The Wisconsin Supreme Court ruled Friday that the Wisconsin Attorney General can determine where to send money the Department of Justice receives through settlement agreements. 

The 5-2 decision — which includes a partial concurrence from Justice Brian Hagedorn — strikes down a measure enacted by the Republican-controlled Legislature to take power from executive branch agencies after the elections of Democratic Gov. Tony Evers and Attorney General Josh Kaul in 2018. 

During that lame duck period at the end of a Republican administration, the Legislature enacted a law that requires the attorney general to deposit settlement money into the state’s general fund, which is largely controlled by the Legislature. However within the general fund are many sub-accounts through which many of the state’s programs and services are rendered. State law distinguishes between depositing money into the general fund and crediting money to specific programs. 

Since the lame duck law’s enactment, Kaul has put settlement earnings into the general fund and then credited the money to DOJ programs within the fund. The Legislature has argued that Kaul has been purposefully flouting the intent of the law, which was to give control over the money to legislative Republicans. 

The legal dispute in the case, including at the oral arguments in March, has flipped the usual script in which Republicans argue for laws to be interpreted strictly, following exactly what a statute says. 

“[The statute] entitled “Deposit of settlement funds,” provides in its entirety that ‘[t]he attorney general shall deposit all settlement funds into the general fund,’” Justice Rebecca Dallet wrote in the majority opinion. “This simple, declarative sentence identifies a class of state money (‘settlement funds’) and imposes a single, narrow restriction on where that money must be deposited (into the state treasury, specifically ‘the general fund’). It says nothing whatsoever about where that money may or must be credited after it is deposited.”

Dallet continued that the Court wasn’t buying the Legislature’s argument that a deeper meaning should be read into the language.

Quoting the Court’s precedent, Dallet wrote, “The problem with these arguments is that ‘we interpret the statutory language the legislature enacted, and will not read into a statute language that it does not contain or reasonably imply.’” 

In a dissent, Justice Rebecca Bradley, partially joined by Annette Ziegler — both of whom signed off on many of the lame duck laws and their specific intent to disempower Democrats — argued that the Court’s majority was only aiming to give a legal victory to an elected Democrat in an election year.

“The majority refuses to apply the law, which favors the Republican-controlled legislature over Democrat Attorney General Josh Kaul. Lady Justice wears a blindfold, not blinders,” Bradley wrote in an opinion that also cited the 2004 film “Dodgeball.” “This is not the first time justice has taken a back seat to political interests. The members of the majority extend the Democrats’ almost unbroken winning streak in litigation against the Republican legislature since the progressives took control.”

In a 5-2 decision, the Wisconsin Supreme Court ruled Tuesday that an activist group does not have the right to obtain the documents that notify election officials when someone is declared incompetent to vote by a circuit court judge. 

The group, Wisconsin Voter Alliance, has been extremely active in the state’s election denial circles since the 2020 presidential election. The organization is run by Ron Heuer, a prominent and vocal 2020 election conspiracy theorist, and Erick Kaardal, an attorney who was heavily involved in former Supreme Court Justice Michael Gableman’s widely discredited review of the 2020 presidential election. 

Kaardal’s involvement in the Gableman review included conducting videotaped interviews with residents of nursing homes alleged to have voted despite being old that were criticized at the time as exploitative and misleading about the law. 

Following that thread from the Gableman investigation, in 2022 the alliance filed open records requests in a number of counties seeking the notice of voting eligibility forms that circuit courts send to local and state election officials when a judge declares a person incompetent and ineligible to vote. The group then sued to force the release of those documents. 

The statute guiding declarations of incompetency and the process through which a person declared incompetent can lose their voting rights includes a provision that states court records “pertinent to the finding of incompetency” are closed. 

In the majority opinion written by Justice Janet Protasiewicz and joined by the other three liberal justices plus conservative Justice Brian Hagedorn, the Court ruled that the NVE form is created as part of a guardianship case, therefore it’s pertinent to the finding of incompetency and shielded from public disclosure. 

Protasiewicz wrote that the Legislature crafted the guardianship law specifically to prevent information about people who have been declared incompetent from being made public — so it doesn’t make sense to interpret that law in a way that exposes those people’s status and private information. Additionally, the law specifically requires that someone must prove they have a legitimate “need” to find out if a person has been declared incompetent.

“The legislature created a procedure with ‘closed’ hearings and ‘closed’ records,” she wrote. “That provision would ring hollow if the fruits of those proceedings, like NVE forms, were available through public records requests. Even more revealing, a person who demonstrates ‘a need’ may access ‘[t]he fact that an individual has been found incompetent.’ Thus, the Legislature contemplated that even the fact that a person was found incompetent should be protected. We will not interpret the preceding sentence of [the statute] to allow any public records requester access to a form that gives away that very fact.” 

In a dissent, Justice Annette Ziegler, joined by Justice Rebecca Bradley, argued that because a judge determines if someone under guardianship must lose their vote separately from the initial declaration of incompetency and because the information gets communicated to election officials, the NVE is not “pertinent” to the incompetency finding and the public must be given access. 

“Even when an individual is found to be incompetent, a court may or may not be called upon to determine if the ward is ‘incapable of understanding the objective of the elective process,’” Ziegler wrote. “If and when such a determination is separately found, then NVEs are created to notify the WEC that the ward has lost the right to vote. But, the NVEs do not bear on the court’s separate, earlier finding of incompetency. And, as the NVE does not exist at the time of the incompetency finding, it could not be a court record pertinent to the finding of incompetency. Instead, an NVE is generated only after the incompetency finding is made and in response to the separate question of the right to vote.” 

Both Ziegler and Bradley have often sided with Wisconsin’s election deniers — including voting in late 2020 to overturn the results of Wisconsin’s presidential election after former President Joe Biden won in the state over  President Donald Trump. In the dissent, Ziegler echoed frequent right-wing talking points about “the integrity of the election process” and wrote that members of the public have the right to interrogate if their fellow citizens are eligible to vote. 

“The public records law declares that ‘a representative government is dependent upon an informed electorate’ and that the public is entitled to the ‘greatest possible information regarding the affairs of government,’” she wrote. “That policy carries particular force here, where the records at issue bear directly on everyone’s voting rights and its administration. Undoubtedly, the public has a significant interest in ensuring that only those legally qualified to vote participate in elections. Improper ballots not only raise concerns of individual exploitation but also implicate the integrity of the electoral process as a whole.”

Following the decision, voting rights advocates celebrated the majority’s decision to protect voter privacy. 

“Like all Wisconsinites, individuals under guardianship deserve dignity and respect,” Law Forward Legal Fellow Taylor Gilbertson said in a statement. “It should go without saying that any effort to reveal their private voting records would risk a profound injustice. The Court was right to protect them.”