Wisconsin Attorney General Josh Kaul, who said the power issues in Wisconsin mirrors current federal issues, at a press conference in December 2024. (Photo by: Baylor Spears/Wisconsin Examiner)

The Wisconsin Supreme Court heard arguments Wednesday in a case that could determine whether a law passed in 2018 that requires approval from legislators on civil settlements violates the separation of powers between the executive and legislative branches. 

The case — Josh Kaul v. Wisconsin State Legislature — is the latest in an ongoing legal struggle focused on the division of power between the Legislature and the executive branch.

A  law passed after Gov. Tony Evers and Attorney General Kaul were elected in 2018, but before they took office, gave the Legislature, through the Joint Finance Committee, the ability to sign off on and decide how to spend court settlement money. That had been a power traditionally held by the attorney general.

It was part of a slate of laws passed and signed by Republicans during the lame duck period just weeks before the new Democratic administration took power in 2019. The Joint Finance Committee has become the vehicle for lawmakers to maintain control over  actions that agencies take outside of the legislative process, and this is not the first lawsuit the state’s top court has heard on the issue.

The case made it to the state Supreme Court after Kaul appealed a 2024 decision by the Wisconsin Court of Appeals District II that overturned a favorable decision made in 2022 by Dane County judge and now Justice-elect Susan Crawford.

Kaul said at a press conference after the arguments that the actions Wisconsin Republicans have taken to strip power from the executive branch are similar to those being taken by Republicans at the federal level. 

“What we are seeing in these cases in Wisconsin in a lot of ways mirrors what’s going on with the federal government right now,” Kaul said. “At the federal level what we’re seeing is the executive branch trying to pull legislative power into its own hands and making decisions about how legislation should be applied or whether it should be applied. Here in Wisconsin what we saw instead was an effort to concentrate power in the Legislature.” 

Kaul said that checks and balances and “multiple different sources of authority within the government” are necessary to protect the “our freedom and our liberty.”

“That’s why we have three co-equal branches of government,” Kaul said. “This case is about supporting that principle and ensuring that the separation of powers remains strong here in Wisconsin.” 

During the arguments, Assistant Attorney General Hannah Jurss argued that the “executive branch has the power to execute the law” and the “Legislature’s constitutional power is to write the law.” 

In a 2019 case, the state Supreme Court ruled that the law was constitutional. However, in a brief, Jurrs argues that the decision was not a broad endorsement of the law, but only “located a few instances where the statutes could be applied constitutionally and went no further.” 

Jurrs argued the law is unconstitutional in part because there is no way for the executive to override a decision by the lawmakers, which has infringed on the executive branch’s work. The 2018 law has led to disputes between Kaul’s office and lawmakers over resolving cases involving state taxpayers. 

“Having this sword, the legislative committee sword,  hanging over our head infects our decision making at every stage and every action… whether to prosecute, how to prosecute. How to talk with our clients, when to pursue negotiation, and the terms,” Jurrs said. “We’ve presented 13 cases that [the committee] as a body never even convened to consider.” 

Jurrs called the legislative seizure of executive powers  an “unprecedented and unparalleled intrusion into execution of the law.” She also argued that it limits the ability for the attorney general to act in multi-state lawsuits. 

Jurrs said that if the law had been in place in the 1990s when the state negotiated a tobacco resolution it would have led to a more complicated situation. 

“Hey, 44 other states, we’re entering this gigantic resolution with the major tobacco companies. We know that everybody else has come to this agreement. It has to be really confidential, but excuse us, we’re gonna have to hold everything and we have to take this to a committee of our Legislature so that they can decide whether they want to rewrite this agreement or allow us to enter it or not,” Jurrs said.

Justice Rebecca Bradley expressed skepticism about Jurrs’ argument that the power should lie with the attorney general without the oversight of lawmakers. 

“The Legislature in the provision that you’re attacking has prescribed the powers and duties of the attorney general, which is to basically give… the Legislature a check-and-balance on what the attorney general is doing and what I find frightening is that one person gets to make all of the policy decisions under your argument about what is going to be done with what is the taxpayers money,” Bradley said. “It’s not the attorney general’s money.” 

Misha Tseytlin, the attorney representing the Legislature, argued that the statute serves as a check on the attorney general’s power and lawmakers have an interest in overseeing the money.

“It’s important to remember we’re talking about not the attorney general’s money, not the agency’s money, but the people’s money,” Tseytlin said. He said an example is the $420 million opioid settlement that was reached and approved by lawmakers on the Joint Finance Committee in 2021.  “The settlement was submitted to the Joint Finance committee, and it was approved by The Joint Finance committee. The Legislature in carrying out its constitutional duty to balance the budget of the state had to take into account all sorts of income, including that $420 million.”

Justice Rebecca Dallet questioned Tseytlin on how much power he was arguing lawmakers should have over funds. 

“Any source of income that comes into the Legislature they’ve got control of, so could the Legislature appoint a committee to return tax returns to make sure they are getting the money that they’re supposed to?” Dallet asked. “My point in asking the question… is where does this end? Every single dollar that comes in means the Legislature has total control… There is no role for executive power here.”