February 15, 2019. Three lawsuits currently challenge the validity of the legislation passed in the November 2018 Extraordinary Session. These extraordinary session laws, also referred to as the “lame-duck legislation,” are being challenged on procedural and substantive grounds for moving authority currently in the executive branch and placing it in the legislative branch. Specifically, these lawsuits challenge the provisions in these bills that introduce legislative supervision over withdrawing or settling litigation of state laws, alter the ways agencies may promulgate guidance documents, and allow the legislative committee charged with overseeing administrative rules to suspend those rules.
Key Debate—Legislative Role in State Litigation
The legislation allows Legislature to intervene in actions where a party is challenging the construction or validity of a statute (Sec. 97). When the Legislature intervenes under this section, they may obtain legal counsel outside the Wisconsin Department of Justice. (Sec. 5). It also changed when the Wisconsin Department of Justice may “compromise or discontinue[e]” civil actions, by replacing the requirement of gubernatorial approval with approval by either a legislative intervenor or the joint committee on finance. (Sec. 26). However, such a plan cannot even be submitted if it concedes the unconstitutionality or other invalidity of a statute, unless the plan has approval by the joint committee on legislative organization. Sec. 26. Similarly, the Act requires the attorney general to get approval by a legislative intervenor or the joint committee on finance before he may “compromise” or “settle” actions for injunctive relief. Sec. 30. The legislation imposes requirements for new and existing agency guidance documents (Sec. 31) and extends a party’s ability to challenge administrative rules to such guidance documents as well (Sec. 65-71). Finally, the Act allows the joint committee for review of administrative rules to suspend agency rules, without affording the Governor an opportunity to veto that suspension. (Sec. 64.)
Unions Claim GOP Law Unconstitutional Power Grab
The most recent challenge to this legislation was brought by Service Employees International Union (SEIU). In a complaint filed on February 4, 2019, the parties targeted the provisions detailed above on substantive grounds. They allege that these provisions violate the separation of powers and constitute “an unprecedented power grab by legislators.” Compl. 3. The complaint argues that the laws deprive the Executive of authority it is entitled to and prevent the new Governor, the new Attorney General and administrative agencies from effectively doing their job.
Second Suit Focus on Procedural Defects
In an another suit filed on January 10, the League of Women Voters, along with Disability Rights Wisconsin and Black Leaders Organizing for Communities, made constitutional challenges against the extraordinary session laws. On Feburary 11, 2019, the court declined the parties’ proposed order for a temporary injunction. The next day, the parties moved for temporary injunction and filed a supporting brief on the issue. The motion will be heard on March 18, 2019. The Legislature has retained former Wisconsin Solicitor General, Misha Tseytlin, as counsel in that case.
Early Voting Changes Challenged in Third Suit
Finally, the lawsuit filed by One Wisconsin Now challenges the early voting provisions in the extraordinary session legislation. As of now, that provision has been blocked by a federal district judge, who found them to be “clearly inconsistent with the injunctions” on similar voting laws in 2016.