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Dane County Judge declares lame-duck settlement provision unconstitutional

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A Dane County judge has ruled that parts of controversial 2018 legislation that gives the Legislature more power over settlement agreements initiated by the Attorney General’s office are unconstitutional under Wisconsin’s separation of powers doctrine.

Dane County Circuit Judge Susan Crawford ruled last week in favor of Democratic Attorney General Josh Kaul, who challenged the matter in the lower court after a previous effort was rejected by the Wisconsin Supreme Court last year.

The 2018 law states that any civil actions prosecuted by the state Department of Justice “may be compromised or discontinued … by submission of a proposed plan to the joint committee on finance for the approval of the committee.”

Crawford wrote in the May 5 decision that the GOP-led committee’s failure or refusal to approve a settlement agreement “effectively operates as a veto, with no override mechanism to act as a check on legislative authority.” The statute provides the Attorney General no recourse except to seek litigation or renegotiate a settlement on terms demanded by the committee, she added.

“The Legislature describes (the statute) as giving it a ‘seat at the table’ in litigation involving the State, implying that the Legislature intended to assume a prosecutorial role equal to that of the Attorney General,” Crawford wrote. “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 put the decision on hold, however, pending a request from the Legislature, which is expected to seek a stay of her ruling. The case is likely to make its way back to the state Supreme Court for a final decision on the matter.

“This ruling comes as no surprise from a Dane County judge,” Assembly Speaker Robin Vos’ spokesperson Angela Joyce said in an email. “When there’s a conservative accomplishment, they try to say it’s unconstitutional. We will be appealing.”

Kaul filed the lawsuit last summer asking the court to suspend the requirement that DOJ seek approval to settle cases in two categories: enforcement of consumer protection and environmental protection laws; and claims on behalf of executive agencies relating to the administration of programs they must run. DOJ argued that those provisions, as applied, violate the constitutional separation of powers.

The provision cited in the case is part of legislation Wisconsin Republicans and Democratic Gov. Tony Evers’ predecessor, Republican Gov. Scott Walker, adopted during a lame-duck session in December 2018 curbing the power of Evers and Kaul after they were elected but before they took office. Since then, DOJ and the Republican-controlled Legislature have butted heads over how DOJ should follow the laws.

“The lame-duck power grab by Republicans in the state Legislature undermined the will of Wisconsin voters and has resulted in wasted tax dollars,” Kaul said in a statement Tuesday. “We will continue working to ensure that the aspects of the lame-duck legislation that violate the Wisconsin Constitution are struck down.”

Crawford did not issue a decision on a second part of Kaul’s suit, which relates to when the attorney general can bring or defend against a lawsuit on behalf of the state or a state agency. Crawford allowed Kaul to file additional information with the court on the matter and the Legislature will be able to respond to Kaul’s amended claim before a ruling is issued.

In a separate case, the Legislature and Adam Jarchow, a former state representative from Balsam Lake and GOP candidate for attorney general, filed suit in Polk County Circuit Court last summer against Kaul and former Department of Administration Secretary Joel Brennan, alleging the two had violated provisions of state law requiring DOJ to deposit all settlement funds into the state’s general fund as well as get approval from the state’s budget committee before entering into settlement agreements.

The Jarchow lawsuit alleges Kaul has repeatedly violated the law by not submitting all proposed settlement agreements to the Republican-controlled budget committee for approval. The lawsuit also alleges that Kaul is violating the law’s requirement that “the attorney general shall deposit all settlement funds into the general fund.” The case is currently before the state’s District 2 Court of Appeals.

The Wisconsin Supreme Court issued a ruling in 2020 that upheld most parts of the Republican-authored lame-duck laws but struck down a provision creating more stringent rules for how state agencies develop guidance documents, which are used to tell individuals or organizations how to comply with state law. Justices said at the time the Legislature overstepped its bounds by attempting to take over a duty previously reserved for the executive branch.


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