Wisconsin appeals court reinstates some lame-duck laws limiting executive power
Photo Credit: Carrie Thompson
Wisconsin appeals court reinstates some lame-duck laws limiting executive power

The 3rd District of the Wisconsin Court of Appeals on Wednesday stayedlower court ruling, which held that laws passed and appointments made during the December lame-duck session were unconstitutional, thereby reinstating the some of the laws.

The court, in granting the stay, found that plaintiffs’ likelihood of success on appeal and irreparable injury that could result from blocking “potentially valid legislation and appointments” were underestimated because there was “more than a ‘mere possibility'” that the plaintiffs would prevail on appeal and that “people of a state always suffer a form of irreparable harm any time statutes enacted by their representatives are enjoined.” However, the court refused to decide upon whether the laws should be granted a presumption of constitutionality in deciding to grant the stay.

The day after the ruling, Governor Tony Evers gave 67 of the 82 appointees their jobs back.

Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald released a joint statement praising the court’s decision:

Last week’s circuit court ruling created a constitutional crisis—established law says that the court cannot tell the Legislature how to set its rules. [T]he rule of law has prevailed. Independent judges have put a Dane County ruling on hold that was based on politics, not the law. A judge should not violate the Legislature’s basic ability to convene when its duly elected members call a session day.

Earlier in March, Dane County Circuit Court Judge Richard Niess had granted the temporary injunction on the laws passed during a special session of the legislature, which sought to limit powers of the state’s incoming governor, concluding that the “extraordinary session” was procedurally unlawful and prohibited under the state constitution. The decision led to three bills being unenforceable and 82 appointments being vacated. A day before this ruling, another judge, Judge Frank Remington of the Dane County Circuit Court in Wisconsin granted an injunction against some of the laws passed during the lame-duck session, finding them unconstitutional. This injunction, despite Wednesday’s ruling, remains in place; however, an appeal is likely to follow.

In January a federal judge blocked a law  passing during the lame-duck session that would place limitations on early voting, finding that the “challenged provisions … clearly inconsistent with the injunctions” issued regarding similar restrictive voting laws in 2016. In February the Democratic Party of Wisconsin filed a federal lawsuit claiming that the laws passed during the session violates the US Constitution Guarantee Clause, which guarantees every state the right to a republican form of government.