Over the last three years, a group of Wisconsin lawyers has been filing briefs in federal courts across the country, taking the side of private interests in cases involving the environment, employment and gun laws.
These lawyers aren’t from a private law firm or the Chamber of Commerce. They are taxpayer-funded, state employees who work at the Wisconsin Department of Justice under Republican Attorney General Brad Schimel.
Historically, the attorney general has exercised limited authority in Wisconsin. But under Schimel, the Department of Justice has expanded its practice of filing amicus curiae or “friend of the court” briefs in courts across the country, even in cases where Wisconsin residents do not have a direct or remote interest.
In one recent case in New York, Schimel signed onto a brief siding with Exxon Mobil against two other states' attorneys general. Exxon Mobil had filed a lawsuit to block investigations into whether it had concealed information about climate change from consumers and investors.
Schimel’s brief claimed that the company was being unfairly investigated by New York and Massachusetts for taking a position on a “public policy debate.” The brief also claimed “the debate remains unsettled” about climate change.
The brief was filed on Aug. 10, shortly before much of Wisconsin was inundated with historic floods. Scientists have repeatedly linked such flooding to climate change.
In a separate case in Virginia, Schimel argued that the Kinder Morgan pipeline company should not have to face liability under the Clean Water Act for a massive gas pipeline spill in South Carolina. The court rejected Schimel’s arguments. In California, Schimel objected to the investigation of a logging company accused of starting a major forest fire.
Some of Schimel’s briefs are more overtly partisan, such as those opposing Washington, D.C.’s gun restrictions, regulations implementing the Affordable Care Act, and teacher-tenure laws in Indiana.
As Wisconsin’s chief legal officer, the attorney general is responsible for enforcing criminal and civil laws in Wisconsin, advising state officials, and defending the state when it is sued. But these briefs demonstrate that under Schimel, the department has shifted to defending private interests and advancing Schimel’s political views.
To be clear, it is not necessary for the state of Wisconsin to file these “friend of the court” briefs. The state is not a party, and filing these briefs is completely discretionary. If the attorney general and governor agree, then the attorney general may file the brief. But the effort still takes significant state resources.
These briefs also raise the question: Whose side would Schimel take if the same situations arose in Wisconsin? Amicus curiae briefs his office has filed in several Wisconsin appellate cases provide some clue. For example, Schimel has filed briefs against cities and towns that have been sued by private businesses or individuals, even though the state has typically avoided intervening in local disputes.
Residents of Wisconsin may well ask themselves why Schimel’s office is spending so much time defending private interests near and far when residents of Wisconsin are facing so many problems within the state’s borders.
In fact, Schimel’s office has been criticized for failing to timely test rape kits, letting Wisconsin polluters avoid forfeitures, and failing to adequately investigate abuses at the state’s Lincoln Hills youth prison. The department’s Environmental Protection Unit has lacked consistent leadership, with four different directors in Schimel’s four-year tenure.
Recently, 45 former Wisconsin assistant attorneys general signed a letter criticizing Schimel for “blatantly politicizing” the office of attorney general and failing to discharge its duties. Schimel’s campaign spokesperson dismissed the letter as written by “activists,” though the attorneys who signed it had served under both Republican and Democratic attorneys general. Is it really “activist” to ask your attorney general to spend tax dollars fighting for Wisconsin citizens, instead of defending private businesses and interest groups that can afford their own attorneys?
The Wisconsin Department of Justice employs many talented and dedicated individuals. They should be ensuring those who violate Wisconsin laws are held accountable, not advancing private interests and Schimel’s political agenda.
Christa Westerberg is an attorney in private practice at Pines Bach LLP in Madison.
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