Attorney General Josh Kaul hailed the Wisconsin Supreme Court’s unanimous ruling finding the Legislature can’t oversee civil enforcement actions or cases the state Department of Justice brings at the request of executive branch agencies.
The court, which has a 4-3 liberal majority, yesterday ruled in favor of Kaul in the lawsuit he filed against the GOP-led Legislature challenging the authority the body gave itself to oversee DOJ settlements under a 2018 lame duck law.
“This unanimous ruling finally puts an end to the legislature’s unconstitutional involvement in the resolution of key categories of cases,” Kaul said. “As a result, the Wisconsin Department of Justice will be able to more efficiently resolve the cases that are impacted by this decision, including civil actions enforcing our consumer protection laws and civil actions enforcing our environmental protection laws.”
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Senate Minority Leader Dianne Hesselbein, D-Middleton, also praised the ruling, calling it “good news for Wisconsin.”
Joint Finance Committee Co-chair Howard Marklein, R-Spring Green, in a press conference said the decision “wasn’t a shock to too many of us.”
“Anytime we’ve got a settlement notice, we have very quickly acted on that … we’ve approved every single one of those settlements. So, you know, I don’t know that from a practical standpoint there’s going to be a whole lot of change,” Marklein said.
The opinion, led by conservative Justice Brian Hagedorn, states settling civil enforcement actions and the cases in question “is within the core powers of the executive branch, and the statutory requirement to obtain JFC’s approval prior to settling these cases violates the Wisconsin Constitution’s separation of powers.”
While the Legislature “may prescribe the scope of the Attorney General’s authority and discretion in the categories of civil suits,” the court found it must pass a law in order to do so.
Yesterday’s ruling comes after the state Supreme Court in 2020 rejected Kaul’s “facial” challenge to the laws. Such lawsuits must prove there is no example of where the statute could be constitutional.
The ruling states that just as pursuing civil suits is a “quintessential executive power,” so is the settlement of such cases.
“When the Legislature gives authority to the Attorney General to pursue these claims, it necessarily confers discretion on how to pursue the claims to completion, through settlement or otherwise,” Hagedorn wrote.
The justices also found the Legislature’s argument that it has an institutional interest in revenue-producing settlements considering its role in accounting for sources of income to the state “doesn’t make sense.”
“While undoubtedly the Legislature would be wise to account for all sources of income when determining the amount to tax in the coming year, it does not follow that the Legislature has a constitutional interest in controlling every executive function involving the collection of revenue, or even taxes,” the ruling states.
