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Wisconsin attorney general sues GOP leaders over lame-duck law

Wisconsin Attorney General Josh Kaul
Wisconsin Attorney General Josh Kaul(WSAW)
Published: Nov. 24, 2020 at 5:30 AM CST
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MADISON, Wis. (AP) — Wisconsin’s Democratic attorney general filed a lawsuit on Monday challenging parts of a Republican-authored law limiting his powers that was passed during a lame-duck legislative session two years ago.

The lawsuit from Attorney General Josh Kaul, together with Democratic Gov. Tony Evers, targets parts of the law requiring the state Department of Justice that Kaul runs to get approval from the Legislature’s budget committee before settling certain lawsuits. The change was approved by Republicans in the weeks after Kaul was elected attorney general and just before he took office.

Kaul’s challenge of that part of the law comes four months after the Wisconsin Supreme Court upheld the lame-duck laws, which also reduced Evers’ powers before he took office. The court rejected a lawsuit filed by a coalition of labor unions that argued that the laws give the Legislature power over the attorney general’s office and that violates the separation of powers doctrine in the state constitution.

The court ruled that the attorney general derives his powers from state statutes, not the constitution, and his role is not a core function of the executive branch. But Justice Brian Hagedorn, writing for the majority, also said that the laws remained open to future legal challenges because the decision didn’t address how they were applied.

That opened the door for Kaul’s latest lawsuit, which he is asking the Supreme Court to take as an original action — skipping lower courts. The court’s conservative majority was 5-2 when it ruled on the earlier case, but it is now 4-3, seemingly increasing Kaul’s odds of success.

Republican legislative leaders named as defendants did not immediately return messages seeking comment.

Kaul argues that the law is unconstitutional as applied to two categories of cases involving civil lawsuits over environmental and consumer protections cases and those involving executive branch agencies. Kaul said those cases make up the majority of settlements his department enters into.

“That is an executive function and it’s one where the Legislature doesn’t have an appropriate constitutional law under separation of powers,” Kaul said. “It’s impeding our ability to get justice in these cases.”

Kaul argues there is an urgency to resolve the issue because the Department of Justice’s ability to settle lawsuits is hampered by having to get approval from lawmakers, a process that be be time consuming and sometimes politically fraught.

“Most recently, on September 30, the Department asked [Joint Finance Committee] to consider three potential settlements. As of today, JCF has not met or set a hearing on those three proposals,” Kaul’s filing reads. “To participate in fast-moving negotiations in real time, the Department needs full authority to reach a final settlement during negotiations.”

“We have an ongoing violation of separation of powers in the state,” Kaul said in an interview.

The law makes it harder to get restitution for consumers who get cheated, implement remedial action on an environmental violation or help get recovery for a state agency that helps taxpayers, Kaul said.

“This has real consequences for Wisconsinites,” he said.

Kaul and lawmakers had been at an impasse over approving settlements until last year, when Kaul agreed to present cases with the consent of litigants. Kaul and lawmakers also have not created a way to discuss confidential litigation.

The filing states, “Any effective negotiation requires a degree of secrecy incompatible with public discussion at a JCF hearing. The mere fact that the Department is even considering settlement is highly confidential in many cases, and disclosure of that fact would impair the State’s negotiating position. Moreover, the Department loses leverage when its settlement range is disclosed. If the other side knows that range, it can simply hold out for the lowest amount.”

The Legislature’s budget committee last approved settlements brought forward by Kaul in June, when it signed off on four deals. Those cases involved agricultural pollution, landfill violations, a petroleum spill and deceptive housing practices. The settlements will generate a combined $635,000 for the state.

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