On March 21, Dane County Circuit Court Judge Richard Niess issued an order granting a temporary injunction prohibiting the enforcement of laws passed in the 2018 Extraordinary Session. Provisions blocked by the order include limits on the attorney general’s authority to withdraw from or settle certain cases, the legislature’s ability to intervene in certain lawsuits, agency guidance documents transparency requirements, increased legislative oversight of agency rulemaking, and 82 agency appointments.
The plaintiffs in the case, League of Women Voters v. Knudson, argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).
The Legislature intervened as a defendant and argues that convening an extraordinary session does not violate the Wisconsin Constitution because the rules for the 2017-18 session prescribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. The Legislature met as provided by law under the Constitution and Wis. Stat. § 13.02(3).
In his order, Judge Niess agreed with the plaintiffs’ argument that non-prescheduled floorperiods in the joint resolutions are not “allowed by law” according to the Constitution because resolutions are not law. The judge stated that temporary injunction is necessary because the plaintiffs are likely to succeed with this argument, enforcement of the extraordinary session legislation would result in “substantial changes to Wisconsin government,” and failure to enjoin the enforcement of unconstitutional laws would be an irreparable harm to the state.
The judge also denied the Legislature’s motion to dismiss the case and its alternative motion to stay the temporary injunction pending appeal.
Immediately following the enjoinment of the extraordinary session laws, Gov. Tony Evers directed Attorney General Josh Kaul to withdraw Wisconsin from the multistate lawsuit seeking to declare the Affordable Care Act unconstitutional. Act 369, now temporarily unenforceable under the court order, had required approval of the legislature before the attorney general could withdraw from the lawsuit. Kaul subsequently filed a motion to withdraw Wisconsin from Texas v. United States.
On March 22, the Legislature filed an emergency motion in the Court of Appeals District III to stay the injunction. The Legislature argues they are exceedingly likely to prevail on the merits on appeal, and a stay will prevent irreparable harm caused by blocking the extraordinary session laws.