Even After Four Years, Lawsuit Regarding Lame Duck Law Still in the Courts

Wednesday, January 18th, 2023 -- 1:01 PM

(By Shawn Johnson, Wisconsin Public Radio) Four years ago, after Democrats swept elections for statewide office in Wisconsin, Republican lawmakers held a "lame duck" session to strip powers from the incoming governor and attorney general before they took office.

According to Shawn Johnson with Wisconsin Public Radio, today, a legal fight contesting one of the laws continues even as Democratic Gov. Tony Evers and Attorney General Josh Kaul have won reelection and are serving their second terms. The case was brought by Kaul, who is challenging parts of the lame duck laws limiting the power of his office to reach settlements in civil lawsuits.

It requires the state Department of Justice to get approval from the Legislature's budget committee, which is controlled by Republicans, to settle civil lawsuits and civil actions the department prosecutes on behalf of state agencies.

"Wisconsin's law is really unprecedented, even in comparison to other AG offices around the country," said Paul Nolette, a professor of political science at Marquette University who is an expert on state attorneys general. "From the AG's perspective, this really interferes with their work."

From the Legislature's perspective, Nolette said, the law was passed by Republicans at a time when they were unclear how Kaul would operate as attorney general. "So by passing these laws, it gives them a lot more control over the direction that the office goes in," Nolette said.

Lawsuits challenging the lame duck laws restricting the governor and attorney general have been pending somewhere in court since shortly after Evers and Kaul took office four years ago. The first lawsuit was filed in January of 2019, and by a month later, there were four lawsuits pending.

The Wisconsin Supreme Court weighed in on the challenges twice that year, first ruling the Legislature was within its right to convene the lame duck session and then siding with Republicans to reject what's known as a "facial" challenge to the laws.

The latter ruling meant that the laws did not by themselves violate the state constitution's separation of powers guarantee by infringing on the executive branch's authority. But justices did not close the door to another lawsuit challenging the laws as they've been applied, and in 2021, Kaul's Wisconsin Department of Justice filed a new lawsuit in Dane County Circuit Court.

It focused on the laws preventing the DOJ from settling civil cases or enforcement actions without first getting approval from the Joint Committee on Finance, which is run by Republicans.

Last year, Dane County Circuit Court Judge Susan Crawford sided with the DOJ, writing in her first of two orders last May that the Legislature had overstepped its bounds.

The Legislature appealed, arguing in an October brief that the DOJ was trying to revive issues already settled by the Wisconsin Supreme Court, and that lawmakers have a legitimate interest in overseeing DOJ settlements.

"The Legislature can constitutionally have a seat at the table when the Attorney General considers this kind of settlement, given that it implicates the Legislature’s constitutional power of the purse," wrote attorney Misha Tseytlin in a brief arguing on behalf of the Wisconsin Legislature.

In a reply brief filed last week, Kaul's DOJ disputed that idea, arguing the Legislature had claimed control over powers that rest squarely with the executive branch. As a practical matter, Nolette said there hasn't been much political benefit to Republicans when it comes to the law being challenged.

The budget committee has regularly approved settlements in the years since the law was passed. But Nolette said the prospect that the Legislature might intervene still exists, and that alone affects how Kaul is able to run his office.

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