OFFICE OF THE CLERK

110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WI 53701-1688
TELEPHONE (608) 266-1880
FACSIMILE (608) 267-0640
Web Site: www.wicourts.gov

April 30, 2019
To:
Hon. Richard G. Niess
Circuit Court Judge Br. 9
215 S. Hamilton St., Rm. 5109
Madison, WI 53703
Carlo Esqueda
Clerk of Circuit Court
215 S. Hamilton St., Rm. 1000
Madison, WI 53703
Deana K. El-Mallawany/ Jessica Marsden
Benjamin Berwick/ Kristy Parker
Protect Democracy
2020 Pennsylvania Ave. N.W., #163
Washington, DC 20006-1811

Lawrence S. Robbins
Carolyn Forstein/ Wendy Liu
Robbins Russell
2000 K. Street N.W., 4th Fl.
Washington, DC 20006
Jeffrey A. Mandell/ Kurt Simatic
Stafford Rosenbaum LLP
P.O. Box 1784
Madison, WI 53701-1784
*Address list continues on Page 13

You are hereby notified that the Court has entered the following order:

No. 2019AP559

The League of Women Voters v. Tony Evers L.C.#2019CV84

Pending before this court is a motion by the intervening defendant-appellant, Wisconsin
Legislature (the Legislature), for temporary relief pending appeal in this matter.
In an order dated March 21, 2019, the Dane County circuit court granted the motion of
the plaintiffs-respondents, The League of Women Voters, et al. (the plaintiffs), for an injunction
and enjoined the enforcement of three Acts1 that the Legislature had passed during an

1

The three acts passed during the December 2018 "extraordinary session" and
subsequently signed by the Governor were 2017 Wisconsin Act 368, 2017 Wisconsin Act 369,
and 2017 Wisconsin Act 370. This order will refer to them collectively as "the three Acts."

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"extraordinary session"2 in December 2018. The circuit court's order also enjoined the
enforcement of the Senate confirmations of 82 appointees during the December 2018
"extraordinary session" and "vacated" those appointments. In the same order, the circuit court
also denied the Legislature's motion for a stay of the injunction pending the completion of
appellate review that is authorized as a matter of right pursuant to Wis. Stat. § 813.025(3).
The Legislature initiated the present appeal on March 22, 2019, in the court of appeals.
At the same time, the Legislature filed a motion in the court of appeals for "an emergency stay,"
asking that court to grant it, first, an immediate administrative (ex parte) stay, and second,
following the receipt of responses from the other parties, a stay pending the entirety of the
appeal. It is clear from the motion that the Legislature was seeking an order from the court of
appeals that would have stayed the effect of the circuit court's injunction with respect to both
enjoining the three Acts and "vacating" the appointments of 82 individuals whose appointments
by Governor Walker had been confirmed by the Senate during the December 2018
"extraordinary session." In other words, with respect to the appointments, the Legislature asked
the court of appeals to stay the effect of the circuit court's injunction, thereby returning those
individuals to their respective positions during the pendency of this appeal.
Within a few hours after the filing of the Legislature's motion for an emergency stay, the
defendant-respondent, Governor Tony Evers, the plaintiffs, and the Wisconsin Department of
Justice (DOJ) had asked the court of appeals to establish a briefing schedule that would allow
them to file responses before the court of appeals considered issuing any stay. Later in the
afternoon on March 22, 2019, the court of appeals issued an order that, inter alia, directed the
parties other than the Legislature to file responses to the Legislature's motion by 4:00 p.m. on
Monday, March 25, 2019.
Within a short time after the court of appeals issued that order, the Governor had a letter
hand-delivered to the Chief Clerk of the Wisconsin Senate. The letter consisted of the following
single sentence and a list of the 82 individuals whose appointments had been confirmed by the
Senate during the December 2018 "extraordinary session": "In light of yesterday's ruling in
League of Women Voters v. Knudson, et al., Dane County Case No. 19CV84,3 this letter is to
remove the following appointments from consideration for confirmation by the Wisconsin
Senate: . . . ."

2

We use the term "extraordinary session" to describe what the Legislature did in
December 2018 when it convened itself to conduct floor debate and votes because that is the
term used by the parties in their filings.
3

This was the short caption and case number for this matter when it was in the circuit
court. Defendant Dean Knudson was subsequently dismissed from the lawsuit. Thus, the short
caption has changed on appeal to The League of Women Voters v. Tony Evers, and it has been
assigned appellate case number 2019AP559.

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On March 27, 2019, following receipt of the responses to the Legislature's motion and a
reply memorandum filed by the Legislature, the court of appeals granted the Legislature's motion
for temporary relief pending appeal. It first addressed two preliminary matters. It noted that
some parties had conflated the plaintiffs' likelihood of success in the action with the Legislature's
likelihood of success on the appeal challenging the injunction. It clarified that its focus at this
point was on the latter and not on the merits of whether the circuit court had properly granted an
injunction. Second, it further stated that in deciding the Legislature's stay motion, its task was to
weigh the harms that might result from denying a stay pending appeal in the event that the
injunction was ultimately reversed against the harms that might result from imposing a stay if the
injunction was ultimately affirmed. That task did not include weighing the harms or benefits that
allegedly flowed from the three Acts.
The court of appeals then turned to reviewing the circuit court's application of the factors
for considering temporary relief pending appeal that were set forth in State v. Gudenschwager,
191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995) (citing Leggett v. Leggett, 134 Wis. 2d 384, 385,
396 N.W.2d 787 (Ct. App. 1986)).4 With respect to the first factor of the Legislature's likelihood
of success on appeal of the injunction, the court of appeals did not decide whether the
presumption of constitutionality which usually attaches to regularly enacted statutes should
impact its consideration of that factor. It determined that it did not need to do so because the
issue presented in the appeal, whether the Legislature had validly convened in December 2018,
was a legal question of first impression that would be subject to de novo review on appeal. The
court of appeals indicated that the circuit court had erred by failing to take these considerations
into account when it concluded that the Legislature had no likelihood of success on the merits.
With respect to the second factor, whether there would be irreparable injury if no stay pending
appeal were granted, the court of appeals stated that the circuit court again had erred in
evaluating the alleged irreparable injury by holding a view that there was no chance its legal
conclusion would be overturned and by failing to consider the harm that could result from
enjoining acts and confirmations of appointments that may ultimately be found valid (which
would then require undoing acts done in reliance on the injunction in the intervening period).
Noting that not all of the alleged harms were significant, the court of appeals did find significant
the harm that the people of the state would suffer from having statutes enacted by their elected
representatives declared unenforceable. Ultimately, the court of appeals concluded that when the
balancing test was properly performed, the first two Gudenschwager factors weighed in favor of
granting the stay and those factors outweighed any potential harm under the third and fourth
factors. The court of appeals therefore ordered "that the temporary injunction issued by the
circuit court on March 21, 2019, is hereby stayed pending the Legislature's appeal."
4

A stay or other temporary relief pending appeal is appropriate where the moving party:
(1) makes a strong showing that it is likely to succeed on the merits of the appeal;
(2) shows that, unless a stay is granted, it will suffer irreparable injury;
(3) shows that no substantial harm will come to other interested parties; and
(4) shows that a stay will do no harm to the public interest.

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The parties, however, continued to dispute the effect of the "stay" granted by the court of
appeals, especially with respect to the status of the 82 appointees. The Legislature took the
position that the "stay" restored those appointees to the positions they had held prior to the circuit
court's injunction. Governor Evers took the position that the court of appeals' stay was
prospective only and that his letter had withdrawn those appointments at a time while the
injunction was in effect so those appointees no longer had any claim to their positions. The
Governor advised the various state agencies, commissions, boards, etc. that those appointees
should not be allowed to return to their positions or have access to the physical offices some of
them had occupied prior to the injunction.5
The Legislature therefore filed a new motion with the court of appeals, asking that court
to "enforce" its March 27, 2019 "stay." In an order dated April 9, 2019, the court of appeals
denied the Legislature's motion. It noted that its March 27, 2019 order had been silent as to the
status of the appointees and that it had not expressly ordered the Governor to allow them to
continue in their positions. The court of appeals stated that it had been the circuit court's action
in denying the stay, not the Governor's subsequent action in withdrawing the nominations, that
had been the subject of its review. From that premise, it concluded that the only way its
March 27, 2019 order could have restored the appointees to their positions would have been by
operation of law as an automatic effect of the stay. It then pointed to the general rule of law that
a stay "operates upon the judicial proceeding itself . . . by halting or postponing some portion of
the proceeding, or by temporarily divesting an order of enforceability." Niken v. Holder, 556
U.S. 418, 428 (2009). It further stated that it was not aware of any legal authority for the
proposition that an action taken while an injunction was in effect is invalidated by an appellate
court's subsequent stay. In other words, it believed that its March 27, 2019 order could have
only prospective effect and could not affect the Governor's ability to withdraw the nominations
pursuant to the circuit court's injunction while that injunction was still in effect. On the other
hand, however, the court of appeals acknowledged that an appellate court reviewing the merits of
the injunction would still have the power to determine that the Governor's withdrawal of the
nominations had been void if it ultimately concluded that those nominations had been validly
confirmed during the December 2018 "extraordinary session."
On April 10, 2019, the Legislature filed in this court a document entitled "Emergency
Petition for Original Action, Supervisory Writ, Writ of Mandamus, and/or Immediate Temporary
Relief of Intervening Defendant-Appellant-Petitioner Wisconsin Legislature." The document
was filed bearing the case caption and case number for the above-referenced appeal.

5

Governor Evers has reappointed a majority of the 82 appointees to the positions to
which they had been appointed by Governor Walker. He has not, however, reappointed the
appointees to certain significant positions, including positions on the Public Service Commission
(PSC), the Labor and Industry Review Commission (LIRC), and the University of Wisconsin
Board of Regents.

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By order dated April 11, 2019, this court separated the two portions of the Legislature's
April 10, 2019 filing. The petition for original action and for a supervisory writ or writ of
mandamus was assigned to a new case, Wisconsin Legislature v. Evers, No. 2019AP673-OA.
That petition was subsequently denied by this court's April 17, 2019 order. The portion of the
April 10, 2019 filing that sought immediate temporary relief was treated as a motion to this court
in this appeal.6 The court's April 11, 2019 order directed the other parties to the appeal to file
responses to the Legislature's motion by 3:00 p.m. on Monday, April 15, 2019. On that date the
court received responses from the plaintiffs and from Governor Evers. In addition, the court
granted the motion of Wisconsin Manufacturers and Commerce (WMC) for leave to file a nonparty brief amicus curiae in support of the Legislature's motion and accepted for filing WMC's
accompanying non-party brief. The court has now considered the Legislature's motion for
immediate temporary relief pending appeal, the responses to that motion, and the non-party brief
in support of that motion.
The Legislature's motion for temporary relief asks this court to "order immediate
reinstatement of the appointees." It argues that the uncertain status of the appointees is creating
an ongoing and intolerable harm to its interest and to the public interest because the boards and
commissions to which the Governor has refused to reappoint the prior appointees, including the
PSC, the LIRC, and the Board of Regents, are being hindered in performing their duties. It also
points to the impact that the injunction and the Governor's withdrawal of the nominations is
having on the individual appointees and their assistants, who have had their salaries and benefits
terminated. In addition, the Legislature asserts that if the Governor were to appoint new
individuals to those positions, there would be more confusion because two people would be
claiming to be the true appointee and because the court of appeals acknowledged that the original
appointees may ultimately be restored after a review of the merits of the injunction. Further, the
Legislature argues that it was the circuit court's injunction, not the Governor's subsequent letter
to the Chief Clerk of the Senate, which had vacated the 82 appointments. The Legislature
contends that since the injunction has now been stayed by the court of appeals' March 27, 2019
order, those 82 appointees are now able once more to enforce the statutory rights to their
appointed positions that they gained when their nominations were confirmed by the Senate
during the December 2018 "extraordinary session." It asks this court to recognize the statutory
rights the appointees regained after the March 27, 2019 court of appeals' order.
In response, Governor Evers asserts that the legislature is creating a false picture of an
emergency or of chaos surrounding the various boards and commissions and that there is no need
for this court to grant any immediate temporary relief. For example, he relies on an affidavit
from the chairperson of the PSC to the effect that this litigation and the loss of one of its three
members has not hindered the PSC's ability to complete its work, pointing to an April 11, 2019
meeting of the two remaining members, at which the PSC had decided 31 agenda items. The
6

At the time of the Legislature's April 10, 2019 filing, this appeal was still pending in the
court of appeals, but a petition for bypass of the appeal to this court had been filed in this court.
On April 15, 2019, this court granted the petition for bypass and assumed jurisdiction over the
appeal.

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Governor also argues that the court of appeals properly exercised its discretion when it denied
the Legislature's motion to enforce its stay. If this court would decide to review the matter anew,
the Governor contends that this court should reach the same conclusion as the court of appeals
that he was permitted to withdraw the nominations when the injunction was in effect prior to the
March 27, 2019 stay order.
Although the Legislature has not specifically cited Wis. Stat. § (Rule) 808.07(2), it is
clear that its various motions for temporary relief pending appeal have been brought pursuant to
that rule.7 Wisconsin Statute § (Rule) 808.07(2) authorizes both a circuit court and an appellate
court to grant a number of forms of temporary relief while an appeal is pending, including (1)
staying execution or enforcement of a judgment or order; (2) suspending, modifying, restoring,
or granting an injunction; or (3) issuing any other order appropriate to preserve the "existing state
of affairs or the effectiveness of the judgment subsequently to be entered."
Where a litigant asks an appellate court to grant it temporary relief pending appeal and
the litigant has sought such relief unsuccessfully in the circuit court, the motion addressed to the
appellate court is not considered in a vacuum. The appellate court's review is conducted by
reviewing the circuit court's decision to grant or deny such relief under an erroneous exercise of
discretion standard. Gudenschwager, 191 Wis. 2d at 439. Our decision in Gudenschwager also
makes clear that where a motion for relief pending appeal is directed to this court after the
movant has unsuccessfully sought such relief in both the circuit court and the court of appeals,
this court reviews the circuit court's exercise of discretion, not the court of appeals' exercise of
discretion. 191 Wis. 2d at 444 ("Consequently, we find that [the circuit court's] decision to
release Gudenschwager pending appeal amounted to an erroneous exercise of discretion."). This
is the only logical way to proceed. Otherwise, this court would be reviewing the court of
appeals' discretionary decision, which in turn was reviewing the circuit court's exercise of
discretion.
"An appellate court will sustain a discretionary act if it finds that the trial court (1)
examined the relevant facts, (2) applied a proper standard of law, and (3) using a demonstrated
rational process, reached a conclusion that a reasonable judge could reach." Gudenschwager,
191 Wis. 2d at 440 (citing Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).
Our review of the circuit court's order in this case denying the Legislature's request for a stay of
the injunction leads us to conclude, as did the court of appeals, that the circuit court erroneously
7

The dissent criticizes the court for relying on Wis. Stat. § (Rule) 808.07, implying that
the court is creating some new standard or basis for relief. To the contrary, the court is simply
using the procedure and standards that this court has established, by rule and by case law, as the
rules of decision for motions for temporary relief pending appeal. The dissent does not dispute
that the Legislature's motion is clearly one for temporary relief pending appeal. Indeed, the court
of appeals also relied on Rule 808.07 when it granted a stay pending appeal in its March 27,
2019 order in this case. Further, while it criticizes the court for relying on the court's longestablished procedure and standards, the dissent tellingly offers no other basis on which to decide
the current motion.

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exercised its discretion. Although the circuit court referenced the four factors set forth in
Gudenschwager, it made errors of law in the manner in which it applied them.
The four factors are set forth in footnote 2 above. It should be noted that those four items
are interrelated factors to be considered; they are not separate prerequisites. Gudenschwager,
191 Wis. 2d at 440. Thus, having more of one of the factors may excuse less of another. Id.
The first factor to be considered is that the movant must make a "strong showing" that it
is likely to prevail on the merits of the appeal. This "strong showing," however, is inversely
proportional to the amount of irreparable injury that the moving party (and the public) will suffer
in the absence of temporary relief pending appeal. The movant is obligated to show at least
"more than the mere 'possibility'" of success on the merits. Id. at 441.
The circuit court did not, however, consider whether, even if it had reached an opposite
conclusion in deciding to grant the injunction, the Legislature had nonetheless shown more than
the "mere possibility" of succeeding on an appeal of its ruling. The circuit court simply
determined that because it had found the plaintiffs' interpretation of the constitution and statutes
to be more compelling, that determination meant that the Legislature had "no likelihood of
success on the merits." As noted by the court of appeals, the circuit court never recognized that
success on the merits in this case turned on questions of law that would be reviewed de novo by
the appellate courts. The circuit court did not acknowledge that its determination was the first
word, not the last word, on the interpretation of the relevant constitutional provisions and
statutes.8
Our review of the Legislature's motion and the arguments it made below leads us to
conclude that it has set forth an argument that has "more than the mere 'possibility'" of
prevailing. The circuit court concluded that under Article IV, § 11 and Wis. Stat. § 13.02, the
Legislature may meet only during "regular sessions" that commence in January of each year and
"special sessions" called by the Governor. The Legislature points out, however, that under Wis.
8

The dissent claims that the court is substantively changing the law to say that the
presence of a de novo standard of appellate review satisfies the first Gudenschwager factor of
likelihood of success on appeal. The court is merely saying that where an appeal will rest on
review of a legal question, to which a de novo standard of appellate review will apply, it is an
error of law for a circuit court to proclaim that because it has decided the legal issue against the
appellant in granting an injunction, the appellant must therefore have "no likelihood of success
on the merits" on appeal. The standard of appellate review can greatly affect an appellant's
chance of success in the appellate court. An appellant facing a clearly erroneous or erroneous
exercise of discretion standard of appellate review will have a much more difficult burden than
one facing a de novo standard of review. Consequently, when the circuit court ignored the
impact of the standard of appellate review and refused to analyze whether the appellant will have
more than the mere possibility of convincing an appellate court, taking a fresh look at the legal
question, to reach the opposite conclusion, it failed to properly apply the law, thereby
erroneously exercising its discretion.

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Stat. § 13.02(2), the "regular session" is to commence on the first Tuesday after January 8 th
"unless otherwise provided under sub. (3)." Subsection (3) of the statute provides that the joint
committee on legislative organization shall meet and develop a work schedule for the session.
The Legislature further notes that since the late 1960s or early 1970s, in each biennium, both
houses have passed a joint resolution providing that the Legislature's "session" will extend from
the beginning of the biennium until the end of the biennium, with certain periods of time
prescheduled for floor sessions and other periods prescheduled for committee work, with the
ability to convert committee work periods into floor periods. Such a joint resolution was in
effect when the Legislature called itself into a floor period (or "extraordinary session") in
December 2018. Moreover, the Legislature questions whether the circuit court had the authority
to inquire into the manner in which the Legislature called itself into a floor period. See State ex
rel. Ozanne v. Fitzgerald, 2011 WI 43, ¶15, 334 Wis. 2d 70, 798 N.W.2d 436.
As we are only at the early stage of this appeal and in the context of a motion for
temporary relief pending appeal, we express no position as to whether or not any of the
Legislature's arguments will ultimately prevail. That is not the focus of this analysis. We cannot
say, however, that the Legislature's arguments have "no likelihood of success on the merits," as
the circuit court did.
We further agree with the court of appeals that the circuit court's consideration of the
irreparable harms that would flow from denying relief pending appeal was erroneously premised
on the circuit court's determination that the challenged Acts and confirmations would ultimately
be found to be invalid. As the court of appeals properly noted, there is a substantial harm to the
Legislature and to the public where statutes enacted by the people's elected representatives are
declared unenforceable and enjoined before any appellate review can occur. Indeed, the harm
that stems from refusing to stay an injunction against the enforcement of a law passed by the
Legislature and signed by the Governor, regardless of the nature of the challenge to the law, is an
irreparable harm of the first magnitude.
In addition, and of equal importance, the circuit court completely ignored the harms that
would result from refusing to stay its order "vacat[ing]" the appointments, even temporarily.
First, in the absence of a stay and in the event of an ultimate determination that the Legislature
was validly convened, the 82 appointees will have been harmed by having been removed, even
temporarily, from exercising the powers of their positions. Likewise, the boards and
commissions to which those individuals were appointed will have been harmed by the failure to
receive the votes and input of those individuals. Finally, the public will also have suffered
irreparable harm if individuals who have been confirmed to appointed positions are removed
from those positions without a final determination on whether their confirmations were valid.
The circuit court also failed to take into account that its injunction had not just enjoined
the appointees from exercising the powers of their respective positions; it had vacated their
appointments. Denying a stay, therefore, not only kept those appointees from exercising their
respective powers for a period of time while the injunction was reviewed on appeal, it provided a
potential basis for the Governor to withdraw those nominations permanently, as his March 22,

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2019 letter purported to do. The circuit court's refusal to grant a stay of its injunction, therefore,
also gave rise to the potential confusion that would ensue if the Governor nominated new
individuals to the positions at issue, thereby creating a situation where two people would both
claim a right to the same position.
On the other hand, staying the injunction would not have created irreparable harm, at
least as to the appointees. The circuit court's injunction was based on its determination that the
December 2018 confirmations of the 82 individuals were invalid because the Legislature was not
properly convened. Even if the circuit court's view is ultimately determined to be the correct
one, invalidating the December 2018 confirmations would not mean that those individuals lacked
authority to serve. When the Governor nominates someone to serve in the types of positions at
issue, that nominee serves in an acting capacity until the Senate confirms them or rejects their
confirmation. If the December 2018 confirmations would ultimately be found to be invalid,
those individuals could have continued to serve in an acting capacity just as they had done prior
to the December 2018 confirmation vote. In other words, the invalidity of the December 2018
confirmation vote would not render the initial appointments of those 82 individuals void ab
initio. The invalidity of the December 2018 confirmation vote would only return those
individuals to the status of a yet-to-be-confirmed nominee serving in an acting capacity. Only by
"vacat[ing]" the appointments and then refusing to stay that order did the circuit court purport to
remove those individuals from their positions, even temporarily.
We therefore conclude that the balance of the four Gudenschwager factors weighs in
favor of granting temporary relief until this court can complete its work on the appeal.
The question that remains is what the nature of that temporary relief should be. To
answer this question, it is important to remember what this court is reviewing. We are reviewing
the circuit court's decision not to grant a stay at the time that it entered its injunction. It is at this
point that we depart from the court of appeals' apparent belief that its authority to issue relief
pending appeal was limited to staying the circuit court's injunction and that such a stay was
prospective only. As noted above, Rule 808.07 gives an appellate court a much broader range of
tools to craft relief that is needed to preserve the status quo and to ensure the efficacy of any final
appellate decision. Moreover, if the determination is made by the appellate court that the circuit
court erred in failing to grant a stay at the same time that the injunction was issued, then the
appellate court should craft its relief to return the parties to the positions they were in
immediately prior to the entry of the circuit court's injunction to the extent practicable.
Indeed, that is what Rule 808.07(2)(a)3. contemplates when it authorizes an appellate
court to "[m]ake any order appropriate to preserve the existing state of affairs . . . ." The
"existing state of affairs" referenced in the rule, at least under these circumstances, has to mean
the state of affairs in effect prior to the circuit court's injunction. If it did not mean this, but
rather meant only the state of affairs as of the moment of the appellate stay, then the appellate
court would be powerless to undo any acts taken by the parties before the appellate court could
act on a request for a stay. This would lead to an absurd result. It would encourage litigants to
move for injunctions in a circuit court, and when they obtained such an injunction, to rush

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around taking all sorts of actions before the appellate court could even consider whether to issue
a stay or other temporary relief--actions that the appellate court would then be unable to undo.
That is antithetical to the orderly administration of justice and therefore cannot be what the rule
intends. On the other hand, there are practical limits to what actions an appellate court can undo
in order to return the parties to the prior state of affairs.
The state of affairs that was existing immediately prior to the entry of the circuit court's
injunction in this case was that the three Acts were in effect and the 82 appointees were
performing the duties of their respective positions. We therefore tailor the relief we grant to
restore that state of affairs to the extent practicable. This requires two separate forms of relief.
First, we continue the court of appeals' stay of the circuit court's injunction against the
enforcement of the three Acts and the enforcement of the confirmations of the 82 appointees for
the duration of this appeal. Second, we grant an injunction returning the 82 appointees to the
respective positions to which they were appointed immediately and for the duration of this
appeal. Because the circuit court should have entered a stay of its injunction at the time it was
entered, and in order to ensure the effectiveness of our order returning the 82 appointees to their
positions, we order that the Governor's March 22, 2019 letter withdrawing the appointments was
without legal effect and will remain so for the duration of this appeal. The 82 appointees shall
immediately be allowed to perform the duties of their respective positions in the same manner as
they were performing those duties prior to March 21, 2019.
IT IS ORDERED that the motion of the Intervening Defendant-Appellant, Wisconsin
Legislature, for temporary relief pending appeal is granted in part, as set forth below; and
IT IS FURTHER ORDERED that the court of appeals' March 27, 2019 stay of the
portion of the Dane County circuit court's March 21, 2019 order in Dane County Case No.
19CV84 that enjoined enforcement of any provision of 2017 Wisconsin Act 368, 2017
Wisconsin Act 369, and 2017 Wisconsin Act 370 shall remain in effect pending this court's final
decision in this case; and
IT IS FURTHER ORDERED that the court of appeals' March 27, 2019 stay of the
portions of the Dane County circuit court's March 21, 2019 order in Dane County Case No.
19CV84 that enjoined the defendants from enforcing the December 2018 confirmations of the 82
nominees/appointees to the various state authorities, boards, councils, and commissions and that
"temporarily vacated" those appointments shall remain in effect pending this court's final
decision in this case; and
IT IS FURTHER ORDERED that the 82 nominees/appointees are hereby restored, as of
the date of this order, to the positions to which they were appointed, and they may exercise all of
the rights and duties of those positions as they did prior to the Dane County circuit court's
March 21, 2019 injunction and order, pending this court's final decision in this case. The letter
of March 22, 2019, from Governor Evers to Jeff Renk, Chief Clerk of the Wisconsin Senate, was
of no legal effect and will remain so for the duration of this appeal.

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ANN WALSH BRADLEY, J. (dissenting). Relying on an argument not advanced by any
party, the majority reinstates 82 gubernatorial appointees. The danger of a court reaching out
and relying on a statute not cited by the parties is twofold. First, it blindsides the parties and
deprives them of notice and the opportunity to be heard. Second, the court does not have the
benefit of making sure that its newly advanced theory has been tested by an adversary briefing
process, thereby increasing the chance of inadvertently or sub silentio substantively changing the
law. Indeed, it appears that the majority has changed the substantive law here.
Although the majority acknowledges that the Legislature has not cited Wis. Stat. § (Rule)
808.07(2), it still relies upon that rule in crafting the relief it affords. The Legislature's kitchen
sink motion for relief sought a supervisory writ, writ of mandamus, unspecified "immediate
temporary relief," and even an original action. Yet, a remedy pursuant to § 808.07(2) was not
among the types of relief sought. Nevertheless, the majority "corrects" this deficiency in the
Legislature's motion by finding relief under a stone that the Legislature did not lift. Such a
practice blindsides the parties and fails to provide notice and an opportunity to be heard on the
basis the court finds dispositive. See Springer v. Nohl Elec. Prods. Corp., 2018 WI 48, ¶¶50-51,
381 Wis. 2d 438, 912 N.W.2d 1 (Abrahamson, J., dissenting).
Without the benefit of briefing on the subject of § 808.07(2), it appears that the majority
substantively alters existing law. The majority's initial substantive error lies in its treatment of
the first Gudenschwager factor, likelihood of success on the merits of the appeal. See State v.
Gudenschwager, 191 Wis. 2d 431, 440, 529 N.W.2d 225 (1995). In the majority's view, the
circuit court erroneously exercised its discretion because "the circuit court never recognized that
success on the merits in this case turned on questions of law that would be reviewed de novo by
the appellate courts." It further opines that "[t]he circuit court did not acknowledge that its
determination was the first word, not the last word, on the interpretation of the relevant
constitutional provisions and statutes." As a result, the majority appears to alter the substantive
law, asserting that—as a matter of law—there exists more than a "mere possibility" that the
Legislature will prevail on the merits.9
Reliance on the appellate standard of review is puzzling, given that de novo review does
not make the merits of a party's arguments any stronger. Nevertheless, the majority appears to
view de novo review as tantamount to meeting the "mere possibility" standard. Does this mean
that even when a circuit court determines a law to be unconstitutional beyond a reasonable doubt
that it must deem the first Gudenschwager factor satisfied simply because an appellate court will
9

Yet another example of an inadvertent or sub silentio change in the substantive law lies
in footnote 8 of the majority order, where it states: "An appellant facing a clearly erroneous or
erroneous exercise of discretion standard of appellate review will have a much more difficult
burden than one facing a de novo standard of review." Under current law, a de novo review is
part and parcel of the erroneous exercise of discretion standard. See LeMere v. LeMere, 2003
WI 67, ¶14, 262 Wis. 2d 426, 663 N.W.2d 789 (setting forth that we decide de novo "any
questions of law which may arise during our review of an exercise of discretion . . . .").

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owe its determination no deference? Under the majority's analysis, it appears that the answer is
yes.
The majority's second substantive error lies in its one-sided presentation of the
irreparable harm that would be suffered absent a stay. It places an inordinate amount of weight
on the harm that results from enjoining an enacted law while completely ignoring the harm that
comes from leaving a potentially unconstitutional law in place.
The majority claims that "there is a substantial harm to the Legislature and to the public
where statutes enacted by the people's elected representatives are declared unenforceable and
enjoined before any appellate review can occur." Without citation to authority, it asserts that
"the harm that stems from refusing to stay an injunction against the enforcement of a law passed
by the Legislature and signed by the Governor, regardless of the nature of the challenge to the
law, is an irreparable harm of the first magnitude."
But what about the harm that results from a potentially unconstitutional law remaining in
effect? The harm wrought by subjecting the people of Wisconsin to potentially unconstitutional
"laws" should be, but apparently is not, worthy of the court's consideration. Indeed, the circuit
court here determined that the laws at issue are unconstitutional beyond a reasonable doubt. The
enforcement of a law that a circuit court determines is unconstitutional beyond a reasonable
doubt would also appear to irreparably harm the public interest, yet the majority says nary a
word about it.
For the reasons stated above, I respectfully dissent.
I am authorized to state that Justices SHIRLEY S. ABRAHAMSON and REBECCA
FRANK DALLET join this dissent.

Sheila T. Reiff
Clerk of Supreme Court

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The League of Women Voters v. Tony Evers L.C.#2019CV84

*Address list continued:
Lester A. Pines/ Tamara Packard
Beauregard W. Patterson/ Aaron Dumas
Pines Bach LLP
122 W. Washington Ave., Ste. 900
Madison, WI 53703-2718
Misha Tseytlin
Troutman Sanders LLP
1 N. Wacker Dr., Ste. 2905
Chicago, IL 60606-2882
Eric A. Baker/ Barry J. Blonien
Boardman & Clark LLP
P.O. Box 927
Madison, WI 53701-0927
Patrick O. Patterson
Law Office of Patrick O. Patterson, S.C.
7481 N. Beach Dr.
Milwaukee, WI 53217-3663

Colin Thomas Roth
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857
Corydon James Fish/ Lane E.B. Ruhland
Wisconsin Manufacturers & Commerce
501 E. Washington Ave.
Madison, WI 53703-2914
Delanie Breuer
Wisconsin Paper Council
10 E. Doty St., Ste. 445
Madison, WI 53703
Thomas C. Bellavia
Assistant Attorney General
P.O. Box 7857
Madison, WI 53707-7857