The Wisconsin Supreme Court issued an order Tuesday reinstating 82 appointments by former Governor Scott Walker (R) and confirmed by the state Senate during an extraordinary session last December.
“It is further ordered that the 82 nominees/appointees are hereby restored, as of the date of this order, to the positions they were appointed, and they may exercise all of the rights and duties of those positions as they did prior to the Dane County circuit court’s March 21, 2019 injunction and order, pending this court’s final decision in this case,” the Supreme Court said. “The letter of March 22, 2019 from Governor Evers to Jeff Renk, Chief Clerk of the Wisconsin Senate, was of no legal effect and will remain so for the duration of this appeal.”
The order was written by the four conservative Justices of the Wisconsin Supreme Court: Chief Justice Patience (Pat) Roggensack, Justice Dan Kelley, Justice Rebecca Bradley and Justice Annette Ziegler.
Governor Tony Evers (D) rescinded the appointments after a Dane County judge ruled in League of Women Voters v. Tony Evers that actions taken during the extraordinary session, a ruling that was stayed by an Appeals Court after the circuit court denied a request by the legislature. Evers’ action came after the stay was issued, escalating a state constitutional crisis sparked by Evers and his allies refusing to accept the legality of the actions taken by the legislature after the November elections. The Supreme Court has taken up two of the lawsuits, and Republicans hope that the court recognizes the right of the legislature as an independent governing body to set its own schedule and agenda as it always has.
In the order reinstating the 82 appointments, the court said the circuit court made four “errors in law” that led to exercising discretion in regards to whether the stay issued should include the appointments approved by the legislature.
“Our review of the circuit court’s order in this case denying the Legislature’s request for a stay of the injunction leads us to conclude, as did the court of appeals, that the circuit court erroneously exercised its discretion,” the Supreme Court’s order said.
The Supreme Court explained that the circuit court was in error in assuming that the legislature was unlikely to succeed with its appeal.
“As noted by the court of appeals, the circuit court never recognized that success on the merits in this case turned on questions of law that would be reviewed de novo by the appellate courts,” the Supreme Court said. “The circuit court did not acknowledge that its determination was the first word, not the last word, on the interpretation of the relevant constitutional provisions and statutes.”
Justice Ann Walsh Bradley wrote a dissenting opinion for the liberal minority on the court, including Justices Shirley Abrahamson and Rebecca Dallet, accusing the conservative majority of an order that “substantively alters existing law.”
“Reliance on the appellate standard of review is puzzling, given that de novo review does not make the merits of a party’s arguments any stronger,” Bradley wrote. “Nevertheless, the majority appears to view de novo review as tantamount to meeting the ‘mere possibility’ standard.”
Ironically, Abrahamson is a lame duck herself. Last fall she announced her retirement at the end of this term and she will be replaced by conservative Justice-elect Brian Hagedorn who was elected on April 2.
The order by the majority reinstating the 82 appointments was praised by state Senate Majority Leader Scott Fitzgerald (R-Juneau).
“Governor Evers’ actions targeted public servants who are dedicated to working on behalf of Wisconsin citizens,” Fitzgerald said in a statement on Tuesday. “I’m glad to see that the Supreme Court has ended this unnecessary constitutional crisis and enforced the return of these individuals to their rightful positions.”
The order comes on the same day former Assembly Speaker Tom Loftus, a Democrat, defended in an op-ed for the Wisconsin State Journal the legislature’s right to act during an extraordinary session. Loftus pointed out that the practice of extraordinary sessions began when he was Speaker.
“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,” Loftus wrote. “They couldn’t be called special sessions — that was solely the governor’s power. So, ‘extraordinary.’ Why not?”
Loftus points out that the legislature is continuously “in session,” according to a prior Wisconsin Supreme Court ruling, and that the days the legislature actually meets are known as “session days.”
“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,” Loftus wrote.
Loftus isn’t the only former legislator to defend extraordinary sessions. In an amicus brief prepared by the Wisconsin Institute for Law & Liberty, former Lt. Governor Margaret Farrow, Speaker of the Assembly Scott Jensen, Senators Terry Moulton and Leah Vukmir, and Representatives Garey Bies, Adam Jarchow, and Jesse Kremer, all defended the legislature’s right to set it’s own calendar and call itself into session.
“The Dane County Circuit Court decision would make the legislature a less than co-equal branch of government, elevating the other branches of government above it,” Jensen said at the time. “It would take power away from the people and be in direct conflict to what our founders intended when they gave the legislative branch the ability to determine its own rules.”