LWV Sues to Prevent Enforcement of Bills Passed During Unconstitutional “Extraordinary Session” of the Legislature

MADISON—Today the League of Women Voters of Wisconsin, along with five other plaintiffs,

filed a lawsuit in Dane County Circuit Court challenging the enforceability of the legislation

adopted during an “extraordinary session” of the Wisconsin Legislature last month. The lawsuit

asks the court to prevent the Wisconsin Election Commission and Governor Tony Evers from

enforcing or implementing any of the provisions of the newly enacted laws. The lawsuit

contends that because the Legislature unconstitutionally convened the December 2018

“extraordinary session,” all business conducted during the “extraordinary session” is void and

unenforceable.

“The people of Wisconsin expect their elected officials to represent their interests transparently,

and in a manner that respects the limits of the constitutional authority granted to them,” said

Erin Grunze, Executive Director of the League of Women Voters of Wisconsin? . “The

adoption of and attempts to implement the legislation passed during the “extraordinary session”

are unconstitutional and fundamentally undermine our democracy.”

The lawsuit was filed on behalf of three statewide civil rights organizations representing the

interests of thousands of Wisconsinites: the League of Women Voters of Wisconsin, Disability

Rights Wisconsin, and Black Leaders Organizing for Communities. The organizations were

joined by three Wisconsin residents, union laborer Guillermo Aceves, longtime natural resources

attorney and advocate Michael Cain, and former Wisconsin Assistant Attorney General John

Greene. The plaintiffs allege that the Legislature unconstitutionally convened an “extraordinary

session” during which it passed three bills that expand the Legislature’s powers at the expense of

the executive branch of government, thereby causing the plaintiffs irreparable harm.

1“We are urgently asking the court to prevent enforcement of the bills passed during the

‘extraordinary session’ to ensure the integrity of and to prevent limitations on voters’ ability to

participate in the state’s spring elections,” said Grunze. “One co-equal branch of government

should not be allowed to act outside its constitutional authority to the detriment of Wisconsin

taxpayers and voters.”

The Wisconsin State Constitution authorizes the Legislature to convene in only two ways: by

regular session or by special session called by the Governor. The Constitution does not authorize

the Legislature to convene an “extraordinary session” on its own initiative. The December 2018

“extraordinary session” was convened by the Legislature through a joint resolution, not by law or

special session as required by the Constitution. Therefore, the “extraordinary session” falls

outside both constitutionally sanctioned categories.

In response to filing the lawsuit, lead counsel Jeffrey A. Mandell said, “The text of the

Wisconsin Constitution is unambiguous. The Legislature does not have the authority to convene

itself in an ‘extraordinary session.’ Because the session was unconstitutional, all business

conducted during the ‘extraordinary session’ is illegal and, therefore, void. Fidelity to the

Constitution is a fundamental principle of law.”

“Provisions adopted during the ‘extraordinary session’ enshrine in statute dramatic changes to

Wisconsin’s Medicaid program, putting the state’s disabled community at risk and undermining

our ability to effectively carry out our federally designated protection and advocacy functions,”

added Kristin M. Kerschensteiner, Advocacy/Legal Services Director of Disability Rights

Wisconsin. “These sweeping changes will harm disabled individuals across the state, were

unlawfully adopted, and do not withstand scrutiny.”

“The changes to voting laws have an acutely harmful impact on minority communities who

voted early in significant numbers in the November 2018 election,” said Angela Lang, Executive

Director of Black Leaders Organizing for Communities (BLOC). “The Legislature doubled down

on a strategy that a federal court already declared unconstitutional. That’s not how democracy is

supposed to work.”

Guillermo Aceves, a private citizen and plaintiff in the lawsuit, commented, “As a proud

member of the International Union of Operating Engineers Local 139, I know first-hand how

important it is to make sure our roads and bridges are built to the highest standards, and that the

workers building those roads and bridges are fairly compensated for their good work. An

unconstitutional legislative session isn’t the place to make changes to the law that could affect

our state’s infrastructure safety.”

Press Release - LWVWI Sues to Prevent Enforcement of Bills Passed During Unconstitutional “Extraordinary Session” of the Legislature?

2Michael Cain, a private citizen who joined the lawsuit, noted, “The bills were adopted with such

haste that there was not a meaningful opportunity for public input or for the legislators to assess

the real impacts. As an example, the provisions dealing with agency guidance documents will

result in the waste of millions of dollars of taxpayer funds and will not serve the needs of the

public, applicants, or the agencies charged with efficient administration of State laws. As a

taxpayer, a sportsman, and a lawyer who spent my entire career advocating for the protection of

Wisconsin’s natural resources, I believe these provisions undermine longstanding priorities

enshrined in Wisconsin law.”

John Greene, a private citizen, former Wisconsin Assistant Attorney General, and

taxpayer-plaintiff, warned, “Provisions adopted by the Legislature during the ‘extraordinary

session’ will undermine the Attorney General’s ability to represent the people of Wisconsin,

protect consumers, and safeguard the environment. These laws will make litigation in which the

State is involved more expensive and complex, and could reduce the amount of money the State

receives from settlements. Taxpayers, the environment, and victims of consumer fraud should

not be penalized by this unconstitutional legislation.”

“This lawsuit is not about partisan politics,” stated Protect Democracy’s Deana El-Mallawany,

who is co-counsel in the case. “It is about upholding the rule of law and requiring the legislature

to act within the constitutional constraints on its authority. Elected officials are bound by the

constitution. They cannot simply ignore its limitations. When they do, the people of Wisconsin

and our democracy suffer.”

“Our clients are requesting that the courts intervene to prevent a co-equal branch of government

exceeding the constitutional limits on its powers. All laws passed during the extraordinary

session are unenforceable because the ‘extraordinary session’ itself was unlawful under the plain

language of the Wisconsin Constitution,” stated co-counsel Larry Robbins of Robbins Russell.

The complaint can be found? ? here? .

The legal memorandum seeking a temporary injunction can be found? ? here? .

Jeffrey A. Mandell is a partner at the law firm ? Stafford Rosenbaum LLP, which has offices in

Madison, WI and Milwaukee, WI. Mr. Mandell is a litigator with broad trial and appellate

experience in federal and state courts, including the Wisconsin Supreme Court and the U.S.

Supreme Court.

Press Release - LWVWI Sues to Prevent Enforcement of Bills Passed During Unconstitutional “Extraordinary Session” of the Legislature?

3Lawrence Robbins is a trial and appellate litigator who handles both criminal and complex civil

litigation. Mr. Robbins has extensive experience in state and federal courts across the country,

and has argued eighteen cases in the U.S. Supreme Court. He is a partner at the law firm ? Robbins

Russell? Englert Orseck Untereiner & Sauber LLP, which has an office in Washington, DC.

Protect Democracy is a nonpartisan nonprofit dedicated to preventing American democracy from

declining into a more authoritarian form of government.

Press inquiries can be directed to:

Erin Grunze at [email protected] or Jeff Mandell at ? [email protected]

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The League of Women Voters of Wisconsin is a nonpartisan political organization that advocates for

informed and active participation in government. There are 20 local Leagues in Wisconsin. More

information at lwvwi.org.