Appeals court weighs whether lawmakers can override AG in accepting legal settlements

Lawyers for the state Legislature and the Department of Justice argued Monday whether a law is unconstitutional that gives lawmakers veto power over legal settlements that provide a financial payout to the state.

The requirement that the attorney general submit those settlements to the Legislature was part of a law that the Republican majority Legislature and then-Gov. Scott Walker, also a Republican, enacted in December 2018, just before Democrat Josh Kaul took office as Wisconsin’s attorney general. 

Other elements of the lame-duck law limiting the attorney general’s power have been upheld in the Wisconsin Supreme Court, but in 2021, Kaul sued the Legislature over the provision that requires his office to submit settlements that it wins to the Legislature’s Joint Finance Committee.

In separate rulings in May and June 2022, Dane County Judge Susan M. Crawford agreed with Kaul that the requirement was unconstitutional, both when the DOJ wins a financial settlement after taking enforcement action against a person or business charged with violating state laws, and when the department agrees to a settlement after a civil lawsuit against a person or an organization.

The Legislature’s Republican leaders appealed and moved the Dane County case to the appeals court’s 2nd District, where three out of the four judges are viewed as political conservatives. Two of them were on the three-judge panel that heard arguments in the case Monday.

Assistant Attorney General Hannah Jurss, arguing for the Justice Department, said that for the Legislature to be able to block a settlement when the department represents a state agency in the executive branch would violate the principle of separation of powers. 

Jurss said that reaching a settlement is part of the DOJ’s role in executing the state’s laws, something that the Legislature is not supposed to interfere with. By demanding veto power, “the Legislature has taken for itself power that constitutionally belongs to the executive branch,” she said. 

Misha Tseytlin, representing the Legislature, argued that a decision on how to spend the money that comes from a settlement should be a responsibility of the Legislature. “It’s very sensible that the Legislature would be very concerned about the kind of spending powers and public-policy setting authority that could be wielded by the attorney general” in disbursing the income from a settlement, he said.