Legislature attempts to wrest control over lawsuit settlements on opioids

By: - June 23, 2021 4:39 pm
Needle, spoon pill bottles

Photo by Michael Longmire on Unsplash

Under a Republican bill that passed both houses, any settlement that comes from the multidistrict opioid litigation would give control over the money to the Legislature through its budget committee and split funds giving 70% of it to counties and 30% to the state. 

The bill passed the Assembly on Tuesday and the Senate on Wednesday over Democratic opponents asserting that it is an unconstitutional power grab.

Partisan controversy surrounding the measure stems from authority that was taken away from Attorney General Josh Kaul, a Democrat, after he won election in 2018. Republicans held a lame duck session a month later before Kaul could be seated and took away much of his authority in settling lawsuits. Kaul has challenged the seizure of his powers in court, and on June 10 filed another suit along with Gov. Tony Evers and the Department of Justice against the Joint Finance Committee, charging that the law is unconstitutional. Republicans have also sued Kaul for not following their lame duck law signed by former Gov. Scott Walker. Those cases are pending.

Attorney General Josh Kaul
Wisconsin Attorney General Josh Kaul

This new bill, said Kaul in a statement, would go even beyond the powers usurped during the lame duck session. It also, he stated, does not cap the amount of the settlement that can be taken by attorneys in fees. Other states, he noted, have capped that amount. 

“Without a cap, some funds that would otherwise go to fighting the epidemic would instead go to legal fees,” he added. “There’s no reason that Wisconsin shouldn’t have a cap when other states do.

Kaul said the bill unconstitutionally gives the Joint Finance Committee (JFC) power over opioid legislation even though the committee has not set up any process for review.

“…it creates no process for legislative review of confidential materials, a process JFC still hasn’t been able to develop in the 2 1/2 years since the lame duck laws were passed. AB374 unnecessarily adds uncertainty to potential opioid-related settlements.”

“We should work collaboratively — across the aisle — to develop better legislation,” said Kaul. “I support the idea of passing good legislation ensuring that Wisconsin recovers as much as possible and allocating a large part of Wisconsin’s share of those settlements to local governments. But the bill being rushed through the legislature isn’t good legislation and it shouldn’t become law.”

There was no discussion of the bill on the Senate floor. In a press release after the Assembly vote on Tuesday, Rep. Jon Plumer (R-Lodi), its author, applauded the vote.

“Now that we have a realistic chance to get necessary and overdue financial resources from the companies responsible for the epidemic, we need to make sure we are poised to put those resources to their best use,” he stated in a release. “The 71 Wisconsin counties that have filed suit would receive 70% of the proceeds, while the state would retain the remaining 30%. Counties have been at the forefront of this crisis and their court systems, law enforcement, medical examiners, and health & human services departments have borne the brunt of the costs.”

The bill was also praised by Mark O’Connell, executive director of the Wisconsin Counties Association during his June 14 committee testimony on the bill. 

“The dollars are ready for us to use for mitigation and abatement, and it is critical that counties have the proper tools to fight the opioid scourge, without getting caught up in
layers of government and bureaucracy,” said O’Connell. “This legislation will prepare Wisconsin to receive settlement funds and we are working closely with state leaders to
ensure this happens.”


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Melanie Conklin
Melanie Conklin

Melanie Conklin is proud to be a native of the state of Wisconsin, which gave humankind the typewriter, progressivism and deep-fried cheese curds. Her several decades in journalism include political beats and columns at Isthmus newspaper, the Wisconsin State Journal and other publications. When not an ink-stained wretch, she served time inside state, local and federal government in communications. She is excited to be back at the craft of journalism as Deputy Editor of the Wisconsin Examiner. It’s what she’s loved ever since getting her master’s degree in journalism from the UW-Madison. Her family includes one husband, two kids, four dogs and five (or more) chinchillas.