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The Democratic Party of Wisconsin v. Vos

United States District Court, W.D. Wisconsin

September 30, 2019

THE DEMOCRATIC PARTY OF WISCONSIN, COLLEEN ROBSON, ALEXIA SABOR, PETER KLITZKE, DENIS HOSTETTLER, JR., DENNIS D. DEGENHARDT, MARCIA STEELE, NANCY STENCIL, and LINDSAY DORFF, Plaintiffs,
v.
ROBIN VOS, SCOTT L. FITZGERALD, ALBERTA DARLING, JOHN NYGREN, ROGER ROTH, JOAN BALLWEG, STEPHEN L. NASS, JOEL BRENNAN, TONY EVERS, and JOSHUA L. KAUL, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON, DISTRICT JUDGE

         This is another legal challenge to 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370. These are the so-called “lame-duck” laws, passed by the Republican-controlled legislature after the November 2018 election, while Republican Scott Walker was still governor. The lame-duck laws restrict the authority of the executive branch in numerous ways, such as by limiting the governor’s control over the Wisconsin Economic Development Corporation and by prohibiting the attorney general from settling some lawsuits without legislative approval.

         The Democratic Party of Wisconsin and several of its members challenge the constitutionality of the lame-duck laws. Plaintiffs allege that the legislature acted with partisan intent to limit the power the newly elected governor, Tony Evers, and attorney general, Josh Kaul, both Democrats. Plaintiffs say that the lame-duck laws effectively changed the results of the election, Dkt. 64, at 5, and as a result violate the First Amendment, the Equal Protection Clause, and the Guarantee Clause of the United States Constitution.

         Two motions are before the court: (1) plaintiffs’ motion to preliminarily enjoin Acts 369 and 370, Dkt. 2; and (2) a motion to dismiss filed by defendants Joan Ballweg, Alberta Darling, Scott L. Fitzgerald, Stephen L. Nass, John Nygren, Roger Roth, and Robin Vos, all of whom are Wisconsin legislators, Dkt. 34. (The court will refer to these individuals as “the legislative defendants” for the remainder of the opinion.) Defendant Evers and defendant Joel Brennan (Secretary of the Wisconsin Department of Administration) have filed briefs in support of the motion for a preliminary injunction and in opposition to the motion to dismiss. Defendant Kaul has not taken a position on either motion.

         There are many reasons to criticize the lame-duck laws. The legislative defendants don’t dispute that the lame-duck laws were intended to limit the power of the newly Democratic executive officers and to consolidate power in the Republican-controlled legislature. But the role of a federal court is not to second-guess the wisdom of state legislation, or to decide how the state should allocate the power among the branches of its government. The court will deny the motion for a preliminary injunction and grant the motion to dismiss, because the plaintiffs are not entitled to any remedy under the United States Constitution. Any judicial remedy for the harms alleged in this case must come from the courts of Wisconsin. See, e.g., SIEU, Local 1 v. Vos, 2019AP622 (Wis. Sup. Ct. reviewed accepted April 19, 2019) (case before state supreme court alleging that Acts 369 and 370 violate Wisconsin Constitution’s separation of powers doctrine).

         ANALYSIS

         A. Overview of the claims and defenses

          Enacted in December 2018, 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370 made dozens of changes to state law. Plaintiffs cite the following changes in their complaint:

• prohibiting the governor from renominating potential appointees who were already rejected by the legislature, 2017 Wis. Act 369, § 4;
• requiring the Department of Veterans Affairs to notify the legislature of certain transfers of funds, id. § 23;
• requiring legislative approval for the attorney general to withdraw from a lawsuit filed by state government, id. § 26;
• requiring legislative approval before the attorney general may settle lawsuits for injunctive relief, id. § 30;
• giving the legislature authority to suspend an administrative rule “multiple times, ” id. § 64;
• adding legislative appointees to the Wisconsin Economic Development Corporation, id., § 82m;
• codifying administrative rules related to voter identification requirements, id. § 91;
• removing the governor’s ability to appoint the chief executive officer of the Wisconsin Economic Development Corporation, id. § 102(2v);
• codifying administrative rules requiring drug testing for individuals applying for certain kinds of public assistance, 2017 Wis. Act 370, § 17;
• placing new conditions on funding for the Department of Health Services, id. §§ 10(6), 44(3)(b).

         Plaintiffs challenge Acts 369 and 370 on three grounds. First, plaintiffs say that the Acts violate the Guarantee Clause, which states that “[t]he United States shall guarantee to every State in this Union a ...


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