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Republicans ask to stay order blocking lame-duck laws

March 23, 2019
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Wisconsin Gov. Tony Evers answered reporters questions at the State Capitol in Madison, Wisc., Thursday, March 21, 2019, after a Dane County judge has blocked the lame duck laws that Republicans passed in December to limit the power of the governor and attorney general. (Steve Apps/Wisconsin State Journal via AP)
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Wisconsin Gov. Tony Evers answered reporters questions at the State Capitol in Madison, Wisc., Thursday, March 21, 2019, after a Dane County judge has blocked the lame duck laws that Republicans passed in December to limit the power of the governor and attorney general. (Steve Apps/Wisconsin State Journal via AP)

MADISON, Wis. (AP) — Wisconsin Republicans asked an appeals court Friday to immediately reinstate GOP-backed laws limiting the powers of Democratic Gov. Tony Evers and Attorney General Josh Kaul, sparking a flurry of legal maneuvering as both sides jockeyed for position before the court makes a decision.

Dane County Circuit Judge Richard Niess issued an injunction Thursday blocking the laws, which GOP legislators quickly approved in December before Evers replaced Republican Gov. Scott Walker. On Friday, an attorney for the Republican lawmakers asked the 3rd District Court of Appeals for an immediate stay blocking Niess’ order and reinstating the statutes.

The court gave everyone involved until 4 p.m. Monday to file briefs, ensuring no decision will come until at least then.

The Republicans’ attorney, Misha Tseytlin, told the appellate court in a filing Friday morning that Niess’ injunction was already causing confusion for military and overseas voters, noting a state Supreme Court election is only days away.

Tseytlin added that Neiss’ ruling jeopardizes the validity of thousands of other laws passed during so-called extraordinary sessions, which are unscheduled floor periods convened by majority party leaders.

He also questioned whether scores of Walker’s appointees still have jobs. Lawmakers confirmed 82 of Walker’s appointees during the December session, ensuring Evers couldn’t remove them when he took office.

Empowered by Niess’ ruling, the governor rescinded the appointments late Friday afternoon. His spokeswoman, Melissa Baldauff, said the positions are now vacant. Some of the higher-profile appointees included two University of Wisconsin System regents and state Public Service Commission Chairwoman Ellen Nowak.

Baldauff said the governor will fill the spots as quickly as possible to minimize disruption. Senate Majority Leader Scott Fitzgerald issued a statement saying he feels the appointees were confirmed legally and called Evers’ move “irresponsible.”

The laws approved during the December lame-duck legislative session prohibit Evers from withdrawing the state from lawsuits without legislative approval. The move was designed to prevent him from pulling Wisconsin out of a multistate challenge to the Affordable Care Act, but Evers quickly started the process Thursday following Niess’ order.

The laws also require Kaul to seek legislative approval before settling any case and to deposit settlement winnings in the state general fund rather than in state Department of Justice accounts. The laws also rework voting regulations, restricting early in-person voting to the two weeks preceding an election and loosening requirements for military and overseas voters. Their witnesses no longer have to be U.S. citizens, and they can use email to receive and transmit ballots.

A coalition of liberal-leaning groups led by the League of Women Voters filed a lawsuit challenging the legislation in January. The groups argued that the Legislature can’t meet unless the time is specified in a law passed every two years or the governor calls it into session. Extraordinary sessions aren’t scheduled as part of that law. The majority party calls them when it sees fit.

Niess agreed with the coalition Thursday, saying there was no statutory basis for extraordinary sessions.

Hours after Niess issued the injunction, Evers ordered Kaul to move to withdraw Wisconsin from the ACA lawsuit. Evers didn’t immediately make any other moves with his restored powers, saying he needed time to digest the injunction.

The governor and the coalition sent letters to the appellate court Friday asking to be heard before it makes a decision on a stay. Evers’ attorney, Tamara Packard, insisted Tseytlin was “grossly misstating” the injunction’s effects.

Both Evers and the coaltion argued the case belongs in the 4th District Court of Appeals. The judges on that court include Gary Sherman, a former Democratic legislator; JoAnne Kloppenburg, a liberal-leaning former state Supreme Court candidate; and Brian Blanchard, a former Democratic prosecutor.

In another twist Friday, Kaul reversed himself and now wants to get into the lawsuit.

The coalition has technically named Evers as a defendant. But Kaul said in January he wouldn’t defend the governor, explaining would face a conflict of interest since the laws affect the state Department of Justice’s authority.

But Kaul sent a letter to the 3rd District Court of Appeals on Friday saying that he now wants to be heard ahead of any stay decision. The laws’ impact on DOJ gives him a “unique perspective” on the facts, he said, and statutes allow the attorney general to be heard whenever a law is found unconstitutional.

Kaul spokeswoman Gillian Drummond said he feels he can’t represent others in the case because the laws affect DOJ but he can represent his own agency without any conflict.

The court issued an order late Friday afternoon allowing Kaul to participate.

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Follow Todd Richmond on Twitter at https://twitter.com/trichmond1

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