Federal appeals court checks the legislature’s expanding power 

Attorney General Josh Kaul speaks with reporters outside the Supreme Court (photo by Ruth Conniff)

Attorney General Josh Kaul speaks with reporters outside the Supreme Court

Who speaks for the State of Wisconsin in court? Until recently, the answer has always been the Attorney General. Wisconsin voters elect a chief legal officer every four years. Absent extenuating circumstances, the AG represents the state, its officials, and its departments, agencies, commissions, and councils. When the governor or another executive branch official is sued in their official capacity, the AG represents them. 

When the legislature or individual legislative leaders are sued in their official capacity, the AG represents them, too. And when a private party challenges the constitutionality of a state statute, the AG steps up to defend the law.

This all makes sense. Part of the AG’s role as chief legal officer is to champion state law, both by enforcing that law when someone violates it and defending that law when anyone attacks it. By tradition, the AG’s work in this respect is nonpartisan. When it comes to state law, the AG, regardless of political party, champions the law as it exists. This is not a question of which party advanced the law through the legislature or which governor signed the bill. Attorneys general stand up for the law as they find it. (There have been exceptions, but they are extremely rare.)

The 2018 lame-duck session upended this sensible tradition. In that session, the Wisconsin legislature adopted new laws purportedly authorizing it to jump into any lawsuit involving state law. You read that right: the legislature promulgated a law that requires private litigants to serve legislative leadership with copies of legal papers in any case questioning the constitutionality of a state statute or even its interpretation. 

The legislature also authorized itself to hire private lawyers (at taxpayer expense) to appear in court on behalf of the state. Notably, the Wisconsin statutes already required litigants to notify the AG of any suit in which the validity of state law is questioned. And the AG already had broad authority to intervene—that is, to show up in such cases and defend state law. So, why did the legislature extend the notice and intervention statutes? To expand its own power and to undermine the AG and the governor, who just happen to be from a different political party than the legislative leadership.

There was no structural problem with Wisconsin law as it existed; indeed the legislature had been perfectly content to allow attorneys general to control the defense of actions against the State for 170 years—up until just before the November 2018 general election. Nor was there anything that the AG-elect said about defending laws passed by the legislature that gave cause for alarm. To the contrary, AG Josh Kaul has followed through on his pledge to consistently defend state law. 

Yet even before Kaul was elected, Republican legislative leaders hired private lawyers and told the federal court hearing the challenge to the partisan gerrymander of legislative districts that the Wisconsin State Assembly must be allowed to participate as a party in the lawsuit, despite the AG’s capable defense of the law for the prior three years.  

The Assembly and its private lawyers argued that the Assembly must be allowed to intervene in the case because they could not be certain that Kaul—his clear, repeated assurances notwithstanding—would defend the law if he won the election. Kaul did win last November, and, true to his word, he continued his predecessor’s defense of Wisconsin’s gerrymandered maps. Nevertheless, taxpayers got stuck picking up the more-than-$850,000 tab for the legislature to hire private lawyers.

Kaul has also defended state abortion laws against a challenge from Planned Parenthood of Wisconsin. Before any court has the opportunity to consider the merits of Planned Parenthood’s arguments against the laws, that case has become a test of the legislature’s claimed powers to insert itself into any lawsuit. As in the redistricting case, the legislature ran to court, insisting that they sky was falling because it predicted (incorrectly) the AG would not defend state law. 

This time, the legislature invoked its new laws, which claim to give it the right to intervene in both state and federal courts. But the federal trial court told the legislature its help was not needed. And, on appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed that ruling.

Combined with the federal district court’s ruling that the legislature should not be permitted to intervene, in part, because its participation as a party “would likely infuse additional politics into an already politically-divisive area of the law,” the Seventh Circuit’s ruling provides a ray of hope for Wisconsinites who have seen the state courts become mired in partisan rancor. It also serves as a model for how federal and state courts alike should resolve issues by applying established legal principles to new factual situations, rather than relying on partisan or ideological considerations.

The most important aspect of the Seventh Circuit’s ruling is that it sets a high bar for the legislature to meddle in federal-court litigation by claiming to appear on behalf of the state. The court noted that the Wisconsin statute cannot control procedure in a federal court, even though the statute expresses the legislature’s wish to be able to involve itself in more litigation. That does not mean there are no circumstances in which the legislature can express its views of state law. The Seventh Circuit noted that intervention by the legislature would be appropriate if it can show that the AG will not defend state law or is performing such a defense in bad faith or with gross negligence. But, as long as the AG is representing the state and doing so competently, there is no need for the legislature to insert itself as a party to litigation.

Judge Diane Sykes, who previously served on the Wisconsin Supreme Court, wrote separately, insisting that the court set the threshold for legislative intervention too high. But the majority of the Seventh Circuit panel disagreed with her, accepting the district court’s finding “that the value the Legislature added to the Attorney General’s representation of the State was outweighed by the practical complications that could have resulted from the State’s having two representatives at the same time.”

The Seventh Circuit’s decision is noteworthy because it imposes an obstacle to the legislature’s expansion of its own power, which has thus far gone unchecked by the Wisconsin Supreme Court. Granted, the obstacle is a procedural one that applies only to lawsuits brought in federal court. The decision nevertheless inspires confidence that the federal courts will not rubber stamp the legislature’s political agenda, but will decide issues based on established legal precedent and rules. In that sense, this otherwise routine decision serves as a model for how courts—state and federal—should resolve issues and restore public confidence in the judiciary.

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Douglas Poland
Douglas Poland

Douglas Poland is a partner at Stafford Rosenbaum LLP in Madison, where he co-chairs the firm’s Election and Political Law practice group. He is on the Board of Directorst of the Madison Lawyer Chapter of the American Constitution Society. He represented plaintiffs in Baldus v. Brennan and Whitford v. Gill, lawsuits challenging Wisconsin’s current legislative redistricting law. The views expressed here are his own and do not represent those of his firm or clients.

Jeffrey Mandell
Jeffrey Mandell

Jeff Mandell is a partner at Stafford Rosenbaum LLP, and co-chair of the firm's Election and Political Law group, as well as its Appellate groups. Jeff is also the President and Lead Counsel of Law Forward, a nonprofit, nonpartisan impact-litigation organization focused on protecting and advancing democracy in Wisconsin. The views expressed here are his own and don't represent those of his firm or its clients.