Dylan Brogan
On Thursday, Dane County Judge Richard Niess ordered the judicial equivalent of a David Copperfield act: He made the GOP’s controversial lame-duck session limiting Gov. Tony Evers’ powers… disappear.
“It is as if it never existed; it is no law at all,” wrote Niess in his March 21 opinion. “The rule of law — the very bedrock of the Wisconsin Constitution — cannot, in any respect, abide enforcement of laws that do not exist.”
Niess wrote that failure to block the laws passed in a frenzied “extraordinary session” by the Legislature in December 2018 “cannot be seen as anything other than irreparable harm to a constitutional democracy such as ours.” The lawsuit was brought by The League of Women Voters, Disability Rights Wisconsin, Black Leaders Organizing for Communities and individual voters.
In the bombshell ruling, Niess writes that the legislative session was unconstitutional because the state Constitution constrains the Legislature from meeting unless the meeting is authorized by statute or convened by the governor in special session. The session was convened through majority votes by two legislative committees controlled by Republicans — not by outgoing Gov. Scott Walker.
“Why would the people expressly grant the Governor authority to call the Legislature into session on ‘extraordinary occasions’ but not expressly grant the same authority to the Legislature if that was in fact the people’s intent in adopting?” asked Niess. “Do procedural illegalities that produced the legislation doom the legislation itself?”
Niess’ answer: yes.
The judge’s order overturns Republican measures that required Evers and Attorney General Josh Kaul to receive legislative permission before, respectively, withdrawing from lawsuits and settling lawsuits. It also voids 82 last-minute appointments made by Walker in his final days as governor.
Critics of the decision argue the lame-duck session in December was far from the first “extraordinary session” that has been called over the past 30 years. Both Democrats and Republicans have called such sessions. Attorneys for the Legislature argue “invalidating the concept of extraordinary sessions could expose more than 3,000 pages of laws passed during such sessions to legal challenges.”
Niess called this argument an attempt “to scare this Court into abandoning its duty” by urging an “alarmist domino-theory.” The order issued March 21 only blocks the laws passed in December 2018.
The judge also denied a motion to stay his order pending an appeal, which is undoubtedly coming.
“Is there anything more destructive to Wisconsin’s constitutional democracy than for courts to abdicate their constitutional responsibilities by knowingly enforcing unconstitutional and, therefore, non-existent laws?” Niess wrote.
Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) have, so far, remained silent on the decision.
Read the whole opinion below:
