Wisconsin Attorney General Josh Kaul is urging the state Supreme Court to reject a recent lawsuit from the Republican Legislature that alleges he failed to comply with parts of the lame-duck laws that sought to limit his powers.
The petition, filed directly with the court, was the first brought by Republicans surrounding the December session. It argues Kaul is narrowly interpreting the law, refusing to give lawmakers the ability to review some of his legal decisions, and adds the Democrat failed to deposit settlement dollars into the state's general fund.
But Kaul, in his Monday response, called on the justices to deny the request, which he said is “largely unnecessary” given other ongoing suits. He characterized the law’s language as “vague and difficult-to-apply,” thus necessitating decision-making over implementing and applying the provisions over settlement funds and legal review.
Under the December extraordinary session laws, the attorney general is required to deposit all settlement money into the state’s general fund, in addition to compelling that any civil suits entered into by the Department of Justice could only be settled or discontinued with legislative approval, among other things.
The GOP filing noted that Kaul outlined his narrowed interpretations of those sections of the law in a letter to the Legislature’s budget committee co-chairs, Sen. Alberta Darling, R-River Hills, and Rep. John Nygren, R-Marinette, in mid-June, and pointed to cases where a legislative oversight component wouldn’t apply.
In the correspondence, the document said that Kaul was choosing to interpret the law so that the requirement to deposit the dollars into the general fund only pertains to certain cases. The letter spurred a follow-up from the co-chairs a few days later, and additional ones ensued.
But Kaul’s filing laid out the AG’s attempts to work with the Legislature’s budget committee before this summer to implement the law early this year, including drafting a memorandum showing the general points of agreement, though committee chairs never gave final approval of the plan, per the document.
He also slammed Republicans for excluding specific examples of his application of the law, meaning any court decision “would amount to an advisory opinion” on potentially applying the language. If justices choose to intervene, he said they would “engage in supplemental lawmaking,” and he instead pushed for allowing the existing litigation to continue its course.
Kaul, in his response, argued repeatedly that if the court were to grant the petition, the Legislature would be encouraged “to return to this Court again and again” if other disputes over the law arise.
“This Court can avoid becoming a court of first resort by keeping the door closed here,” the filing said.
The suit, the fifth legal challenge to the extraordinary session laws and the first brought by Republicans, was filed separately from an existing challenge to the lame-duck laws. That case, brought by five unions, alleges the extraordinary session unlawfully limited the powers of the incoming attorney general and governor.
In that case, a Dane County judge this spring initially blocked some parts of the laws, including portions governing guidance documents and Kaul’s authority as attorney general. But the state Supreme Court took over the case and reinstated most of those provisions.
Oral arguments in the unions’ case are scheduled for Oct. 21. The Legislature in its brief gave the court the option to consolidate the new motion with the original case.