A relatively new law, requiring the Wisconsin Department of Justice (DOJ) to seek legislative approval to settle or discontinue a civil action, is facing a legal challenge brought by Attorney General (AG) Josh Kaul. Enacted in December 2018 during a “lame-duck” extraordinary session, 2017 Wisconsin Act 369 granted the review power to the Legislature’s budget-writing Joint Committee on Finance. At the time, Gov. Scott Walker and AG Brad Schimel, both Republicans, were serving their final months in office before turning the reins over to the current incumbents, Democrats Gov. Tony Evers and AG Kaul.

Last year, AG Kaul sued the Legislature to challenge the provision, arguing that requiring legislative oversight over the disposition of certain civil actions violates the separation of powers established by the Wisconsin Constitution. Specifically, the attorney general argued that Act 369 is unconstitutional as applied to:

• “Civil enforcement actions brought under statutes that the Attorney General is charged with enforcing, such as environmental or consumer protection laws” and
• “Civil actions the Department [of Justice] prosecutes on behalf of executive-branch agencies relating to the administration of the statutory programs they execute, such as common law tort and breach of contract actions.”

Dane County Circuit Court Judge Susan Crawford issued a decision on May 5 granting summary judgement to AG Kaul with respect to the first category of cases and ordering further proceedings as to the second category. The judge also temporarily stayed her decision, so the law will remain in effect while legal proceedings continue. A spokesperson for Assembly Speaker Robin Vos (R-Burlington) indicated that Republican legislative leaders will appeal the decision.

Earlier this year, a circuit judge in Polk County considered a related case filed by the Legislature and Republican attorney general candidate Adam Jarchow. The plaintiffs asked the court to compel AG Kaul to follow the civil settlement provisions in Act 369. In a bench ruling, the judge granted some motions sought by both parties, but has yet to file a final written decision. A notice of appeal has been filed.

Because similar cases on the same issue are now in multiple jurisdictions, there is a strong possibility that the Wisconsin Supreme Court will eventually resolve the matter. Last year, the state’s high court rejected a petition from AG Kaul to bypass the lower courts and hear the case directly (known as an “original action”), effectively allowing the legal issues to be considered and developed by lower courts.

Several other lawsuits have addressed the legality of Act 369, a broad package of policies affecting various parts of state government including not just DOJ and the attorney general but also administrative rulemaking, election law, economic development, and more. The Wisconsin Supreme Court decided a case in 2019 challenging the process by which the law was enacted, and another in 2020 arguing that the law is facially unconstitutional. In both cases, the state’s high court upheld Act 369.