The state Supreme Court today upheld lame-duck laws Republicans approved in December 2018 giving GOP legislators the power to intervene in court actions involving the Department of Justice as well as oversight of settlements the agency reaches.

The court also upheld provisions giving the Joint Committee of Legislative Organization the power to review any security changes at the state Capitol and allowing lawmakers to suspend administrative rules multiple times.

But it struck down a provision that required the executive branch to get clearance from the Legislature before issuing so-called guidance documents.

While the court upheld the provisions related to DOJ, it also noted the ruling was limited because the lawsuit argued the statutes were unconstitutional in any circumstances and didn’t provide any examples of how the laws have been applied.

The court noted such a challenge faces a high bar of proving that the laws can’t be constitutionally applied under any circumstances, and those who sued failed to meet that burden.

In the majority opinion, conservative Justice Brian Hagedorn wrote lawmakers may have an interest in litigation impacting state finances, for example. Representing the state is predominantly an executive branch function falling under the purview of DOJ, but it is also “within those borderlands of shared powers, most notably in cases that implicate an institutional interest of the legislature.”

“We stress that this decision is limited,” Hagedorn wrote. “We express no opinion on whether individual applications or categories of applications may violate the separation of powers, or whether the legislature may have other valid institutional interests supporting application of these laws.”

Senate Majority Leader Scott Fitzgerald, R-Juneau, hailed the decision as a win for GOP lawmakers.

“A rogue attorney general can no longer unilaterally settle away laws already on the books and unelected bureaucrats can’t expand their powers beyond what the people have given them through their representatives,” Fitzgerald said.

The court’s ruling left open the door to a future challenge on an applied basis, and Dem AG Josh Kaul made clear one is coming.

“Today’s decision leaves for another day a ruling on whether most applications of two provisions undermining the authority of the Office of Attorney General are constitutional, but the ultimate result is inevitable: those provisions will be found to be unconstitutional in nearly all of their applications,” Kaul said.

All five conservatives joined the 5-2 majority opinion on the questions regarding DOJ, oversight of Capitol security and suspending administrative rules.

The court broke the case into two decisions with conservative Justice Daniel Kelly writing the opinion striking down guidance documents. That decision was joined by conservative Justice Rebecca Bradley and liberals Ann Walsh Bradley and Rebecca Dallet in the 4-3 decision.

Guidance documents include manuals, handbooks, directives, bulletins or other records that explain or provide advice on an agency’s implementation and enforcement of a statute or rule. The extraordinary session laws placed new restrictions on those documents, including requiring a public comment period and giving the Legislature oversight.

But the court ruled their creation and dissemination falls within the executive branch’s “core authority” and requires no legislative input because they are “not law, they do not have the force or effect of law, and they provide no authority for implementing or enforcing standards or conditions.” Instead, they simply explain how the laws and rules will be enforced.

“That is to say, they represent nothing more than the knowledge and intentions of their authors,” Kelly wrote. “It is readily apparent, therefore, that the executive need not borrow any legislative authority, nor seek the legislature’s permission, to create guidance documents. It could hardly be otherwise.”

In reacting to the court’s decision, Evers knocked GOP lawmakers, who he said sought to override the will of the people by passing the laws following his 2018 victory and “they’ve been sour grapes ever since.”

“From the lame duck laws and challenging my veto power, to Safer at Home and holding an unsafe election this past April, clearly Republicans are going to continue working against me every chance they get, regardless of the consequences,” Evers said. “But I’m not going to let that stop me from continuing to do what I promised I would when I ran for this office — I am going to keep putting people first and doing what’s best for the people of our state.”

See the ruling:
https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=268997

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