Lame Duck Lawsuit Could Void Over 300 Laws

Fiserv Forum deal could become collateral damage in extraordinary session court battle

In the extraordinary session lawsuit, leading WI Dems unwittingly assert that public funding used to build the Fiserv Forum was unconstitutional - along with 300+ other bills passed in extraordinary session. #wiright #wipolitics. Click To Tweet

March 20, 2019

By Robert Fassbender

Fassbender is President and General Counsel of the Great Lakes Legal Foundation. He attended Monday’s hearing of League of Women Voters v. Knutson in Dane County Circuit Court.

In a March 13 amicus brief filed in Dane County, former Wisconsin Democratic legislators attack the validity of laws passed in extraordinary sessions despite their extensive use over the years by both parties, including these legislators. The amici, as they’re called, are U.S. Senator Tammy Baldwin, former U.S. Senator Russ Feingold, U.S. Representative Mark Pocan, and former U.S. Representative Dave Obey.

Ironically, the Fiserv Forum — Milwaukee Bucks arena and venue for the 2020 Democratic Presidential Convention — received $250 million in public funding through an extraordinary session, yet the lawsuit alleges such sessions are unconstitutional.

In their brief, the prominent former Wisconsin legislators asked a Dane County Circuit Court to declare such extraordinary session laws “void and unenforceable.” Ironically, the Fiserv Forum—Milwaukee Bucks arena and venue for the 2020 Democratic Presidential Convention—received $250 million in public funding through an extraordinary session bill, 2015 Senate Bill 209, which passed on a bipartisan vote.

Over the past 45 year, the Wisconsin Legislature enacted over three hundred laws during extraordinary sessions. In addition to the Buck’s Arena, laws potentially impacted include medical assistance, redistricting, campaign financing. In all, over 3,000 pages. At a March 18 hearing in Dane County Circuit Court, attorneys suing to overturn the lame duck laws did not dispute that all prior extraordinary session laws could fall if they are successful. The court could issue its decision shortly.

The suit involves the controversial lame-duck legislation passed and signed into law by outgoing Gov. Walker after the November 2018 elections. The laws, among other things, retract certain powers of the executive branch, including the governor and attorney general, while bolstering related legislative powers. One such change relates to the power to settle state litigation.

The partisan claim is that newly elected Democrat Gov. Tony Evers and Attorney General Josh Kaul were ostensibly the targets of these enactments, with Republican Assembly Speaker Robin Vos, Senate Majority Leader Scott Fitzgerald, and Gov. Scott Walker the chief architects. It’s hard to argue otherwise. Beyond the politics, however, are defining constitutional issues being put before state and federal courts for the first time.

Four lawsuits are seeking to invalidate parts or all of the extraordinary session laws. This suit, brought by the League of Women Voters of Wisconsin and other groups aligned with the Democratic Party, focuses on the Wisconsin Constitution’s provision requiring the legislature to only act at times “provided by law.” Other suits rest on Wisconsin constitutional separation of powers concepts and sweeping U.S. constitutional arguments being asserted in federal court.

The League of Women Voters suit claims extraordinary sessions laws are void under the constitution as they were not convened as provided by law. They ask the court to invalidate the extraordinary enactments in their entirety, which would wreak havoc considering the numerous prior laws enacted during extraordinary sessions.

Pocan was in the Legislature in 2009, when an extraordinary session was convened with the sole purpose of passing one of his bills.

Amici Baldwin, Feingold, Pocan, and Obey also broadly claim extraordinary sessions are unconstitutional — not just the lame-duck bills signed by Gov. Walker.

This lawsuit brought to Amici’s attention, for the first time, the question presented here: whether the Legislature may constitutionally convene an extraordinary session. After reviewing the relevant legal authority, Amici have concluded that the Constitution and the current statutory regime do not allow the Legislature to convene such a session and therefore believe that the December 2018 extraordinary session was convened outside the Legislature’s constitutional authority.

Amicus brief, page 5.

This is a curious revelation considering the extensive use of extraordinary sessions by both parties, including the aggrieved amici legislators. For example, 2009 AB 255 was a 43-page omnibus bill authored by Mark Pocan and passed in a May 2009 Extraordinary Session by a partisan vote.

It’s not clear how they conclude they have clean hands given their prior leadership on sweeping extraordinary sessions bills. But they try.

Although extraordinary sessions were held during some Amici’s tenure in the Legislature, Amici were not directly involved in convening those sessions, and the issue presented by this case was not, to their knowledge, raised at the time.

Amicus brief, page 5.

“Not directly involved in convening” extraordinary sessions? But the Assembly Democrats ran the Assembly and Democratic Speaker Pro Tempore Staskunas sat in the chair when the Assembly was called into extraordinary session for the solepurpose of passing Pocan’s AB 255. Also on the bill were Democratic Assembly Speaker Michael Sheridan, Assembly Majority Leader Thomas Nelson, Senate Majority Leader Russ Decker, Senate Assistant Minority Leader Dave Hansen. AB 255 was Pocan’s bill, but it was supported by Assembly and Senate Democratic leaders who called an extraordinary session for specific purpose of passing that bill. To say Pocan was not directly involved in convening this session is akin to someone ordering a hit but claiming innocence because he didn’t pull the trigger.

Baldwin, Feingold and Obey were not in the legislature at that time Pocan passed his sweeping extraordinary session bill, but Baldwin, Feingold and Pocan were in the legislature during numerous extraordinary sessions. The Legislature’s brief notes over the past decades the legislature convened 26 extraordinary sessions.

The defendant in the case is the Wisconsin Legislature, currently led by Vos and Fitzgerald (and nominally, the Wisconsin Elections Commission is named as a defendant). The Legislature’s brief was filed by former Wisconsin Solicitor General Misha Tseytlin. (In another twist, the Office of Solicitor General was eliminated by the same extraordinary session laws challenged in the suit.)

Tseytlin notes that “[f]or decades, legislators and other elected officials of both major parties have uniformly understood that what the Legislature has labeled “extraordinary sessions” are just non-prescheduled floor periods, which lawfully take place during continuous biennial sessions.” 

With respect to the amici, Tseytlin notes: “These legislators do not cite a single example of them, or any other legislator, ever voicing such objections in the decades that this procedure has been in regular use. One wonders how these legislators would now react to a lawsuit seeking to block the use of the Fiserv Forum…”

And to that point, do they really want the requested relief? The amici request:

Until and unless there are changes to Wisconsin law or to the Wisconsin Constitution, the Legislature does not have the authority to convene in extraordinary session. Because the December 2018 extraordinary session was unconstitutionally convened, the resultant laws and Senate confirmations are void and unenforceable.

Amicus brief, page 9.

They don’t distinguish bad from good extraordinary session laws, and thus, all being unconstitutionally convened, are they saying all must be declared void and unenforceable? No judge should reach such a sweeping decision to create legal chaos by voiding hundreds of laws. But then, how does a judge parse out these “bad” extraordinary session laws while keeping the “good” extraordinary session laws intact? Won’t a taxpayer have a claim to recoup Bucks Arena funding and the numerous other taxes raised through unconstitutional enactments?

If a judge doesn’t rule all laws passed in extraordinary session void and unenforceable, how does a judge parse out “bad” extraordinary session laws while keeping the “good” ones intact?

The assertions by our respected former legislators may just be a misunderstanding by out-of-state attorneys not familiar with Wisconsin’s lawmaking process. For example, counsel for the League of Women Voters include attorneys from The Protect Democracy Project, Inc. Their “project” is reportedly a “left-of-center litigation organization created to oppose the policies of President Donald Trump.” Not sure what Trump has to do with this case, but they’re here.

These unquestionably talented lawyers from Yale and Harvard are certainly welcome to Wisconsin. But what they probably don’t understand about the Badger State is that, like our neighbors in Lake Wobegonall the women are strong, all the men are good-looking, and all the children are above average—and all our laws are extraordinary.