Is turn-about fair play?

Evers and Kaul sue the state Legislature over lame duck constraints

Attorney General Josh Kaul advocates to take up a bipartisan bill by experts on preventing a rape kit backlog.
Attorney General Josh Kaul advocates to take up a bipartisan bill by experts on preventing a rape kit backlog.

Attorney General Josh Kaul and Gov. Tony Evers are suing the Legislature for making it more difficult for them to do their jobs. The case is tied to the actions the Republican-controlled Legislature took during its 2018 lame duck session during which it got the working relationship off to a bad start by grabbing powers away from the governor and attorney general that the previous office holders, both Republicans, had enjoyed.

The laws, Kaul stated, are a violation of constitutional separation of powers. Also at the core of the lawsuit, which includes the Department of Administration head Joel Brennan along with Evers and Kaul, is the practical matter that settling lawsuits is an action that requires speed and private negotiation, so forcing the attorney general to go to the Legislature’s Joint Finance Committee for approval could mean Wisconsin consumers and taxpayers lose out on potential settlements. The members of the Evers administration state that the “incompatibility of the settlement and legislative processes make the provision at issue unworkable.”

The lawsuit, filed in the Wisconsin Supreme Court, challenges the constitutionality of the provision of Act 369 that Kaul has previously argued interferes with his office’s ability to enforce laws and settle lawsuits.

Pre-Assembly news conference, Majority Leader Jim Steineke and Speaker Robin Vos, 11/12/19
Pre-Assembly news conference, Majority Leader Jim Steineke and Speaker Robin Vos, 11/12/19

The suit was filed against last session’s leaders, Senate Majority Leader Scott Fitzgerald and Senate President Roger Roth (who have since been replaced) and Assembly Speaker Robin Vos and Majority Leader Jim Steinke who still hold their positions. Also named in the lawsuit are the two previous co-chairs of the Joint Finance Committee, Rep. John Nygren, who Vos has reappointed to the post, and Sen. Alberta Darling, who was replaced. 

In announcing the lawsuit, Kaul noted some examples of things an attorney general can no longer do without legislative involvement that are a benefit to Wisconsin consumers. In a statement he cited securing justice and financial restitution for consumers who were cheated, including tenants defrauded by bad landlords or employees whose wages were stolen by their employers. 

Another example Kaul gave was that the lame duck laws interfered with holding polluters accountable for damage to the air, land or water. And his third example where legislative interference makes it hard to do his job is in settling disputes where a vendor or other party has harmed the state by breaching a contract.

“Wisconsinites depend on the Wisconsin Department of Justice to protect the public and ensure that justice is done,” said Kaul in a statement. “The Wisconsin Department of Justice works to make things right when consumers are cheated or when our air, water, or land is polluted. The provision of the 2018 extraordinary session legislation that’s at issue in this case impedes that critical work by giving the state legislature a role in executive branch functions, in violation of the Wisconsin Constitution’s separation of powers.”

To illustrate how legislative processes and settlement processes are incompatible, Kaul and the Department of Justice (DOJ) cite a specific case that did not fall under the new lame-duck rules, but would have caused serious problems, had that been the case.

In the particular case, on the day before a trial was to begin, the court ordered the parties to a status conference, with the ability for “full settlement authority.” If it had fallen under the lame-duck laws, JFC consent would have been needed, and “Wisconsin could not have joined that settlement,” the releases stated.

In an affidavit, DOJ attorney Corey Finkelmeyer, deputy administrator for the Division of Legal Services, states that he has settled hundreds of cases over his 21 years and various jobs at DOJ. 

Finkelmeyer noted in the court affidavit that because of limited capacity, it is not possible — nor is it necessarily the best practice — to bring every case to trial. Settlement of one case may make it possible to prosecute a different case. 

“Resolving cases requires the ability to act on short notice,” said Finkelmeyer, noting this is even more vital in complex, multistate cases with many parties involved. “Litigation often reaches a critical moment best suited for consensual decision making, a window of opportunity that may remain open only for a short time.”

He argues that “for the state to participate in fast-moving negotiations, the department needs full authority to reach a final settlement during the negotiations.” In two recent cases, which are not cited, that would not have been possible if the cases had been the type in which the Republican Legislature has demanded control.

Finkelmeyer also stated that many such negotiations require secrecy and confidentiality, that may not even permit disclosure of the fact that a settlement is being considered. Calling a legislative body into session requires both time and disclosure, even if the committee will meet in a closed session.

Citing urgency, Kaul is asking the state Supreme Court to take original jurisdiction, directly ruling on the case rather than going through lower courts first.

While the provisions have been before the Wisconsin Supreme Court twice previously, in the July case SEIU v. Vos, Kaul said that at the time the court opinion stressed that the decision was limited in the circumstances it addressed and left the door open for this lawsuit.  At the time the court 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.” The make-up of the court has also since changed, with liberal Justice Jill Karofsky replacing conservative former Justice Daniel Kelly.

In July, when SEIU v Vos was decided, Kaul gave the following statement: “In grasping at power after the 2018 elections, legislative Republicans demonstrated open hostility to outcomes chosen by Wisconsin voters and made it more difficult for state government to function effectively.”

“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,” he added, “but the ultimate result is inevitable: those provisions will be found to be unconstitutional in nearly all of their applications.”