Wisconsin judge strikes down law granting legislators control over settling state lawsuits

MADISON, Wis. (CN) — A Wisconsin law that gives a Republican-controlled legislative committee control over how the attorney general settles some civil lawsuits involving the state was declared unconstitutional by a state judge on Thursday.

The ruling from Dane County Circuit Court Judge Susan Crawford represents a rare win for Governor Tony Evers and Attorney General Josh Kaul, both Democrats, in a more than three-year legal battle with Republicans who hold the reins in the Wisconsin Legislature over lame-duck laws that clipped many of their executive powers after they were elected but before they took office.

Wisconsin Acts 369 and 370 were passed in late 2018 after a hurried extraordinary legislative session two weeks after Evers and Kaul bested their Republican incumbent counterparts in midterm elections that saw liberals sweep every statewide office.

The controversial laws gave legislators much greater oversight and intervention authority over what were traditionally the spheres of the executive branch. Republicans said they only wanted a co-equal role in representing state interests, whereas liberals condemned the laws as a cynical power grab meant to hamstring the state’s chief executive and top cop because they are Democrats.

Flurries of litigation ensued, largely resulting in the conservative-majority Wisconsin Supreme Court upholding most of the laws as facially constitutional in the summer of 2020.

But the ruling in that specific lawsuit left the door open for further, more specific as-applied challenges to some provisions of the laws, including those relevant to Thursday’s order which gave a legislative committee final approval over settlement of certain plaintiff-side state litigation.

The state high court didn’t bite when Kaul and Evers tried in November 2020 to get the justices to take up a challenge to those provisions directly, however. This led Republican lawmakers and the two Democrats to sue each other over the provisions in different circuit courts within a week of each other last year.

The Legislature and a former lawmaker claimed in Polk County Circuit Court that Kaul’s Department of Justice was not following the laws controlling settlements; the Democratic executives and former Department of Administration chief Joel Brennan claimed in Dane County Circuit Court that the laws were unconstitutional as applied to two categories of plaintiff-side civil actions.

In Thursday’s ruling, Crawford agreed with Kaul and Evers that giving a legislative finance committee settlement approval regarding civil enforcement actions brought under statutes that the attorney general is charged with enforcing, such as environmental or consumer protection laws, violated constitutional separation of powers.

Crawford considered the Legislature’s description of the provision as only giving lawmakers a “seat at the table” to be an understatement.

“It is more accurate to characterize [the statute] as granting absolute power to the Legislature, far greater than a ‘seat at the table’ alongside the prosecutor,” Crawford wrote.

The judge said the legislative committee’s ability to reject a settlement agreement essentially gives it unchecked veto powers the attorney general cannot override, which “gives the attorney general no recourse but to continue litigation or attempt to renegotiate a settlement on terms demanded by the Legislature’s joint finance committee.”

Settling a civil enforcement action is a core executive branch function, and the nature of those settlements does not implicate the Legislature’s power of the purse, authority to enact laws or other institutional interests, Crawford explained.

“In granting itself unilateral veto powers over the settlement of civil enforcement actions initiated by the attorney general, the Legislature impermissibly interferes with the execution of the laws,” she said. “Because the Legislature has encroached on a core constitutional power of the executive branch, the application of [the statute] to this category of cases violates the separation of powers established in the Wisconsin Constitution.”

Crawford granted partial summary judgment to Kaul and Evers as to their settlement of civil enforcement actions claim, enjoining enforcement of the challenged provision in that category of cases. She declined, however, to rule in favor of either side on an as-applied challenge regarding civil actions on behalf of an executive agency relating to the administration of statutory programs, such as breach-of-contract or common law tort actions, pending further proceedings.

In anticipation of a motion for a stay from the Legislature, Crawford temporarily stayed Thursday’s decision upon request of the Legislature and stipulation of Kaul, giving the order no immediate effect.

An attorney for the Republican lawmakers did not provide comment on the court’s ruling when contacted on Thursday.

Reacting to Crawford's decision, Kaul said "the lame-duck power grab by Republicans in the state legislature undermined the will of Wisconsin voters and has resulted in wasted tax dollars" and pledged to keep pushing to strike down unconstitutional aspects of the legislation.

Judge Jeffery Anderson of the Polk County Circuit Court in March issued a ruling splitting the difference between the Legislature and former lawmaker, the plaintiffs, and Kaul, Evers and Brennan, the defendants. Both sides appealed, and the case is now docketed with the Wisconsin Court of Appeals.

Adam Jarchow, the former lawmaker who helped bring that suit, is currently running as a Republican in this fall’s midterm race for Wisconsin attorney general, in which Kaul is seeking reelection.

Follow @cnsjkelly

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