MADISON, Wis. (CN) - The Wisconsin Supreme Court on Tuesday overturned a 2018 law giving the state Legislature final say on civil lawsuits over the attorney general, unanimously finding it violates the separation of powers.

In 2018, the Republican-controlled Wisconsin Legislature pushed through a package of bills intended to limit the powers of incoming Democratic Governor Tony Evers and Attorney General Josh Kaul in an overnight lame-duck session.

Among other provisions, the package shifted the power of approving civil settlements involving the state from the attorney general to the Joint Committee on Finance, also controlled by state Republicans.

The language of the law, which was passed just before Kaul took office, requires the attorney general to seek approval from the finance committee before finalizing major settlements. This created a sticky situation for Kaul, who must answer to voters if those settlements go awry.

Kaul and Evers filed a constitutional challenge to the policy in 2021, claiming it violates the separation of powers doctrine of the Wisconsin Constitution in two specific types of cases: civil enforcement actions brought under statutes that the attorney general is tasked with enforcing - such as environmental or consumer protection laws - and civil actions brought by the attorney general on behalf of executive branch agencies.

A Dane County Circuit Court judge found the law unconstitutional before the appeals court subsequently reinstated it. The case made its way to the Wisconsin Supreme Court, which heard oral arguments in April.

On Tuesday, the state's high court unanimously sided with Kaul and found that the Legislature does not have a legitimate constitutional interest in the specific categories of cases that were brought before the court.

"Just because the Legislature establishes the scope of the attorney general's litigation powers does not mean that it can assume the execution of those powers itself," Justice Brian Hagedorn wrote in the unanimous opinion.

Ultimately, the Legislature failed to offer one example case within the two categories Kaul brought in this lawsuit where the body had a constitutional interest, according to Hagedorn.

The Legislature argued in April that it has an institutional interest in revenue generation from settlement agreements because of its duty to levy taxes. In other words, the Legislature's constitutional "power of the purse" gives them authority over settlement dollars.

The justices were not convinced by this argument then, and Hagedorn reiterated many of the same concerns in Tuesday's opinion.

"This doesn't make sense," Hagedorn said. "While undoubtedly the Legislature would be wise to account for all sources of income ... it does not follow that the Legislature has a constitutional interest in controlling every executive function involving the collection of revenue, or even taxes."

Hagedorn suggests that the Legislature draw up statutes directing money to certain funds or addressing how settlements can be written, rather than overstepping into the executive's duty to faithfully execute the laws.

In fact, the Legislature did amend the 2018 package of laws to include a requirement that settlement funds be placed in the general fund, which Kaul dodged and was ordered in 2024 by the appellate court to obey.

SEIU v. Vos, litigated in 2020, was the first time the 2018 package of laws was challenged. In that case, a union argued that the statute is unconstitutional in all its applications.

The Wisconsin Supreme Court recognized there that litigation on behalf of the state is an executive power, but that there are at least some cases in which the Legislature may have a constitutional interest to justify the approval requirement. The court left the door open on challenges to specific types of settlements.

One year later, this case was brought with a much narrower scope.  

Tuesday's opinion upholds Justice-elect Susan Crawford's circuit court decision that the Legislature is overreaching. Crawford was elected to the high court in April and her term begins in August. 

"This unanimous ruling finally puts an end to the Legislature's unconstitutional involvement in the resolution of key categories of cases," Kaul said in a statement on Tuesday. "As a result, the Wisconsin Department of Justice will be able to more efficiently resolve the cases that are impacted by this decision."

In a press conference held in April, Kaul drew comparison between state and federal separation of powers to support his view that the Legislature is overreaching into executive powers promised by the state constitution.

"What we are seeing in these cases in Wisconsin, in a lot of ways, mirrors what's going on in the federal government right now," Kaul said. "At the federal level what we're seeing is the executive branch trying to hold legislative powers in its own hands. This case is about ensuring that separation of powers remains strong in Wisconsin."

Source: Courthouse News Service