MADISON, Wis. — A unanimous Wisconsin Supreme Court sided with the Democratic state attorney general Tuesday in a long-running battle over a law passed by Republicans who wanted to weaken the office in a lame duck legislative session more than six years ago.
The court ruled 7-0 that requiring the attorney general to get permission from a Republican-controlled legislative committee to settle certain lawsuits was unconstitutional. The law is a separation of powers violation, the court said.
The Republican-controlled Legislature convened a session in December 2018 after Democratic Gov. Tony Evers and Democratic Attorney General Josh Kaul defeated Republican incumbents. The laws signed by Republican Gov. Scott Walker on his way out the door weakened powers of both offices.
At issue in the case decided Tuesday was the attorney general’s power to settle lawsuits involving environmental and consumer protection cases as well as cases involving the governor’s office and executive branch. The new law required the Legislature’s budget committee, which is controlled by Republicans, to sign off on those settlements.
The Wisconsin Supreme Court in 2020, when controlled by conservatives, upheld all of the lame duck laws and ruled they did not violate the separation of powers principle. But the ruling left the door open to future challenges on how the laws are applied.
Kaul sued that year, arguing that having to seek approval for those lawsuit settlements violates the separation of powers between the legislative and executive branches. The Legislature argued that lawmakers have an interest in overseeing the settlement of lawsuits and that the court’s earlier ruling saying there was no separation of powers violation should stand.
Dane County Circuit Judge Susan Crawford, who won election to the state Supreme Court in April and will be joining the court in August, ruled in favor of Kaul in 2022 saying the law was unconstitutional. A state appeals court overturned her ruling in December, saying there was no separation of powers violation because both the executive and legislative branches of government share the powers in question.
The Supreme Court on Tuesday said the Legislature cannot “assume for itself the power to execute a law it wrote.”
There is no constitutional justification for requiring the Legislature’s budget committee to sign off on court settlements at issue in the case, Justice Brian Hagedorn wrote for the court.
Kaul praised the ruling, saying in a statement that the decision “finally puts an end to the legislature’s unconstitutional involvement in the resolution of key categories of cases.”
Republican legislative leaders who defended the law had no immediate comment Tuesday.
The win for Kaul comes as Evers has been unsuccessful in overturning numerous law changes affecting the power of the governor. He’s proposed undoing the laws in all four state budgets he’s proposed and courts have upheld the laws when challenged.
