Tony Evers and the Supremes

Even for mere political reasons the 4–3 decision in favor of the so-called “lame duck” laws passed by the state Legislature should have been obvious.

It should have been obvious because the Legislature has passed so-called “lame duck” laws numerous previous times with no court challenges, as George Mitchell points out:

Credit Wisconsin Supreme Court Justice Shirley Abrahamson for knowing how to keep a secret.

We learned Friday that Abrahamson has watched quietly throughout her decades-long tenure as Wisconsin legislators acted, time and again in her opinion, outside the limits of the state’s constitution.

How else to understand her agreement with Justice Rebecca Dallet that:

The Legislature unconstitutionally met in an “extraordinary session” in December 2018 and…[i]n order to uphold the constitutionality of the December 2018 extraordinary session, the majority opinion subverts the plain text…of the Wisconsin Constitution.

By signing Dallet’s dissenting opinion, but adding no comment of her own, Abrahamson was spared the task of explaining the apparent illegitimacy — in her view — of extraordinary sessions held on many occasions during the last four decades.  (Justice Ann Walsh Bradley, first elected to the court in 1995, joined Abrahamson in concurring — without comment — in Dallet’s dissent.)

Former Democratic Assembly Speaker Tom Loftus recently wrote an op-ed in The Capital Times on the history and constitutional basis for extraordinary sessions.  He said, in part:

[T]he legislature is always in session. The reality of one continuous two- year session was formally acknowledged by a constitutional amendment ratified in April 1968: “Shall Article IV, Section 11 of the Constitution be amended to permit the Legislature to meet in regular session oftener than once in two years?” The amendment was ratified in a 670,757 to 267,997 vote.

The Legislature, under the Constitution, governs itself — setting its own rules of organization, procedures and calendar. So an extraordinary session is simply a floor period added to the dates adopted at the beginning of the two-year session, but, like a special session, it is restricted in subject matter.

Extraordinary sessions came to be part of the Legislature’s way of doing business when I was Assembly speaker and Tommy Thompson was minority leader. The leaders call the session dates and the subject.

The legal staff of the nonpartisan Legislative Reference Bureau has addressed this issue on at least two occasions, once in the late 1990s and again earlier this year. Abrahamson and Bradley must have shuddered when reading the 1998 LRB report, but they kept their concerns to themselves all these years — until last Friday.

There is, of course, an alternative explanation. Both Abrahamson and Bradley never saw a problem with extraordinary sessions until one directly pitted a Republican legislature against a newly elected Democratic governor.  Their concurrence with Dallet’s dissent is a reminder of how Wisconsin’s high court has become, for the left, a venue for undoing lawful legislative action with which it disagrees.

As Justice Daniel Kelly seeks election to a full term next year, the long-term implications of Dallet’s outcome-driven dissent are clear. Had Justice-elect Brian Hagedorn not prevailed in the April 1 election, the left would be a single vote away from a Supreme Court willing to do its bidding.

Matt Kittle picks winners and losers, beginning with, well, the losers:

“The circuit court invaded the province of the Legislature in declaring the extraordinary session unconstitutional, enjoining enforcement of the three Acts, and vacating the 82 appointments. We vacate the circuit court’s order and remand the matter to the circuit court with directions to dismiss the League’s complaint,” asserts the majority opinion in the 4-3 decision, written by Justice Rebecca Grassl Bradley.

Surprising to some court watchers was the split decision, with all three liberal justices dissenting. In the deeply divided Badger State, such jurisprudence division has become par for the course on Wisconsin’s high court.

The majority opinion, however, is crisp and clean, and quickly dispatches a liberal legal argument that is tenuous at best.

“We hold that extraordinary sessions do not violate the Wisconsin Constitution because the text of our constitution directs the Legislature to meet at times as ‘provided by law,’” Bradley wrote. She pointed to statute that “provides the law giving the Legislature the discretion to construct its work schedule, including preserving times for it to meet in an extraordinary session.”

Democrats and their liberal allies were livid in early December when the Republican-led Legislature passed three bill packages, many of them measures limiting the power of then-incoming Gov. Tony Evers and Attorney General Josh Kaul, both Democrats. The Legislature also signed off on scores of appointments to state boards and commissions. Outgoing Republican Gov. Scott Walker signed the bills into law. 

Democrats called it all a “power grab.” Republicans said they were merely trying to protect the government reforms they had put in place over the past eight years.

Evers clearly encouraged his left-wing partners to sue the Legislature. The League of Women Voters, Disability Rights Wisconsin, Black Leaders Organizing for Communities, and union leaders quickly complied.

The plaintiffs argued that extraordinary sessions are unconstitutional. Consequently, all legislation passed during the session is void and that the Senate’s confirmation of 82 gubernatorial appointees during the session was invalid.

Liberal Dane County Judge Richard Niess agreed. He sided with the League and temporarily blocked the laws from implementation. Niess also vacated all 82 appointments. The Evers administration hastily forced out some of the appointees, including Public Service Commission Chairwoman Ellen Nowak. Nowak, attempting to show up for work, was turned away on orders of the governor’s Department of Administration.

Niess’ ruling created confusion in its wake, principally begging the question: If the December extraordinary session was unconstitutional, aren’t all of the laws that came out of similar sessions over the past four decades or so unconstitutional? That would include the law that effectively built Milwaukee Fiserv Forum, where the Milwaukee Bucks play.

Even some critics of the laws from the session saw the plaintiffs’ legal argument as absurd.

The Legislature argued that extraordinary sessions conform with the Wisconsin Constitution and state statute. The First Branch can set up its calendar as it sees fit, in accordance with the constitution.

On Friday, the Supreme Court agreed with that legal argument.

“We are pleased by the Supreme Court’s common sense decision. The Court upheld a previously non-controversial legislative practice used by both parties for decades to enact some of the most important laws in the state,” Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) said in a joint statement.

“This lawsuit, pursued by special interests and Governor Evers, has led to an unnecessary waste of taxpayer resources. We urge the governor to work with the Legislature instead of pursuing his political agenda through the courts,” the lawmakers concluded.

Here are the Winners and Losers of Friday’s Supreme Court Ruling.


  • The Republican-Controlled Legislature — The majority opinion is a clear victory for the Legislature’s majority. It upholds the scores of laws passed in the weeks before liberal candidate Tony Evers became Gov. Tony Evers, and before liberal attorney Josh Kaul became Attorney General Josh Kaul. It also fully restores to their posts good public servants, many of whom were used by Evers as political pawns in the legal battle.
  • The Wisconsin Constitution — Whether or not you like the legislation that came out of the extraordinary session, the Supreme Court ruling shows the Republican majority was well within its constitutional rights to meet and pass legislation. How did the court’s conservative majority arrive at that decision? The state constitution and laws clearly say so. More so, the court’s decision is an affirmation that the constitution is not to be trifled with, and that the founding document designates the Legislature as the First Branch for a reason. The Legislature makes the laws, and it does so on the schedule it sets.
  • The Taxpayer — While the left is apoplectic over the so-called “power grab” laws, several measures approved during the session do protect taxpayers. Many of the reform laws will limit bureaucratic power grabs and bring more oversight to executive branch policies that could be costly for business and average taxpayers alike.


  • The Lawsuit Happy Left — Will liberals ever learn? Doesn’t appear so. They sued over Act 10. They sued over redistricting. They sued over right-to-work. Their default position over the past eight-plus years it seems has been to file a lawsuit against any bill passed and signed by Republicans. Former Attorney General Brad Schimel used to joke that the way a bill became a law in Wisconsin during the Walker era was that the Republican-controlled Legislature passed it, Democrats quickly challenged it in a liberal Madison court where it was struck down, ultimately to be ruled constitutional by higher courts. Democrats and their liberal, grow-government allies have cost state taxpayers untold millions of dollars over the past eight years hoping to use activist courts to further their political agenda.
  •  Gov. Tony Evers — The Democrat lamented Friday’s ruling, calling it “all too predictable.” In a press release the governor said the decision is “based on a desired political outcome, not the plain meaning and text of the constitution.” As noted, the Wisconsin Constitution is crystal clear on the authority of the legislative branch. Evers and fellow liberals hoped to block legislation they didn’t like through a faulty interpretation of the law that didn’t hold water upon sober review. Sour grapes aside, Evers, his grow-government administration, and liberal policy defender Attorney General Josh Kaul do lose a great deal in this ruling. There is now a greater legislative check on potential abuses of the executive branch.
  • Supreme Court Minority – Again, the liberal justices on the state Supreme Court never cease to amaze. Long-time justices Shirley Abrahamson and Ann Walsh Bradley have been particularly consistent in their defense of the political left at the expense of the constitution. Friday’s ruling is just the latest example. Written by the court’s newest liberal addition, Justice Rebecca Dallet, the dissenting opinion does some amazing jurisprudence gymnastics to arrive at its core belief — that the extraordinary session “subverts the plain text of Article IV, Section 11 of the Wisconsin Constitution.” Spoiler Alert: As the majority opinion notes, the session did no such thing.

Wait! There’s more, from Wisconsin Public Radio:

The Wisconsin Supreme Court has ruled in favor of a conservative advocacy group in a case that will shift oversight of some school policies from the state schools superintendent to the governor.

The court ruled 4-2 in the case that began when Gov. Tony Evers was state schools superintendent and former Gov. Scott Walker was in office.

In the case, then-superintendent Evers argued he did not need to get executive approval for rules he wrote for the state Department of Public Instruction, despite a state law called the REINS Act, which requires state agencies to get approval from the governor’s office and state Department of Administration, which is controlled by the governor.

The Wisconsin Institute for Law and Liberty filed the lawsuit in 2017, arguing Evers, as superintendent, wasn’t following the law adopted that same year.

Evers argued the state schools superintendent is a publicly elected, rather than appointed, state officeholder with executive power, thereby allowing him to circumvent the REINS requirement.

The court rejected that argument.

The decision split along the court’s ideological lines, with conservatives writing the majority opinion.

“Article X, Section 1 vests supervision of public instruction, an executive function, in the (superintendent),” the opinion reads. “In contrast, when the (superintendent), through the (Department of Public Instruction), promulgates rules, the (superintendent) is exercising legislative power that comes not from the constitution but the legislature.”

Conservative Justice Rebecca Bradley wrote a consenting opinion with the majority, but noted an area of disagreement.

“I join the opinion except for those portions espousing the ostensible importance and necessity of the legislature’s delegation of power to the administrative state,” Bradley wrote. “The concentration of power within an administrative leviathan clashes with the constitutional allocation of power among the elected and accountable branches of government at the expense of individual liberty.”

Justice Shirley Abrahamson withdrew from the case. Liberal Justices Ann Walsh Bradley and Rebecca Dallet dissented, with Bradley writing the minority opinion. …

The Wisconsin Institute for Law and Liberty lauded the ruling Tuesday morning. The organization brought the case on behalf of a public school teacher, Kristi Koschkee, who said she was “thrilled” by the decision.

“As a public school teacher and taxpayer, I am thrilled that the Wisconsin Supreme Court has recognized that the Superintendent of Public Instruction must follow the law and allowed for greater oversight on the Department of Public Instruction, an agency that is notoriously hostile to K-12 education reform,” Koschkee said in a prepared statement.

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