On Oct. 21, the Wisconsin Supreme Court held oral arguments in the second challenge in state courts to the laws passed in the 2018 extraordinary session (2017 Acts 368, 369, and 370).

The plaintiffs, Service Employees International Union, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers-Wisconsin, and Milwaukee Area Service and Hospitality Workers, allege that the laws passed in the 2018 extraordinary session are an unconstitutional violation of the separation of powers doctrine. The Wisconsin Supreme Court will review whether provisions, including increased legislative oversight of rulemaking, attorney general lawsuits, and agency appropriations, interfere with the governor’s and attorney general’s constitutional power and whether committee oversight without opportunity for a gubernatorial veto violates constitutional separation of powers.

At oral arguments, Justices asked questions regarding whether the attorney general’s authority lies in the executive or legislative branch of state government. Plaintiffs argued the attorney general is a part of the executive branch described in Wis. Const. Art. V § 4, which enforces the law.  The defendant Legislature argued Art. VI § 3 allows the Legislature to determine the powers and duties of the attorney general.

Justice Kelly noted that, if the attorney general was part of the executive branch, the attorney general would, potentially, be subordinate to the governor. In reality, the attorney general can take different positions and act outside the governor’s purview.

Chief Justice Roggensack pointed out a federal statute similar to Act 369 provisions requiring Legislative oversight of settlement agreements. The Chief Justice and others did note that the Legislature may be able to remove some but not all of the attorney general’s powers.

A significant portion of the argument also focused on bicameralism. Plaintiffs argued the provision of Act 369 allowing the Joint Committee for Review of Administrative (JCRAR) rules to suspend rules multiple times subverts the Wisconsin’s Constitution because JCRAR can stop rules, which have the force of law, without votes in both chambers of the Legislature.

This case is one of several challenging the 2018 extraordinary session laws. Read more about the extraordinary session litigation.