MacIver News Service | April 30, 2019
By M.D. Kittle
MADISON, Wis. — In a significant victory for the Republican-controlled Legislature, and a rebuke of Democratic Gov. Tony Evers’ swift political purge, the Wisconsin Supreme Court on Tuesday ordered the reinstatement of more than a dozen public servants confirmed during December’s controversial extraordinary legislative session.
The 4-3 decision also is a stinging criticism of a liberal Dane County judge’s previous ruling and arguably signals how the conservative-led court will ultimately rule on the appeal before it.
Seizing a narrow window of legal opportunity, Evers in March rescinded 82 appointments confirmed by the Legislature just weeks before the Democrat took office. He reappointed all but 15 of the public servants.
“Because the circuit court should have entered a stay of its injunction at the time it was entered, and in order to ensure the effectiveness of our order returning the 82 appointees to their positions, we order that the Governor’s March 22, 2019 letter withdrawing the appointments was without legal effect and remain so for the duration of the appeal,” the court ordered.
“The 82 appointees shall immediately be allowed to perform the duties of their respective positions in the same manner as they were performing those duties prior to March 21, 2019,” the majority stated in its decision, released early Tuesday evening.
Ellen Nowak, chairwoman of the three-member Public Service Commission, was one of the public servants unceremoniously drummed out of her position by Evers’ act. Nowak, attempting to show up for work, was turned away on orders of the governor’s Department of Administration. Evers’ bureaucrats quickly removed from the PSC website all evidence of the commissioner, who previously served as Department of Administration secretary under former Republican Gov. Scott Walker.
“I’m pleased with the Supreme Court’s decision and look forward to returning to the Commission,” Nowak said in a statement. She will do so on Wednesday, according to the Supreme Court order.
In March, liberal Dane County Judge Richard Niess ruled unconstitutional the GOP-controlled Legislature’s extraordinary session and the three omnibus laws that came out of it, agreeing with left-wing plaintiffs that the Legislature did not have the authority to call the “lame-duck” session.
Niess further refused to grant a stay, opening the gates of legal chaos. The judge’s ruling cast doubt on the validity of some 300 laws forged in 45 years worth of extraordinary session — including taxpayer funding for the Milwaukee Bucks arena, medical assistance provisions, and campaign financing.
Evers, like Niess, ignoring the inevitable appeal, acted as if the circuit court’s ruling was a done deal. It wasn’t.
The Legislature appealed. The Third District Court of Appeals stayed the lower court’s ruling striking down the extraordinary session laws, but created its own confusion regarding whether Evers’ acted properly in sacking the appointees. The Legislature then asked the Supreme Court to take up the case, seeking temporary relief from the lower court’s ruling while the appeal proceeds.
Evers’ legal team asserts the Legislature “is creating a false picture of an emergency or of chaos surrounding the various boards and commissions and that there is no need for this court to grant any immediate temporary relief.” The court, at least the majority, sees otherwise.
Tuesday’s narrow 4-3 decision again put the high court’s three liberals in a dissenting position. Justice Ann Walsh Bradley insists the majority relies on an agreement not “advanced” by the parties. “Indeed, it appears that the majority has changed the substantive law here,” the justice wrote in her dissenting opinion. She wants more briefing, less action.
The ultimate argument in the appeal is whether the Legislature had the authority to call the session, a “power grab” according to Evers and his friends on the left. The state constitution is clear on the “First Branch’s” authority to meet in order to conduct the people’s business.
In its latest orders, the Supreme Court’s conservative majority notes that the appeals process has just begun but that the Legislature has made a compelling argument.
“Our review of the Legislature’s motion and the arguments it made below leads us to conclude that it has set forth an argument that has ‘more than the mere ‘possibility’ of prevailing,” the decision states.