Appeals court sides with GOP, reinstates laws that weakened powers of Democratic governor

Attorney General Josh Kaul, Governor Tony Evers

MADISON — A Wisconsin appeals court sided with Republicans on Wednesday, March 27 and reinstated laws they passed during a legislative session that weaken the powers of the Democratic governor and attorney general.

Dane County Circuit Judge Richard Niess blocked the laws last week as unconstitutional, finding lawmakers convened illegally when they passed them in December. The 3rd District Court of Appeals granted a request by GOP legislators to stay Niess’ ruling pending a full appeal, ruling that Niess underestimated Republican lawmakers’ chance of a successful appeal and injuries that result from enjoining potentially valid legislation.

Some of the laws remain blocked despite the stay, however. Another Dane County judge on Tuesday blocked some provisions that he felt violated the separation of powers. That ruling still stands.

Republicans passed the legislation in December after Democrat Tony Evers defeated Republican Gov. Scott Walker and Josh Kaul defeated Republican Attorney General Brad Schimel in the November midterm elections. The laws were designed to weaken Evers and Kaul and guarantee Republicans could defend in court GOP-backed statutes that Evers and Kaul don’t support.

The laws prohibit Evers from withdrawing from lawsuits without legislative approval, a move designed to prevent him from fulfilling a campaign pledge to pull Wisconsin out of a multistate lawsuit challenging the Affordable Care Act. The laws also prevent Kaul from settling lawsuits without legislative approval and require him to deposit settlement awards in the state general fund rather than in state Department of Justice accounts.

The measures force state agencies to review publications explaining how they interpret state law by July or else take the documents down, allow lawmakers to suspend agency regulations multiple times and grant the Legislature the right to intervene in lawsuits with its own attorneys rather than use Kaul’s DOJ lawyers. Before the laws were enacted the Legislature had to ask a judge for permission to join lawsuits. Republicans also confirmed 82 of Walker’s appointments during the session.

Niess’ ruling blocking the legislation stems from a lawsuit a coalition of liberal-leaning groups filed. They allege that the laws were passed during an illegal extraordinary session. Extraordinary sessions are previously unscheduled floor periods called by the majority party. The groups contend the Legislature can meet only according to dates it adopts the beginning of each biennium or at the call of the governor.

Empowered by the Niess’ ruling, Evers has asked Kaul to pull the state out of the Affordable Care Act lawsuit and has rescinded all 82 Walker appointments.

Another Dane County judge, Frank Remington, blocked key parts of the laws Tuesday in a separate lawsuit brought by a group of unions.

They allege the laws violate the separation of powers between the legislative and executive branches. Remington issued a preliminary injunction Tuesday blocking legislative approval for withdrawing from and settling lawsuits, the publication review and multiple suspensions of agency rules. He let stand language granting legislators the right to intervene in actions, however.

Republicans have said they plan to appeal that ruling. It remains valid for now, though, despite the 3rd District Court of Appeals’ stay in the union case.

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