Feud between Wisconsin attorney general, lawmakers goes before appellate court

(CN) — A new act in a five-year-old legal drama in Wisconsin played out Monday morning, when a case disputing the power of the state attorney general went before an appellate court.

Central to the dispute is Section 26 of Wisconsin Act 369, which state lawmakers enacted in December 2018. On its surface, the case is a dry legal squabble. Section 26 gives state lawmakers increased oversight in settlement agreements for "certain plaintiff-side cases that the attorney general prosecutes on the state’s behalf," according to the Wisconsin Attorney General Office's appellate brief.

But beneath the legalese is a longstanding grudge between the Wisconsin's GOP-controlled Legislature and a slate of Democratic state officials - including Governor Tony Evers and Attorney General Josh Kaul - who took office in January 2019. The 2018 Legislature approved Act 369 in a lame duck extraordinary session, after which it was quickly signed by outgoing Republican Governor Scott Walker.

The act, along with its companion bill Wisconsin Act 370, was meant to limit the power of the incoming Democrats by giving lawmakers greater control of the state's executive branch. They allow legislators to overrule the governor on executive decisions regarding health care access and welfare programs, for example. More relevant to Monday's arguments, certain provisions in the acts also permit legislators to intervene in state lawsuits, and require the attorney general to bring state court settlements before a Republican-controlled committee for approval. The same committee oversees the state's legislative purse.

The conservative Wisconsin Supreme Court, in a challenge brought by the Service Employees International Union, found most of the laws' provisions facially constitutional in July 2020. But Dane County Circuit Court Judge Susan Crawford subsequently ruled in May 2022 that giving a legislative finance committee settlement approval over suits within the attorney general's purview - like environmental and consumer protection cases - violated separation of powers rules.

“Because the Legislature has encroached on a core constitutional power of the executive branch, the application of [the act] to this category of cases violates the separation of powers established in the Wisconsin Constitution,” Crawford wrote in her ruling.

The Legislature quickly appealed Crawford's ruling, leading to Monday morning's arguments before the Wisconsin Court of Appeals.

Arguing for the lawmakers, attorney Misha Tseytlin of the law firm Troutman Pepper pointed out that the state high court had already confirmed the laws' constitutionality in the SEIU decision, and argued state lawmakers - and the state of Wisconsin writ large - had a vested interest in overseeing any large lawsuits the attorney general's office may settle.

"When you have a settlement - we're talking about big dollars, opioid settlement, $400 million, tobacco settlement, over $1 billion, to throw out some hypotheticals - that's a source of income for the state," Tseytlin said. "And so the Legislature needs to monitor that source of income."

He also argued the Legislature needs to oversee how the attorney general's office disbursed any money collected from a settlement, at one point saying the office has in the past put too much money toward paying attorneys' fees - in his words, funding its own "piggy bank."

"You can't take a third of [a settlement] and put it into your piggy bank. You've got to put that into the general fund for general purpose revenue," Tseytlin said.

The court received Tseytlin's arguments more positively than those presented by Assistant Attorney General Hannah Jurss, who argued that the power to independently settle civil enforcement cases has been the purview of the Wisconsin Attorney General's Office for close to 200 years.

Jurss butted heads frequently with Judges Maria Lazar and Shelley Grogan.

"Aren't you asking us to kick a dead cat?" Lazar asked at one point, referring to the Wisconsin Supreme Court ruling in the SEIU case that the 2018 laws were facially constitutional.

Jurss denied that was the case, pointing out that declaring a law constitutional on its face does not automatically make every application of that law constitutional as well - something the state high court said itself in its SEIU decision.

"We know that SEIU did not decide these particular categories of application, because the Supreme Court felt the need to stress not only once but twice that it was not reaching those decisions," Jurss said.

Grogan rebutted that in the SEIU case, the justices also found that litigating certain cases on behalf of the state was not an exclusive power of executive branch, instead falling "within those borderlands of shared powers."

"I think you are reading SEIU much too narrowly in your emphasis," Grogan said.

But Jurss stuck to her arguments, accusing state lawmakers of trying to legally hamstring their political opponents in the executive branch.

"The Legislature gets to write new laws," Jurss said. "What it can't do is say that because it gets to set the rules of the game, that it gets to interrupt and call the play mid-game."

The appellate judges took both attorneys' arguments under advisement but did not say when they would deliver a ruling.

Follow @djbyrnes1

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit