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Wisconsin Justices Take On Second Lame-Duck Case

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MADISON, Wis. (CN) – The Wisconsin Supreme Court has decided, without being asked, to take up a second lawsuit over the GOP-controlled Legislature’s lame-duck laws limiting the powers of the new Democratic governor and attorney general.

Released late Friday afternoon, the Supreme Court’s two-page order “concluded that the interests of the state would be best served” if it took jurisdiction over a lawsuit filed by local unions, including a chapter of the Service Employees International Union, or SEIU, and settled the matter instead of the Wisconsin Court of Appeals.

The decision comes just days after the high court unanimously granted the Legislature’s request that it take on a different lawsuit over the December lame-duck floor session.

The provisions at issue gave the Legislature the power to appoint board members and restrict the governor’s ability to appoint the chief executive to the Wisconsin Economic Development Corporation, or WEDC, a public-private jobs agency formed during former Republican Governor Scott Walker’s tenure.

The new measures also gave state lawmakers broad oversight power over moves the governor could make on future health care waivers.

In addition, the laws implemented drug testing and minimum work requirements for some recipients of welfare such as food stamps, as well as a statewide two-week limit on early voting.

The SEIU lawsuit argues that the Legislature’s actions violated the state’s constitutional separation of powers. Dane County Circuit Judge Frank Remington issued a partial injunction in that case in late March, which invalidated some of the lame-duck laws while leaving others in place. The decision was appealed by the Legislature shortly thereafter.

The Supreme Court’s Friday order for the SEIU suit comes four days after it granted a bypass petition filed by the Legislature in another lawsuit brought by the League of Women Voters of Wisconsin and others also claiming that the Legislature’s surprise, hasty lame-duck session was carried out in excess of its powers under the Wisconsin Constitution.

Also in late March, Dane County Circuit Judge Richard Niess issued an injunction for the League of Women Voters’ lawsuit blocking all of the lame-duck legislation, agreeing that the Legislature did not convene legally to pass its bills constraining Governor Tony Evers and Attorney General Josh Kaul, both Democrats who were elected in last November’s midterm race that saw liberals take every statewide office.

After Judge Niess’ order was appealed the next day by the Legislature, state appeals court judges revived some of the lame-duck provisions about a week later, while leaving alone others blocked by Judge Remington’s order in the union case.

Friday’s order is a rare, surprising move by the Wisconsin Supreme Court, considering there was no motion by either party asking it to settle the SEIU suit.

The order was split 4-3 across party lines, with the conservative justices agreeing to take on the lawsuit. The court’s three liberal justices resisted the move in their dissent, stating they would prefer to “allow the appeal to proceed in the court of appeals.

“Further,” the one-paragraph dissent states, “this court should not reach down and assume jurisdiction of the appeal without giving the parties notice and an opportunity to be heard.”

One major issue yet to be resolved between the lawsuits is the status of 15 appointees remaining from 82 total appointments made by former Governor Walker that were confirmed in the waning days of his tenure.

Governor Evers reappointed 67 of the them, leaving 15, including Public Service Commission head Ellen Nowak, in limbo.

The state high court’s moves to take on both lame-duck cases come after liberal state appeals court judge Lisa Neubauer conceded to conservative challenger and fellow appellate judge Brian Hagedorn on April 10 in the race for a seat on the high court vacated by liberal Justice Shirley Abrahamson, a 45-year veteran of the bench who is retiring as she battles cancer.

Once Hagedorn is sworn in, the balance on the Wisconsin Supreme Court will tilt to an even more lopsided 5-2 conservative majority.

The court has scheduled oral arguments in the League of Women Voters’ suit for May 15 in Madison. Last Friday’s order stated that a forthcoming order will establish the briefing schedule for the SEIU case.

Two other lame-duck lawsuits are also in play in federal court.

In one of the suits, filed by One Wisconsin Institute and other liberal advocacy groups, U.S. District Judge James Peterson blocked early voting limits in the lame-duck bills in January.

In the other federal suit brought by state Democrats, Judge Peterson has asked all parties to file briefs by April 26 weighing in on whether he should put the case on hold pending the resolution of the state court actions.

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