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Conservative and liberal justices question legislative Republicans on stripping power from attorney general

Patrick Marley   | Milwaukee Journal Sentinel

MADISON - Justices on both sides of the state Supreme Court's ideological spectrum on Monday questioned how much power Republican lawmakers could take from the Democratic attorney general.  

"You can’t take everything away from the attorney general. There’s got to be something that remains," said Chief Justice Patience Roggensack, who is part of the 5-2 conservative majority on the court.  

She made the statement early on during nearly two and a half hours of arguments over lame-duck laws Republicans approved late last year to limit the authority of the state's incoming Democratic leaders, Gov. Tony Evers and Attorney General Josh Kaul. 

The justices allotted more than twice the usual amount of time for arguments because of the significance of the case and the number of parties involved.

Courts so far have largely sided with Republicans in a string of challenges to the lame-duck laws, but Democrats hope to persuade conservatives on the high court to roll back some of the restrictions that have been placed on Evers and Kaul. 

Democrats got some signs they liked Monday from conservative justices, but they still face substantial challenges in getting them to side with them. In June, the justices reversed a Dane County judge and ordered most of the lame-duck laws to stay in place while they consider the case.  

In December, just after Evers and Kaul won their races, Republicans who control the Legislature passed a set of laws aimed at chipping into their power in numerous ways. GOP Gov. Scott Walker signed the laws just before turning over his office to Evers.

The laws require a committee of legislators, rather than the attorney general, to sign off on some court settlements. They give lawmakers more power to block changes to public benefits programs. They require the Evers administration to rewrite thousands of government documents and websites. And they give lawmakers the ability to more easily block rules written by the Evers administration and intervene in lawsuits challenging state laws.

In February, arms of the Service Employees International Union and other labor organizations sued over the lame-duck laws. They argued they violate the state constitution's separation-of-powers doctrine, which delineates what authority each branch of government has. 

A Dane County judge issued an initial ruling in favor of the unions in March. But in a 4-3 ruling in June the Supreme Court took over the case and reinstated most of the lame-duck laws for at least the time being. 

Evers and Kaul have sided with the unions in the case. They contend the Legislature has intruded on the executive branch's primary duty of running the government day to day. 

The attorney general historically has overseen litigation. Kaul, Evers and the unions argued the Legislature can't require the attorney general to get approval from the Legislature's budget committee to settle court cases. 

Misha Tseytlin, an attorney for Republican lawmakers, said the Legislature can set such a requirement because the state constitution leaves it to lawmakers to determine what powers the attorney general has. 

Conservative Justice Daniel Kelly agreed the Legislature "can consign (the attorney general) to twiddling his thumbs all day long." But he questioned whether the Legislature could take on the attorney general's responsibilities, rather than giving them to officials in the executive branch.

Tseytlin said the lame-duck laws gave legislators a say in how litigation is conducted. But liberal Justice Rebecca Dallet contended lawmakers had done far more than that and questioned their power to do so. 

"What you’re saying is not just you can intervene (in cases) but you can grind to a complete halt any kind of litigation that the attorney general is conducting, period," she said. "So the buck would stop with the Legislature. That’s not a seat at the table. ... That’s power to enforce the law. Where did it come from? How did you get it?"

Tseytlin hit a nerve with one conservative justice by arguing the attorney general was not strictly part of the executive branch, but rather held "hybrid" powers that were functions of the executive and legislative branches. That makes the attorney general part of a fourth branch of government — the administrative branch — Tseytlin said. 

Conservative Justice Rebecca Bradley wasn't buying it.

"We’ve never recognized a fourth branch of government," she told Tseytlin. 

In appearing before the justices for the first time, the attorney general made the same point. 

"As all of American history has shown, there are three branches of government," Kaul said. 

The issue of settlements has proven messy in recent months. Kaul and lawmakers have not been able to settle cases because they can't agree on the process they should use. 

Kaul has said legislators on the budget committee must sign nondisclosure agreements to get confidential information about cases. Lawmakers have refused to sign them, saying Kaul should trust that they will treat private information appropriately.  

More than a dozen cases have been held up because of the dispute.

Settlements are also at the heart of a lawsuit GOP lawmakers filed against Kaul in August. The legislators asked the state Supreme Court to take up the case directly instead of having it go through lower courts, but the justices haven't decided whether to take the case.

Also disputed in Monday's case were requirements that the administration hold a 21-day commenting period before adopting "guidance documents" that tell the public how it will implement or enforce state rules and laws. 

Evers and the unions argued the definition of "guidance documents" is so broad that it would apply to thousands of documents, including emails government workers send to Wisconsin residents about routine matters. That could cripple the ability of the executive branch to provide information to the public, they contended.

GOP lawmakers argued they have the right to determine how state agencies communicate with the public. 

A final ruling in the case is expected by summer.

Liberals have had few victories with other challenges to the lame-duck laws.

The state Supreme Court in June upheld the lame-duck laws when it ruled 4-3 that lawmakers had properly convened the legislative session they used to pass the lame-duck laws.

Last month, a federal judge tossed out a lawsuit over the laws brought by the state Democratic Party, ruling that challenges should be brought in state court.  

In one of the few successes liberals have had, a federal judge in January threw out limits on early voting included in the lame-duck laws. 

As it stands now, just two parts of the lame-duck laws have been sidelined — the one limiting early voting and another requiring the administration to take public comments on guidance documents that were produced before this spring. 

Since issuing its June ruling upholding the lame-duck laws in another case, the court's conservative majority has grown from 4-3 to 5-2. Liberal Justice Shirley Abrahamson did not seek re-election this year and voters chose Brian Hagedorn, a conservative, to replace her. 

Contact Patrick Marley at Follow him on Twitter at @patrickdmarley.


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