Attorney tries to persuade judge to toss lame-duck lawsuit

MADISON — An attorney for Republican legislators tried Monday, March 18 to persuade a Madison judge to throw out a lawsuit that challenges their lame-duck laws limiting the powers of the governor and attorney general, arguing lawmakers were within their rights to pass the statutes.

A coalition of liberal-leaning groups headlined by the League of Women Voters filed a lawsuit in Dane County in January arguing the Legislature convened illegally to pass the laws in December.

Republicans passed the laws during an all-night extraordinary session just weeks before Gov. Tony Evers and Attorney General Josh Kaul took office. An extraordinary session is a previously unscheduled floor period initiated by majority party leaders.

The liberal-leaning groups argue that the Wisconsin Constitution allows lawmakers to convene only at such times as provided by law or in a special session called by the governor.

Misha Tseytlin, an attorney for Republican lawmakers, told Dane County Circuit Judge Richard Niess during a hearing Monday that he should dismiss the lawsuit, calling the coalition's arguments "thin gruel."

He argued that the Legislature's session runs continuously for two years regardless of whether floor periods are pre-scheduled. He went on to contend that the Legislature has been able to meet when it chooses since 1968. Ruling that extraordinary sessions are unconstitutional would undo dozens of laws passed during such sessions, including a funding package for the Milwaukee Bucks' new arena and sex offender laws.

"This would be a rolling disaster in the state," he said.

Niess called that argument a "non-starter." Simply because something has become a tradition doesn't make it legal, he said.

The coalition's attorney, Jeff Mandell, insisted that if legislators wanted a continuous session, they would have clarified that's how things work. He rejected Tseytlin's warnings that finding the lame-duck extraordinary session illegal would wipe out dozens of key laws, saying the groups' lawsuit attacks only the December session and they're not seeking a broader ruling.

It was unclear whether Niess would rule from the bench or issue a written order at some point in the future.

The lame-duck laws prohibit Evers from withdrawing the state from lawsuits without legislative approval, which prevents Evers from delivering on his campaign promise to remove Wisconsin from a multi-state lawsuit challenging the Affordable Care Act.

The statutes require Kaul to seek permission from the Legislature's budget-writing committee before settling any lawsuits and mandate he deposit settlement awards in the state general fund rather than in state Department of Justice accounts.

The measures allow lawmakers to intervene in lawsuits using their own attorneys rather than Kaul's DOJ lawyers. They also restrict early in-person voting to the two weeks leading up to an election. In the past, municipalities could set their own hours. Madison and Milwaukee, both Democratic strongholds, held early voting for six weeks leading up to the November elections.

Republicans passed the laws during an all-night extraordinary session in December, just weeks before Evers and Kaul took office. An extraordinary session is a previously unscheduled floor period initiated by majority party leaders.