State Supreme Court Dismisses AG’s Lame-Duck Lawsuit

The Wisconsin Supreme Court denied a petition from Attorney General Josh Kaul on Wednesday evening requesting that the court hear the case Kaul v. Wisconsin State Legislature, which sought to overturn parts of the December 2018 lame-duck laws giving the Legislature control over settlement decisions in some lawsuits involving the state.

Kaul filed his request for original action last November, arguing that a law passed by the Legislature and signed by then-Gov. Scott Walker violated the Wisconsin constitution’s separation of powers. The law requires the Justice Department seek approval from the Joint Finance Committee before settling lawsuits, giving the Legislature what Kaul called a “fundamentally unconstitutional role” overseeing the actions of the executive branch.

Republican legislative leaders filed a cross petition also asking the court to weigh in on the separation of powers issue and on whether the law requires the attorney general to deposit all settlement money into a general fund.

The court denied both the original action request and the cross-claim, noting that issues in the cross petition “are duplicative of issues that some of the same legislative leaders raised in a previous original action petition denied by this court” and citing the September 2020 order rejecting the lawsuit Vos v. Kaul.

The Wisconsin Supreme Court had previously upheld parts of the lame-duck laws but did not take a position on whether limits on Department of Justice lawsuits violated separation of powers.

The court’s rejection of the case, said attorney Jeffrey Mandell of the nonprofit firm Law Forward, “appears to continue a recent pattern at the Wisconsin Supreme Court. After a couple of years in which the Court accepted an unprecedented number of original actions—cases where the Supreme Court acts as the first and final decider—the Court seems to be returning to established procedures under which trial courts decide cases and appellate courts review those decisions.”

“Such a return may frustrate those in a rush to resolve a specific case,” said Mandell, who has represented the administration of Gov. Tony Evers in previous lawsuits against Republican legislative leaders, “but following legal process is good for the rule of law.”

Kaul now has the option to file his lawsuit in circuit court.

Reprinted with permission of Wisconsin Examiner.