COVID-19 Special Coverage
Wisconsin Supreme Court restores lame-duck appointments by Walker
Photo Credit: Carrie Thompson
Wisconsin Supreme Court restores lame-duck appointments by Walker

The Wisconsin Supreme Court on Tuesday restored all 82 nominees who were appointed to governmental positions by former governor Scott Walker in the lame-duck session following his campaign loss to Governor Tony Evers.

The ruling follows a recent decision by the 3rd District of the Wisconsin Court of Appeals, which stayed a lower court’s decision finding the appointments and legislation enacted during the lame-duck session unconstitutional. Evers restored 67 of the 82 appointees after the court of appeals ruling.

The parties, however, continued to dispute the effect of the “stay” granted by the court of appeals, especially with respect to the status of the 82 appointees. The Legislature took the position that the “stay” restored those appointees to the positions they had held prior to the circuit court’s injunction. Governor Evers took the position that the court of appeals’ stay was prospective only and that [he] had withdrawn those appointments at a time while the injunction was in effect so those appointees no longer had any claim to their positions.

The Wisconsin Supreme Court has the power to grant temporary relief pending appeal in this matter pursuant to  Wis. Stat. § (Rule) 808.07(2). Furthermore, Wisconsin case law determines the appropriateness of temporary relief via analyzing four factors: whether the moving party has shown (1) that they are likely to win on the merits of the appeal; (2) there will be irreparable injury if the stay is not granted; (3) that the stay will cause no substantial consequences to other parties; and (4) that the stay will not harm public interest.

The court ruled that re-instating the appointees satisfied these criteria.

The state of affairs that was existing immediately prior to the entry of the circuit court’s injunction in this case was that the three Acts were in effect and the 82 appointees were performing the duties of their respective positions. We therefore tailor the relief we grant to restore that state of affairs to the extent practicable. This requires two separate forms of relief. First, we continue the court of appeals’ stay of the circuit court’s injunction against the enforcement of the three Acts and the enforcement of the confirmations of the 82 appointees for the duration of this appeal. Second, we grant an injunction returning the 82 appointees to the respective positions to which they were appointed immediately and for the duration of this appeal.

Therefore, all 82 appointees made by Walker during the lame-duck period were reinstated pending the outcome of the ongoing appeal of the constitutionality of such appointments.