

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By Joe Kelly, Courthouse News

MADISON, Wis. (CN) – A Dane County, Wisconsin, judge heard oral arguments Monday in one of a handful of lawsuits challenging the three lame-duck laws passed during an extraordinary floor session of the GOP-controlled Wisconsin Legislature this past December, officially beginning tests of the laws’ salt in court.

The suit at hand Monday, filed in January by the League of Women Voters of Wisconsin and other advocacy groups, claims the Legislature lacked the legal authority to call the December lame-duck floor session and focuses particular ire on its laws’ limitations on early voting, which were nixed by U.S. District Judge James Peterson about a week after the League’s lawsuit was filed. The lame-duck laws also restrained the powers of newly elected Governor Tony Evers and Attorney General Josh Kaul, both Democrats.

The plaintiffs seek a block of the three laws passed during the session.

Monday’s two-hour arguments, presided over by Dane County Circuit Judge Richard Niess and attended by a full courtroom of spectators, addressed the motions to dismiss several of the defendants and intervenors, including members of the Wisconsin Elections Commission and the Legislature.

The parties squabbled mainly over the defined limits on the Legislature’s periods of assembly, what constitutes the duration or terminus of a floor session and what can be done during extraordinary sessions in keeping with established statutes and the Wisconsin Constitution.

Beginning with the motion from members of the Elections Commission, attorney Daniel Bach of Madison firm Lawton & Cates made the case that the Elections Commission is “not adverse” in the suit since it is an independent agency whose members have offered no suggestion they will not follow the law.

But Jeffrey Mandell, the plaintiffs’ lawyer from the Madison firm Stafford Rosenbaum, stated this independence is precisely why the agency needs to be party to the lawsuit since “neutrality is adverse to the plaintiffs.”

He pointed out if the commission is dismissed “and then we have a compliance issue, we would have to file a whole new lawsuit” to get the commission members back in court. He said he is not satisfied with “the idea that we should just assume they are going to follow the law.”

The heart of Monday’s arguments, however, came with the Legislature’s motion to dismiss.

Misha Tseytlin, the Legislature’s counsel from nationwide firm Troutman Sanders, emphasized a 1968 amendment of Article 4, Section 11 of the Wisconsin Constitution defining biennial floor sessions and the Legislature’s authority to keep itself in continuous session throughout the year independent of the status of a given biennial session.

“The term ‘regular session’ is not in the constitution,” Tseytlin noted. “It does not require the Legislature to label what it does.”

Tseytlin also repeatedly questioned whether the court even has jurisdiction to rule on the constitutionality of the extraordinary floor session, something Niess resisted at each turn.

Mandell retorted that the 1968 amendment “does not give the Legislature carte blanche to do whatever it wants.”

“The Legislature is trying to say that the 1968 change created a loophole through which they can drive a truck,” Mandell said, also finding the idea that the court is powerless to stop the Legislature from doing what it wants “an absurd consequence.”

Mandell said multiple statutory subsections cast doubt on the idea that the Legislature is in a continuous, perpetual session existing both above and as a part of an ordinary biennial session.

Tseytlin also warned of the dire repercussions of invalidating the work the extraordinary session did, noting other sessions since the 1968 rule could be invalidated as well.

Citing sheriffs and district attorneys appointed in the last 20 years and the convictions they made, for example, Tseytlin warned that they would be found to have acted outside their authority and that criminals like “multiple-time child sex offenders” would all be greenlit to file postconviction motions challenging their sentences.

Mandell resisted this, stating “disaster will not reign” if the Legislature is found to have acted against the constitution and statutes governing these sheriffs’ and district attorneys’ terms. He also noted that since the relevant child sex offender laws have been amended and ratified since they were enacted, they would be protected from any ruling over the lame-duck session.

Judge Niess also bucked against Tseytlin’s point, stating he is doubtful that a ruling against the Legislature would “throw open the prison doors.”

Niess declined to rule at the conclusion of arguments, stating he will release a written decision shortly.

Niess began Monday’s arguments by noting that whatever his decision on the motions may be the matter is certain to be submitted to the appellate court “before the ink is even dry on my order.”

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