When the Wisconsin Supreme Court decides a major separation of powers case stemming from last December’s lame-duck legislative session, the outcome could result in a constitutional legal doctrine scholars say would be substantially different than other states.
The case before Wisconsin’s highest court, set for oral arguments Monday, represents a significant legal challenge to the laws the Republican Legislature passed in December that curbed the authority of the incoming Democratic governor and attorney general.
The laws, which Republicans passed after losing full control of state government, but before Democrats took office, have survived one other challenge brought to the state Supreme Court by the League of Women Voters and others. The group argued the laws were unconstitutional because of the procedure Republicans used to call the Legislature back into session to pass them.
The case before the court on Monday, brought by the Service Employees International Union and others, targets the laws on another front, arguing they violate the state Constitution’s separation of powers doctrine.
The laws require Kaul to get permission from a GOP-controlled legislative committee to settle lawsuits, and they guarantee the Legislature can intervene in many cases using its own attorneys rather than those from the State Department of Justice.
If the court condones what some legal scholars called the Legislature’s “constitutional hardball,” it would place Wisconsin in a league of its own in how it regards both the powers of the attorney general and the state constitution’s separation of powers doctrine.
“What’s so unusual and bold about this arrangement is that they’re taking litigation and day-to-day decisions about litigation, which are usually thought of as quintessential executive power, and giving them to a legislative committee,” said Miriam Seifter, a UW-Madison law professor. “Wisconsin would become an outlier in allowing this.”
If the state Supreme Court sides with the Republican Legislature, Seifter argues it may be sending the signal the justices don’t plan to patrol political power plays.
“The separation of powers principle means that some legislative acts encroach too much into the powers of other constitutional actors,” Seifter said. “If this law doesn’t cross that line, it’s not clear what would.”
Wisconsin case rare
While disputes between governors and attorney generals over their powers are nothing new, there are a few cases pitting a state Legislature against the attorney general, which is traditionally viewed as an executive role.
“The idea that the attorney general is in any way anything other than purely a creature of the executive branch … is really a radical notion,” said Howard Schweber, a political science professor at UW-Madison.
He said he’s not aware of any cases like the SEIU case.
The National Association of Attorney Generals has pinpointed cases from Colorado, Indiana and New Hampshire where either the Legislature or governor disagreed with the attorney general’s decision to pursue or not pursue a lawsuit.
In each of those cases, the authority of the attorney general was affirmed. In the New Hampshire case, the state Supreme Court cited the state’s separation of powers clause in defending the attorney general.
In that case, New Hampshire’s Senate had enacted a bill that required the attorney general to join a lawsuit challenging the Affordable Care Act. The state Supreme Court deemed the bill unconstitutional because the state’s separation of powers clause “is violated when one branch usurps an essential power of another.”
Wisconsin an exception?
Attorneys hired by the state Legislature, however, argue the separation of powers doctrine in Wisconsin’s constitution is more flexible than many other states.
In court documents, the Legislature’s attorney, Misha Tseytlin, cited a previous case describing the Wisconsin Constitution as “requiring shared and merged powers of the branches of government rather than an absolute, rigid and segregated political design.”
The Legislature has argued the state’s flexible constitution, along with the fact it says “the powers, duties and compensation of the … attorney general shall be prescribed by law” mean the attorney general has no constitutional authority, and the Legislature has the final say over his or her powers.
Attorneys for the Legislature argue the state constitution would allow the Legislature to strip the attorney general of their ability to settle any cases at all, if they so wished.
Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said the case is an example of the Legislature preventing the attorney general from usurping its authority by settling litigation in ways that run counter to the Legislature’s interest.
For example, Kaul dropped the state’s appeal of a 7th Circuit U.S. Court of Appeals decision declaring that federal law blocks provisions in Wisconsin’s “right-to-work” law, which prohibits companies and unions from signing contracts that would require workers to pay dues or fees to the unions that represent them.
Former Attorney General Brad Schimel, a Republican, had asked the U.S. Supreme Court to take the case.
“What (James) Madison said is that the branches should jealously safeguard their power,” Esenberg said. “This is what the Legislature was attempting to do.”
Schweber agreed the state constitution has a “fluid” separation of powers doctrine, and that Wisconsin courts have allowed power to flow between the branches.
But he argued the Legislature’s laws curbing the attorney general’s and governor’s authority may go too far for even Wisconsin. That’s because they allow the Legislature to encroach upon a core executive role: the attorney general’s discretion in applying the law.
Schweber argued it would take an unorthodox view of the attorney general’s role to find such an encroachment acceptable.
“To uphold the (Legislature’s) argument, the court would have to find or discover a new and radically unusual idea that the attorney general is not squarely within the executive branch,” Schweber said.
Even Esenberg, who believes the state constitution grants the Legislature oversight authority over DOJ, said taking on part of the attorney general’s role is not a small task.
“It’s intrinsically difficult for the Legislature to manage litigation,” Esenberg said. “The Legislature isn’t set up well to do that.”
Attorneys for the plaintiffs have argued the Legislature’s veto authority over Kaul amounts to a substantial burden on his ability to faithfully execute the law.
Kaul demonstrated that earlier this year, when he said several cases with pressing deadlines that could award the state millions of dollars were essentially on hold due to a dispute with the Legislature’s appointed oversight committee.
Kaul is required to seek the committee’s approval to reach settlement agreements in certain cases, but Kaul and the committee have failed to agree on a confidential procedure for how to do so.
Republicans have argued the laws they passed give them a seat at the table in legal decisions that can have vast political and policy implications.
Schweber said the public should be concerned about the Legislature turning the attorney general’s office into a means for one political party to go after enemies or shape policy through selective application of the law.
“That kind of direct control by the Legislature over the processes of law enforcement really brings to mind the fears of unrestrained government that separation of powers was intended to forestall in the first place,” Schweber said.
Esenberg said those fears are overblown, and that corruption by the attorney general was possible before the Legislature ever inserted itself in DOJ business.
We are sharing the Wisconsin State Journal staffers' favorite work from 2019. From Capitol reporter Riley Vetterkind:
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