Supreme Court takes up lame duck

Justices question both sides on separation of powers

'Respect our vote' Capitol protest motion copy (Creative Commons 2.0)
'Respect our vote' Capitol protest motion copy (Creative Commons 2.0)

The State Supreme Court heard arguments Monday having to do with the December 2018 extraordinary session in which the Republican legislature passed laws taking away powers from incoming Democratic Gov. Tony Evers and Attorney General Josh Kaul.

In the case under appeal, Service Employees International Union (SEIU) Local 1 v. Robin Vos, the plaintiffs argued before Dane County Circuit Court Judge Frank Remington that the new laws passed in that lame-duck session violated the separation of powers in the Wisconsin Constitution. They also sought a temporary injunction so that the executive branch could continue to perform the duties limited by the new laws.

The Supreme Court, in taking the case, granted the defendants’ request to lift a temporary injunction issued by the circuit court, and also agreed to consider a motion to dismiss the entire lawsuit.

“Allegations that a statute violates the separation of powers are extremely important,” attorney Lester Pines, representing Evers, told the Court. 

Quoting George Orwell’s Animal Farm, Pines said, “The legislature’s position is there are three equal branches of government, but some are more equal than others.”

Pines was particularly concerned about the legislature inserting itself into the rule-making process by state agencies.

“We’ve got to look at what this statute does, and we’ve got to look at what employees of these agencies do on a daily basis,” he said, arguing that the Court should send the suit back to circuit court to uncover all the facts. Pines cited previous cases in which the Court refused to consider limits to its own powers without a thorough vetting of the facts.

“You didn’t do it to yourselves. You can’t do it to the governor,” Pines told the Court.

Who writes the rules?

The issues before the Supreme Court in the hearing on Monday included requirements that the attorney general obtain approval from a legislative joint committee before dismissing or settling lawsuits, as well as rules imposing legislative authority over “guidance documents” issued by the administrative agencies, and a provision authorizing a joint legislative committee to suspend an agency rule or regulation. 

All seven of the justices asked questions focusing on the proper role of the executive and legislative branches.

Justice Ann Walsh Bradley
Justice Ann Walsh Bradley

“Is it your position that the legislature represents the State of Wisconsin, as opposed to the attorney general representing the State of Wisconsin?” Justice Ann Walsh Bradley asked Misha Tseytlin, the attorney for the Republican legislative majority.

(Tseylin was arguing on behalf of Assembly Speaker Robin Vos, Assembly Majority Leader Jim Steineke, Senate President Roger Roth, and Senate Majority Leader Scott Fitzgerald.)

“That’s exactly what I was asking,” Justice Annette Ziegler chimed in.

Justice Annette Ziegler
Justice Annette Ziegler

“When the legislature intervenes and the governor or the attorney general is in the case, the voice of the state is divided,” Tseytlin replied.

“It’s a hybrid situation,” he said later, using a phrase he returned to frequently during the hearing.

How many branches of government?

Tseylin’s argument hinged on the idea that the attorney general is not part of the executive branch because the state constitution gives him an “administrative” as opposed to an “executive” role. Justice Walsh Bradley expressed skepticism about that distinction—and the idea that there might be a fourth, “administrative” branch of government defined by the state constitution.

“The foundation of your argument is, ‘Oh look at this constitution—Article 6 is entitled ‘administrative,’ You’re advancing that, because it is headed ‘administrative,’ the attorney general has no executive power.”

Walsh Bradley pointed out that the same clause also covers county executives, among other offices. “So your argument is because it comes under the heading ‘administrative,’ the chief executive officer is not executive.”

Matt Wessler, a Washington, DC attorney who joined from outside the state bar to argue on the executive branch’s side, told the court that the founders defined the attorney general, secretary of state and other offices as “subordinate executive officers.”

The legislature, he said, has the power to proscribe the attorney general’s powers by statute, but “what they can’t do is convert the executive’s authority into their own authority to enforce the law.”

Justice Daniel Kelly
Justice Daniel Kelly

Justice Daniel Kelly challenged the term “subordinate executive officer,” pointing out that the attorney general can take positions the governor doesn’t agree with. “If the governor can’t tell the attorney general what positions to take, he’s not subordinate,” Justice Kelly asserted.

“I think when the founders used the term ‘subordinate,’ they meant it falls within the executive branch,” Wessler said. Kelly seemed unsatisfied with that.

There was a lot of discussion of guidance documents issued by state agencies, which Pines insisted were an important part of the governor’s executive power. “The only branch of government that has the power to give advice is the executive branch,” Pines said.

“Clearly, the governor is in charge of the administrative agencies for the purpose of giving advice,” he added.

“Guidance documents are a hybrid situation,” said Tseytlin.

Justice Brian Hagedorn
Justice Brian Hagedorn

Justice Brian Hagedorn asked for the “most innocuous example of a guidance document.”

Tseytlin chose voter ID guidelines issued by the Department of Transportation.

Justice Walsh Bradley broke in to say that “stopping at stop signs” might be viewed as more innocuous.

Tseytlin waved that away, saying it was not an example of guidance.

‘Where do you fit in?’

Attorney General Josh Kaul speaks with reporters outside the Supreme Court (photo by Ruth Conniff)
AG Josh Kaul

After a short break, Attorney General Josh Kaul began his testimony, declaring that “the framers knew the separation of powers is absolutely essential . . .”

“Where do you fit?” Justice Ziegler interrupted. “Are you executive? Legislative? You’re not judicial …”

Kaul replied that his office is “exclusively executive,” along with county executives, district attorneys, sheriffs—all executive offices with responsibility to enforce the law.

Brian Hagedorn asked if “there are some unique situations where the legislature might have a stake” in intervening in lawsuits that involve the attorney general’s office.

Yes, Kaul answered, the two areas of that touch on legislative powers, he said, are the “power of the purse” and the legislature’s interest in passing laws.

“If we were to enter into a settlement agreement that required an appropriation, that could create a constitutional conflict,” he said. “But that’s not the case here.”

Wesler advised the court that other state supreme courts have held that the authority to enforce the law is “as core an executive power as it gets.”

“What you have here is a set of laws that are designed to breach the bright line” between who makes and who enforces the laws, he added.

He urged the court to “take seriously the potential consequences” of its decision.

The Court’s 5-2 conservative majority has been considered a friendly forum for the legislature’s Republican majority. But questions from conservative justices Ziegler, Rebecca Bradley, Kelly and Hagedorn raised concerns about the limits of legislative power. 

“Surely [the constitution] can’t mean the only person who can exercise executive power is the governor,” Hagedorn mused.

“Do you think the legislature could take the attorney general and reduce his power to only sit on the Board of Lands?” Kelly asked. 

“There’s no reason to decide that very extreme hypothetical here,” said Tseytlin.

Afterwards, Kaul said of the justices, “It was great to see how engaged they were. And I think you’ll get a decision that is consistent with the justices’ view as to what the constitution says.”

Ruth Conniff
Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine, and opened the Progressive’s office in Washington, DC, during the Clinton Administration, where she made her debut as a political pundit on CNN’s Capital Gang Sunday and Fox News. She moved to Oaxaca, Mexico, for a year in 2017, where she covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Donald Trump. Conniff is a frequent guest on All in with Chris Hayes on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, and other radio and television programs. In 2011, she did award-winning coverage of the uprising against Governor Scott Walker in Wisconsin. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. Conniff graduated from Yale University in 1990, where she ran track and edited the campus magazine The New Journal.

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