Judge finds lame-duck settlement language unconstitutional

MADISON, Wis. (AP) — Provisions in contentious Wisconsin lame-duck legislation that require Democratic Attorney General Josh Kaul to get Republican lawmakers’ permission to settle certain lawsuits are unconstitutional, a judge has ruled.

The Wisconsin State Journal reported recently that Dane County Circuit Judge Susan Crawford handed down her ruling on May 5. Crawford put the decision on hold while the Legislature’s attorney prepares a stay request. The case is likely headed to the state Supreme Court.

Republican legislators passed measures during a December 2018 lame-duck session that require Kaul to seek approval from the Legislature’s finance committee before settling cases. Republicans control the committee. The laws also weakened Democratic Gov. Tony Evers’ powers. The GOP passed them weeks before Evers and Kaul took office.

A group of labor unions challenged the statutes affecting Kaul in 2019. The state Supreme Court upheld them in a July 2020 ruling but left the door open to future challenges. Kaul filed one in November 2020, arguing the settlement approval requirements are unconstitutional as applied to civil lawsuits involving environmental and consumer protection cases as well as cases involving the executive branch. The attorney general argued the law in those instances violates the separation of
powers between the legislative and executive branches.

Kaul asked the state Supreme Court to take the case directly without waiting for it to wind through lower courts but the justices refused. Kaul took the case to Dane County Circuit Court last summer.

Crawford wrote that the laws give “absolute power” to the Legislature. Lawmakers’ ability to approve or reject a settlement proposal effectively operates as a veto with no override mechanism, she wrote.

Crawford put her decision on hold while Republican legislators prepare a motion requesting a stay. The case likely will end up before the state Supreme Court again.