MacIver News Service | March 26, 2019
By M.D. Kittle
MADISON, Wis. — Liberals are celebrating a big court victory now, but will a Dane County judge’s ruling tossing out laws from the Legislature’s late-year extraordinary session survive the appeals process?
Will it be another Act 10 for Wisconsin’s oft-heartbroken left?
Assembly Majority Leader Jim Steineke thinks so.
“I remember back then (during the Act 10 protests) when the Capitol was under siege, Democrat lawmakers were opening their office windows to let protesters in,” the Kaukauna Republican told MacIver News Service Monday on the Jay Weber Show on NewsTalk 1130 WISN. “I think this is no different, only the judge is opening the window to let Evers do whatever he wants with this window of opportunity.
“It’s going to get overturned.”
Act 10, former Gov. Scott Walker’s signature public union reform legislation, went down a nearly identical road in 2011 after the Republican-controlled Legislature narrowly passed the measure amid mass Big Labor-led protests and threats of political recalls.
Democrats and their allies immediately sued, and won an initial victory in 2012 before liberal Dane County Circuit Judge Juan Colas. Colas ruled Act 10 violated workers’ constitutional rights to free speech and freedom of expression.
Liberals got another partial victory later from a federal district court, but that win disappeared in the federal appeals process.
In July 2014, the Wisconsin Supreme Court upheld Act 10 in a wider 5-2 decision. The late Justice Patrick Crooks, clearly no fan of the law that required public employees to pay more — or, in some cases, something — for their benefits and ended compulsory union dues, sided with the court’s conservative wing in finding the law did not violate either the U.S. or state constitution.
Wisconsin’s right-to-work law, signed by Walker in 2015, endured a similar path. The 3rd District Court of Appeals, where the appeal on the injunction against the extraordinary session laws was expected to be heard, upheld the worker freedom law in a 2017 ruling. The decision overturned a lower-court ruling — in Dane County once again — that declared unconstitutional the law that saved private-sector employees from forced unionization.
Also in 2017, a few months before the state appeals court ruling, the 7th U.S. Circuit Court of Appeals in Chicago tossed out a similar federal challenge and declared Wisconsin’s right-to-work law constitutional.
Rick Esenberg, president of the Wisconsin Institute for Law & Liberty, believes Dane County Circuit Judge Richard Niess’ ruling Thursday was an overreach and it will go the way of Act 10 and right-to-work.
“It is unlikely the Supreme Court is going to uphold Judge Niess’ decision, and it won’t be a conservative-liberal thing, either,” Esenberg said. “It wouldn’t surprise me if they (the Republican-controlled Legislature) get five Supreme Court votes to reverse.”
Conservative justices hold a slim 4-3 majority on the court.
Niess’ ruling invalidated the three laws passed in December’s extraordinary session and vacated the 82 state government appointments.
Democrats railed against the session, blasting Republicans for grabbing power from, at the time, newly elected Gov. Tony Evers and fellow Democrat, Attorney General Josh Kaul.
In his sweeping ruling, Niess found the extraordinary session lame-duck effort unconstitutional — “as if it never existed; it is no law at all.”
The Republican-controlled Legislature is seeking stay in the 3rd District. The state appeals court was accepting briefs until 4 p.m. Monday from all parties who wished to weigh in on the stay, including the state’s attorney general, who was granted permission to enter the legal fray as an interested party.
Meanwhile, the Dane County Circuit Court is expected to issue a written decision by close of business Tuesday in a separate by similar lawsuit brought by Service Employees International Union.
And another lawsuit by the Democratic Party of Wisconsin is moving forward in Dane County, with oral arguments scheduled for April 26.
Niess agreed with the liberal plaintiffs in the case, led by the League of Women Voters, that the Legislature had no constitutional authority to call the lame-duck “extraordinary session.”
Legal experts said the legal argument is a stretch at best. The state constitution notes the Legislature is to meet in a manner provided by law or when it is called into special session by the governor. Walker did not call the session, but the Legislature, Steineke and others assert, has an open schedule and is free to meet, upon proper notification, at any time during the agreed-upon schedule.
Niess’ ruling effectively challenges decades of extraordinary sessions, called by legislatures controlled by both parties.
“They have been doing this for almost 40 years, and nobody has challenged it,” Esenberg said, adding that extraordinary sessions fit under previous decisions on prescribed law. “Typically a court is going to defer to the Legislature in determining its operating procedures.”
But not the Dane County Court — again.
While liberals celebrate and Evers quickly moves to grab back the power he lost in December, Niess’ ruling has made a potential mess of hundreds of laws. Nearly 300 laws could arguably be invalidated, including the one that provided taxpayer backing for the construction of Milwaukee’s gilded Fiserv Forum, where the Bucks play and the Democrats plan to hold their 2020 convention.
“The problem is that what if there are rules or promulgated actions taken that people might actually rely on or need to rely on or take action on and nobody knows whether there will be a law or not?” Esenberg said.
Evers called Niess’ ruling a “victory for the people of Wisconsin,” and said the Republicans had overreached in the extraordinary session.
Democrats made similar arguments amid the flood of lawsuits they filed over the past eight years of Republican leadership in the Legislature and in the governor’s office.
But the first branch, as Republican leadership has pointed out, has the right to make and debate laws, and that’s exactly what they did, in the timeframe allotted to them. Further, Walker was still governor when he signed the bills into law.
As Bob Dylan prophesied in “The Times They Are A-Changing,” the “loser now will be later to win.” Wins come easily for liberals on their turf in Dane County. Sustaining those legal victories in the appeals process is another matter entirely.
“It’s become what we have come to expect over the last eight years,” Steineke said. “We pass laws lawfully, do all the notice requirements, we do everything correctly and then Democrat groups like the League of Wisconsin voters sue. Dane County judges then rule in their favor, and then every other court after overturns that Dane County judge.”
“It’s something unfortunately we have become used to and it’s something we will continue to fight against.”