The Republican-controlled state Legislature and a former state lawmaker are suing Democratic Attorney General Josh Kaul and Gov. Tony Evers’ administration, alleging the Department of Justice is failing to follow rules for handling settlements as required by laws Republicans passed in late 2018.
Additionally, Kaul has filed a suit of his own in Dane County Circuit Court against the Republican Legislature involving the handling of settlements. Both cases represent a continuation of litigation both parties brought directly to the Wisconsin Supreme Court but that the court declined to take up.
The Legislature and Adam Jarchow, a former state representative from Balsam Lake, filed suit in Polk County Circuit Court last week against Kaul and 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 two provisions are part of controversial legislation Wisconsin Republicans and 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 Legislature have butted heads over how DOJ should follow the laws, but the Wisconsin Supreme Court last summer upheld the laws, rejecting arguments they were unconstitutional.
The court’s ruling, however, didn’t close the door on future lawsuits, with conservative Justice Brian Hagedorn noting that the court’s ruling doesn’t specifically address how the laws are applied, opening the door to the new litigation.
Kaul’s lawsuit, filed Tuesday in Dane County Circuit Court, asks for it to suspend the lame-duck law 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 argues that those provisions, as applied, violate the constitutional separation of powers.
Both the new lawsuit from Kaul and the one from the Republican Legislature are a second shot at litigating the laws after the Wisconsin Supreme Court declined to take up their requests directly.
An earlier lawsuit filed by Assembly Speaker Robin Vos, R-Rochester, asked the high court to address the same issues in the suit filed by the Legislature and Jarchow, and the same goes for a new lawsuit filed by Kaul. If adjudicated by lower courts, the cases could make their way back to the state Supreme Court.
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 suit alleges Kaul has specifically failed to comply in cases involving pre-suit negotiations that result in a final judgment.
The law states that any civil actions prosecuted by DOJ “may be compromised or discontinued ... by submission of a proposed plan to the joint committee on finance for the approval of the committee.”
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 lawsuit states that Kaul has not deposited at least $20 million in what appears to be settlement funds in the first five months of 2019 alone, and that Kaul has still not deposited any settlement money into the general fund.
The lawsuit asks the Polk County Circuit Court to order compliance with the law.