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Wisconsin State Journal: New lawsuit from unions contends GOP lame-duck laws violate Constitution's separation of powers

This story was originally published in the Wisconsin State Journal.

A group of unions on Monday filed a fourth legal challenge to controversial laws passed by Republican leaders just before Gov. Tony Evers took office — this one contending they violate the state constitution’s separation of powers between the legislative and executive branches.

The new lawsuit filed Monday in Dane County Circuit Court expands the legal fronts on which the laws are being defended in court, and likely will result in taxpayers paying more to do so.

The laws curtailed early voting and barred Evers and new Democratic Attorney General Josh Kaul from inheriting certain powers given to previous governors and attorneys general. GOP legislators and Republican Gov. Scott Walker passed the laws in a lame-duck session in December just before Walker left office.

The plaintiffs include Service Employees International Union, Milwaukee Area Service and Hospitality Workers, American Federation of Teachers and Wisconsin Federation of Nurses and Health Professionals. Nine individual plaintiffs also are listed, including state Sen. Janet Bewley, D-Mason.

The suit contends the laws violate the state constitution by stripping powers from the executive branch. It asks a judge to bar state officials from implementing or enforcing the challenged provisions.

The laws are “a clear attempt by one branch, the Legislature, upset by an electoral outcome affecting another branch, to undo the separation of powers” in the constitution, according to the complaint.

The complaint also argues the laws — by giving new authority to legislative committees to halt the state’s role in litigation or to suspend state agency rules indefinitely — violate state constitutional requirements for legislative quorums.

Among the defendants named in the suit are Assembly Speaker Robin Vos, R-Rochester; Assembly Majority Leader Jim Steineke, R-Kaukauna; Senate Majority Leader Scott Fitzgerald, R-Juneau; and Senate President Roger Roth, R-Appleton. The lawmakers did not respond to requests for comment Monday.

Evers and Kaul, despite having been sharply critical of the laws being challenged, are named among the defendants in the suit in their official capacities as governor and attorney general.

Evers spokeswoman Melissa Baldauff said in a statement that “we’ve said repeatedly that the lame-duck session was a hasty and cynical attempt by Republicans to override the will of the people, and that the governor expected legal challenges.”

“He will be consulting with legal counsel to determine an appropriate course of action,” Baldauff said.

Kaul’s office did not immediately respond to a request for comment.

A key question is whether Kaul will defend the state’s position in the suit. Kaul has recused himself from the other two lawsuits, citing conflicts.

One of those lawsuits, filed last month by the League of Women Voters of Wisconsin and other groups, contends the so-called “extraordinary session” held to pass the laws was unconstitutional.

The lawsuit prompted Evers to hire private attorneys to represent him at a cost to taxpayers of as much as $50,000. Republican legislative leaders have retained Misha Tseytlin, the former state solicitor general, as their attorney in that case.

It’s unclear whether GOP lawmakers will hire attorneys, at taxpayer expense, to defend themselves in the new lawsuit.

Liberal advocacy group One Wisconsin Now is bringing the other lawsuit, which seeks to overturn the provisions of the lame-duck law that curtailed access to early voting. A federal judge last month blocked those changes as part of a previous injunction against previous laws limiting early voting.

In addition, a state lawmaker, Rep. Jimmy Anderson, has asked Dane County District Attorney Ismael Ozanne to file suit against state Assembly leaders and void the votes that passed the laws. Ozanne has not said if he’ll act on that request.

Anderson, who is paralyzed from the chest down and requires advance notice of meetings as an accommodation of his health and logistical issues, contends Assembly Republican leaders broke state open-meetings law by not telling him when early-morning votes on the laws would be held.