Yesterday, Governor Tony Evers and Wisconsin Attorney General Josh Kaul sued state lawmakers in a new attempt to overturn lame-duck laws passed by Republicans two years ago.
The suit, which was filed yesterday, is another challenge to last-minute legislation passed in 2018, when a Republican-led legislature rushed to change laws to take authority away from an incoming Democratic executive.
This lawsuit argues the Wisconsin Department of Justice has the authority to pursue civil litigation on its own. It’s a challenge to a 2018 law that says Kaul and the DOJ must seek approval from the legislature’s Joint Finance Committee to settle particular civil cases.
Kaul, Evers and Department of Administration Secretary Joel Brennan, the third petitioner in the case, argue shifting that authority to the legislative branch from the executive branch constitutes a breach of the state’s separation of powers.
In December 2018, the Republican-controlled legislature passed a series of “lame duck” laws designed to strip Evers and his incoming Democratic administration of authority — while bolstering that of the Republican legislature, which sped the bills to passage after Evers had been elected, but before he took office.
This isn’t the first time the state’s lame-duck laws have been challenged — yesterday’s suit is the sixth since the laws were passed. In July, the Wisconsin Supreme Court upheld the settlement policy, alongside several other lame-duck laws, but did acknowledge that there were instances where the rule doesn’t apply.
And this could be one of those instances. The state high court did not offer further clarification — hence the new, narrower suit.
Timothy Hawks represented the plaintiffs in this summer’s case — including SEIU Local 1 and other unions. He says that Kaul’s current challenge has potential to succeed because it targets particular statutes of the law, as opposed to attempting a wholesale takedown of the act.
“It may not result in the entire elimination of that provision or having it struck down,” he says. “All that he’s calling for is the Supreme Court to say ‘Hey, your exercise of the power implied by this statute unconstitutionally infringes on the executive’s power.’ Do that, argue, win, repeat. Do that, argue, win, repeat. This is a struggle that will continue for decades.”
The plaintiffs in Monday’s suit are targeting two categories of civil actions that require approval from the Joint Finance Committee before a settlement can be reached. The first concerns environmental and consumer protection laws.
The second concerns cases where Kaul is representing Wisconsin governmental departments and agencies in breach-of-contract violations and other disputes with vendors and private citizens.
The plaintiffs argue that seeking legislative approval on settlements can dramatically bog down the negotiation process. In an affidavit filed alongside the suit, Corey Finkelmeyer, Deputy Administrator for the DOJ’s Division of Legal Services, says that the Joint Finance Committee lacks the ability to act on short notice.
He wrote that “most recently, on September 30, the Department asked the Committee to consider three potential settlements. As of today, JCF has not met or set a hearing on those proposals.”
Finkelmeyer also wrote that Wisconsin’s inability to move with speed in litigation could hinder or outright bar Kaul from participating in future, multi-state lawsuits.
Kaul, Evers and Brennan have filed the case directly before the state’s high court, leapfrogging the state’s lower circuit courts. The Wisconsin Supreme Court, which has a slim 4-3 conservative majority, has not yet announced whether or not they’ll pick up the suit.
(Photo: Chali Pittman)
