MADISON – Gov. Tony Evers and Attorney General Josh Kaul sued state lawmakers Monday, bringing a new challenge to a set of lame-duck laws Republicans passed two years ago to curb their powers.
The latest case focuses on a requirement that the Legislature’s budget committee sign off on some court settlements negotiated by Kaul.
Evers and Kaul argue that the policy violates the state constitution’s separation-of-powers doctrine, which spells out what authorities belong to the executive and legislative branches of government.
With the lawsuit, the state’s top two Democrats are trying to resolve an issue that has remained elusive during the first half of their terms in office.
In a ruling this summer, the state Supreme Court found the settlement provision does not violate the state constitution in all situations but left open the possibility that it might some of the time. The new, narrower lawsuit asks the high court to rule that two classes of cases should be exempt from the requirement to get approval from lawmakers.
It’s the sixth lawsuit related to the lame-duck laws passed by Republican lawmakers in December 2018 — after Evers and Kaul were elected, but before they were sworn into office. In other cases, courts have largely upheld the lame-duck laws but chipped away at them this summer.
The new lawsuit argues the lame-duck laws violate the state constitution by requiring Kaul to get the Legislature’s Joint Finance Committee to approve settlements in cases when Kaul is enforcing environmental laws and consumer-protection laws, or when he is representing state agencies in breach-of-contract cases and similar matters.
The executive branch alone should be involved in those types of cases, he and Evers argue.
The two named the Legislature, the Joint Finance Committee and top GOP legislative leaders in their lawsuit. They filed it directly with the state Supreme Court instead of going to a circuit court, as typically happens.
Aides to Assembly Speaker Robin Vos of Rochester and Senate Majority Leader Scott Fitzgerald of Juneau did not respond to questions about the lawsuit.
The case is a sequel to a lawsuit brought by labor unions that challenged a broad swath of the lame-duck laws. In that case, the Supreme Court in July upheld most of the lame-duck laws and threw out a provision that would have overhauled how government documents had to be written.
Court left avenue for challenges
As part of that ruling, the conservative-led state Supreme Court left open an avenue for future challenges to the lame-duck law’s settlement provisions.
“It’s just not a case where the issues are conservative or liberal,” Kaul said in an interview with the Milwaukee Journal Sentinel. “It’s a separation-of-powers case.”
Requiring prior approval for settlements creates the risk that the state will miss out on favorable deals, according to an affidavit from Corey Finkelmeyer, the deputy administrator of legal services at the state Department of Justice.
“Complex cases, especially multistate cases featuring multiple plaintiffs and defendants, typically involve settlement negotiations that require an ability to act on very short notice,” he wrote in his affidavit.
Sometimes deals are cut within a matter of days and other times judges demand that the state and its adversary in court engage in negotiations on the eve of a trial. In those situations, there is no time to get the budget committee to consider settlements, Finkelmeyer wrote.
In some cases, the Joint Finance Committee has waited weeks or months to schedule meetings related to settlements. For instance, it has yet to take up three proposed settlements it received nearly two months ago.
Further complicating the issue is how to keep private and strategic information confidential. Republican lawmakers have declined to sign agreements to keep information confidential, and Kaul has refrained from giving them that information in some situations because he fears it will hurt the state’s chances at securing a good deal.
“The Department loses leverage when its settlement range is disclosed,” Finkelmeyer wrote in his affidavit. “If the other side knows that range, it can simply hold out for the lowest amount. The same happens if the Department publicly discloses its assessment of a case’s strengths and weaknesses: the opposing party may use that information to insist on a lower settlement amount or lose interest in negotiating at all.”
Officials in other states have suggested they may not want Wisconsin to participate in future multistate lawsuits because of how the lame-duck laws are affecting the ability to reach settlements, according to Finkelmeyer.
Contact Patrick Marley at email@example.com. Follow him on Twitter at @patrickdmarley.