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Brad Schimel

Wisconsin attorney general Brad Schimel has appointed five attorneys to a new solicitor general's office. Above, Schimel attends an election night party for Wisconsin Supreme Court Justice Rebecca Bradley at the Crowne Plaza Hotel in Wauwatosa.

Wisconsin’s Republican Attorney General Brad Schimel has established a new office dedicated to defending the state’s most controversial laws from court challenges and fighting President Barack Obama on climate change, water pollution and bathroom access.

With the creation a year ago of the Office of Solicitor General, Wisconsin has joined roughly 40 other states with specialized appeals court lawyers who have a higher probability of winning appellate cases.

But critics view the five-lawyer office as money wasted on far-right legal battles most voters don’t support.

“It’s a mini right-wing law firm in the attorney general’s office,” said state Rep. Chris Taylor, a Madison Democrat and member of the Legislature’s finance committee who opposed adding the office’s five attorneys to Schimel’s Department of Justice budget.

Of the 35 cases the new office was involved in, about one-third list the state as defendant. Those include a challenge that overturned a state law restricting abortion rights last month, and pending Constitutional tests of a voter identification requirement and limits on labor unions.

The office is also handling several appeals of criminal convictions. Most of its caseload, however, is made up of Schimel’s challenges to federal policy in such areas as immigration, health care, transgender access to bathrooms, and pollution controls.

Schimel declined interview requests, but spokesman Johnny Koremenos responded to criticism by saying there was nothing partisan about an attorney general’s duty to defend state laws when interest groups try to overturn them.

And when the solicitor general’s office joined lawsuits in Texas, Ohio and Washington, D.C., courts, the aim was to protect Wisconsin residents from overreach by the Obama administration, Koremenos said.

“Attorney General Schimel’s interest in joining multistate lawsuits that protect the powers constitutionally delegated to the states is also the people’s interest,” Koremenos said. “There’s nothing frivolous about protecting and preserving the rule of law.”

Wisconsin is lead counsel in most of the federal cases, while in others it filed supporting briefs. In still others — including three filed in Texas opposing transgender access to bathrooms, an Affordable Care Act fee and immigration policy — Wisconsin supplied affidavits and other information, Koremenos said.

Multistate legal actions aren’t new. Since the 1970s, states have joined forces to win settlements against targets including the tobacco and pharmaceutical industries. With increasing frequency, states have also fought federal mandates.

Increasing use of solicitors general

Beginning in the 1980s and 1990s, more state attorneys general of both parties began hiring lawyers to be solicitors general, said Jim Tierney, a former Maine attorney general and lecturer at Harvard and Columbia law schools who has helped several states set up solicitor offices.

Each office operates differently, but in general they all benefit from experience working in appeals courts, which differ from lower courts, Tierney said. Appellate law may require deeper research on legal precedent and theory. In lower courts, there may be more emphasis on facts and plain statutory language.

A solicitor general can also help weed out appeals that don’t have much chance of success, and can ensure that arguments it makes in one appeal don’t contradict those in another.

In 2014, UW-Madison political science professor Ryan Owens analyzed decades of U.S. Supreme Court cases involving state governments and found that having a solicitor general was one of the strongest predictors of success.

States with solicitors prevailed in about 60 percent of cases compared to 40 percent for others.

But Madison attorney Carl Sinderbrand said his concern was with how Schimel was using the office. Sinderbrand, who was a state assistant attorney general from 1979 to 1990, recalled when one of his assignments was to keep an eye on federal officials who were looking for sites to store nuclear waste.

Sinderbrand said Schimel’s use of the solicitor general’s office was misguided because it went beyond the usual level of partisanship he has seen in other attorneys general of both parties.

“This is hyper partisanship,” said Sinderbrand, who has since represented state agencies, fought against them in court, and been hired as an arbitrator for department lawsuits. “And that’s damaging, because the attorney general should be out there as the people’s lawyer, not his party’s lawyer.”

Conservationists have said Schimel’s aggressive opposition to federal pollution regulations raised concerns especially in light of his reduction of a department unit responsible for enforcing environmental laws.

Taylor, the Democratic state legislator, pointed to materials distributed by the American Legislative Exchange Council, or ALEC, calling on states to file lawsuits to block the Obama administration’s Clean Power Plan. The U.S. Supreme Court has stayed the air pollution rule while court challenges from 26 states are being heard.

Reconsidering courts

The state lawsuits come as conservatives rethink their commitment to lawmaking by legislators instead of the courts. For many years they stood on the sidelines as non-governmental groups went to court to force stricter enforcement of laws, such as those protecting air and water quality, Owens said.

“They didn’t get involved in the courts and they got their butts kicked,” Owens said.

Over time, court rulings contributed to growth in the power of federal agencies, said Rick Esenberg, president and CEO of the conservative Wisconsin Institute for Law and Liberty, or WILL.

This month, WILL announced the formation of a group, the Center for Competitive Federalism, to file lawsuits and issue policy statements nationally against federal regulation.

For his solicitor general’s office, Schimel recruited highly touted lawyers with conservative bona fides.

In December, he appointed Misha Tseytlin to lead the office. Tseytlin had been general counsel for West Virginia as it fought federal limits on burning coal. Tseytlin is a member of the conservative Federalist Society who served as law clerk for U.S. Supreme Court Justice Anthony Kennedy.

In April, Ryan Walsh was hired as chief deputy solicitor general. Walsh clerked for U.S. Supreme Court Justice Antonin Scalia, one of the court’s most conservative justices before he died in February. Walsh worked for a time at the Jones Day law firm in Washington, D.C., which has a reputation for hiring former Supreme Court clerks. The National Law Journal reported in 2015 the firm was paying them $300,000 bonuses on top of six-figure salaries.

“Attorney General Schimel was able to recruit legal talent unrivaled by most states, including two former U.S. Supreme Court clerks and two former U.S. Court of Appeals clerks, to serve in this newly established unit at DOJ,” Koremenos said. “Very few other states, if any, have more than one former U.S. Supreme clerk in their solicitor general’s office.”

Tseytlin’s Wisconsin salary was about $135,000, while Walsh made $125,528.

“The state of Wisconsin is getting an outstanding deal for the attorneys in the solicitor general’s office,” Koremenos said. “The state is paying these specialized attorneys a fraction of what they would be paid in a private law firm.”

Two other attorneys with federal appellate experience — Daniel Lennington and Luke Berg — also work in the unit. Recent law school graduate Amy Miller filled the fifth position.

Peg Lautenschlager, a Democratic attorney general from 2003 to 2006, has criticized the solicitor general’s office for the way it defended the state abortion law, but she said having an appeals court specialist makes sense. During her term, she reassigned an experienced staff lawyer as solicitor general to oversee appeals.

Republicans grumbled, and in 2006, GOP attorney general candidate J.B. Van Hollen promised to eliminate the position, and he did so after winning the election, Lautenschlager said. Van Hollen didn’t respond to phone and email messages.

Schimel: Staff lawyers spread thin

During his 2014 campaign for his first term as attorney general, Schimel called for creation of the office.

Last year, he told state lawmakers that his staff lawyers were spread too thin on appeals cases and that millions of dollars were being spent on outside lawyers.

Justice department spending on outside attorneys rose four-fold to an average of $1.3 million annually after 2011, when Republican Gov. Scott Walker and GOP lawmakers took over and enacted measures like a rollback of union rights that drew many court challenges.

In 2015, Walker and the Legislature added the solicitor general’s office to the budget, funding it for two years with about $1 million from settlements the department collects in investigations and prosecutions of Medicaid fraud, environmental violations and other wrongdoing.

Since the office was formed, the department has spent nothing on outside attorneys, Koremenos said.

State Assembly Speaker Robin Vos, R-Rochester, was pleased, a spokewoman said.

“The Office of Solicitor General has been effective in countering the multiple overreaches by the federal government,” said spokeswoman Kit Beyer. “We are fortunate to have such a high level of expertise in the office, which eliminates the need for outside counsel and is a cost savings.”

{Editors note: The story has been updated to reflect a correction. The Supreme Court has stayed the air pollution rule while court challenges proceed, not upheld it.}

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Steven Verburg is a reporter for the Wisconsin State Journal covering state politics with a focus on science and the environment as well as military and veterans issues.