The Lame Duck Sessions Start To Reach The WI Supreme Court

The loss by the liberal candidate in the last election cycle will start to come into play here as the Wisconsin State Supreme Court starts to hear a case related to the power grabs executed by the Wisconsin GOP during their now infamous Lame Duck Sessions.

Conservatives who control the state Supreme Court expressed skepticism Wednesday that Republican lawmakers acted unconstitutionally when they held a lame-duck session in December to curb the powers of the incoming Democratic governor. 

The high court — controlled 4-3 by conservatives — must decide whether a method lawmakers have used to bring themselves into session for nearly 40 years is valid. GOP legislators contend a ruling against them could cause hundreds of other laws passed since 1980 to fall. 

Some of the conservatives appeared dubious at the notion that lawmakers couldn’t hold session whenever they saw fit, as those who have sued the state argue.

This particular case deals with the calling of the lame duck sessions themselves…what the legislature refers to as an extraordinary session. Given the court’s questions and comments while hearing oral arguments, I expect the court will find that the legislature was within its right to call the sessions. Particularly given that this has been occurring for forty years before any objections were filed. I don’t totally disagree. But what should happen now is extraordinary sessions should be codified either in the law or legislative rules…with limits and formal notifications…maybe the period from election to new terms should be shortened…etc. There shouldn’t be any gray areas going forward on how they should be held and what the expectations are. This shouldn’t be that difficult and it should be acceptable to both parties. This session favored the GOP but it won’t always be thus.

The case argued Wednesday was brought by the League of Women Voters of Wisconsin, Black Leaders Organizing for Communities and Disability Rights Wisconsin. Their lawsuit centers on how legislators brought themselves into session. 

To pass the lame-duck laws, legislators held what’s known as an extraordinary session, in which they bring themselves to the Capitol when they’re not scheduled to be there. 

The groups argue such sessions aren’t allowed because the state constitution says lawmakers can meet only when called into a special session by the governor or as “provided by law.” State law does not explicitly describe extraordinary sessions. 

Misha Tseytlin, the attorney for the lawmakers, argued legislators are allowed to hold extraordinary sessions because they establish a schedule at the beginning of each two-year term that says they can hold meetings at any time. He contended lawmakers effectively were in a nonstop meeting for two years, with the lame-duck session an extension of a meeting that began in January 2017. 

So yes, I expect the court to side with the lawmakers.

What will be more interesting and less predictable will be the other cases related to the lame duck sessions. The first, is whether the powers that the legislature grabbed from the executive branch and reserved for themselves, the new limitations imposed on the executive branch, and the removal of executive control and oversight of traditionally executive branch functions, are constitutional. Given the make of up the future court, this seems like a toss up. But to me, they shouldn’t stand. And I’ve talked about it here before. Changes to the three branches of state government should be discussed in open sessions with sufficient time for public input and during a normal term cycle. The concept of lame duck should never be attached to changes in the balance of power in government. The actual laws that were passed during these last sessions were simply raw power grabs by the GOP…which they openly admitted to at the time saying that they didn’t trust the newly-elected governor. I would expect those actual laws to be thrown out.

And then there are still the issues around the 82 appointments that were made by former Governor Walker but weren’t confirmed until after the November 2018 elections. Really, what was that all about. The courts have ruled and all 82 are in their jobs…but there needs to be some clarity around gubernatorial appointments in a lame duck period…and better yet, why were there still 82 unconfirmed appointments at election time?? That just seems inept and a dereliction on the part of the legislature.


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