Category: Attorney General

Legislature Files Lawsuit Against AG to Enforce Extraordinary Session Laws

Posted on by Hamilton

Republican legislative leadership have filed a petition for original action in the Wisconsin Supreme Court, seeking to enforce sections of the 2018 extraordinary legislation that provide legislative oversight to attorney general settlements.

The Legislature’s petition and memo in support state that Attorney General Josh Kaul reads the 2017 Act 369 settlement review provisions as not applicable to settlements involving pre-lawsuit negotiations and decisions not to file timely notices of appeal, unless the decisions result from settlement agreements. The petition asks the Supreme Court to determine whether, under Act 369, the attorney general must get approval from the Joint Finance Committee and deposit any settlement funds into the general fund for these types of cases. 

The lawsuit comes after the Supreme Court affirmed in League of Women Voters v. Evers the constitutionality of the legislature meeting in extraordinary session to pass the legislation in December 2018. Another pending case at the Supreme Court, SEIU v. Vos, will decide whether the legislation itself is constitutional. In June, the Supreme Court reinstated the laws after a Dane County Circuit Court had issued a temporary injunction.

Read more about litigation related to the 2018 extraordinary session.

 

Wisconsin AG Joins Lawsuit to Block T-Mobile-Sprint Merger, Other Multistate Actions

Posted on by Hamilton

On June 11, Wisconsin Attorney General Josh Kaul joined eight other states and Washington, D.C. in a civil antitrust lawsuit to block the proposed merger of wireless communication companies T-Mobile and Sprint.

The complaint argues that combining the market share of T-Mobile and Sprint would result in less competition, higher prices, and reduced innovation. The state attorneys general allege the merger is in violation of the Clayton Act, the federal antitrust law prohibiting mergers that substantially lessen competition. Therefore, the U.S. District Court for the Southern District of New York should permanently enjoin the merger and award the plaintiff states fees and costs.

T-Mobile and Sprint agreed to merge in 2018. As part of the merger, the companies have made commitments to the Federal Communications Commission (FCC) that the newly merged company would work to deploy 5G technology and broadband, including in rural areas. The companies also committed to keeping rates the same or better for three years after the merger.

The FCC has not yet approved the merger, though some commissioners have announced their support. The federal Department of Justice is expected to issue a decision on the merger soon. T-Mobile and Sprint had hoped to close the deal by July 2019, but the state attorneys general lawsuit could cause a delay.

Wisconsin DOJ press release

On June 12, Attorney General Kaul also signed onto two additional multistate attorneys general actions. Kaul joined 43 state attorneys general in comments urging the Federal Trade Commission to develop antitrust policies for major tech companies like Facebook, Google, and Amazon, suggesting prior approval of acquisitions and transparency requirements. Kaul also joined a coalition of 20 states in an amicus brief in Sierra Club et al. v. Trump et al. The brief opposes the federal government’s motion to stay a preliminary injunction blocking the use of federal funds diverted to construct a border wall in New Mexico and Arizona.

DOJ Restructuring to Focus on Environmental Enforcement

Posted on by Hamilton

On May 23, Attorney General Josh Kaul announced a restructuring at the Department of Justice (DOJ) that will allow for more environmental enforcement. The restructuring merges DOJ’s Environmental Protection Unit and Consumer Protection Unit under a single Public Protection Unit. Kaul said the new unit is “a step toward revitalizing the enforcement of our consumer protection and environmental laws.”

The new Public Protection Unit will have a single director, allowing DOJ to shift the open position of a second unit director to a new environmental attorney. Under the restructuring, there will be a total of six attorneys assigned to environmental cases, plus a combined staff available to work on both environmental and consumer protection cases.

Legislature to Intervene in Act 21 Cases

Posted on by Hamilton

The Legislature’s Joint Committee on Legislative Organization has voted to intervene in two cases addressing the application of 2011 Act 21. The 2011 legislation clarified that agencies may not enforce requirements unless explicitly permitted by statute or properly promulgated rule. The two cases, both titled Clean Wisconsin, Inc. v. DNR, would clarify the general scope of Act 21 in environmental cases.

One case (appeal no. 2018AP59) will decide whether Act 21 precludes the Department of Natural Resources (DNR) from considering cumulative environmental impacts in issuing high capacity well permits under Wis. Stat. § 281.34. DNR argues that Act 21 prevents the agency from considering environmental impacts not specifically noted in the statutes. DNR’s argument relies on a May 2016 formal opinion from former Attorney General Brad Schimel.

Clean Wisconsin argues that the 2011 Supreme Court decision Lake Beulah Management District v. DNR still holds. Lake Beulah broadly held that DNR has the authority to preserve waters of the state under the constitutional and statutory public trust doctrines. Since the Supreme Court decided Lake Beulah after the enactment of Act 21 but declined to address the Act’s bearing on the case, a decision in the Clean Wisconsin case would clarify DNR’s authority on high capacity well permits.

The second case (consolidated appeal nos. 2016AP1688 and 2016AP2502) will decide whether DNR has the authority to impose off-site groundwater monitoring requirements and an animal maximum for CAFO wastewater permits. In this case, Clean Wisconsin argues that a Wisconsin Pollution Discharge Elimination System permit allowing the expansion of Kinnard Farms CAFO in Kewaunee County should have included these restrictions. DNR argues Act 21 prohibits DNR from imposing the permit conditions because the statutes do not grant the agency explicit authority.

The Supreme Court accepted both Clean Wisconsin appeals on April 9 and stated it will hear oral arguments on the cases on the same date (not yet scheduled). Several business groups are participating as amici curiae and intervenors in the cases.

Previously, the Department of Justice (DOJ) sided with DNR in both cases. However, Attorney General Josh Kaul has filed two motions seeking to change DOJ’s position on the cases.

Extraordinary Session Litigation Update

Posted on by Hamilton

Several ongoing cases seeking to void the 2018 extraordinary session legislation are moving through Wisconsin and federal courts. This article provides background on each of the cases and updates on where each of the cases are in the legal process.

League of Women Voters v. Evers

Status

6/21/19: In a 4-3 decision the Wisconsin Supreme Court ruled the Legislature’s 2018 extraordinary session was constitutional, upholding 2017 Acts 368, 369, and 370 and the confirmation of 82 appointments.  

5/15/19: The Wisconsin Supreme Court held oral arguments in League of Women Voters v. Evers. 

4/30/19: In a 4-3 decision, the Wisconsin Supreme Court restored the 82 appointments that Gov. Tony Evers had rescinded under the initial circuit court injunction.

4/15/19: The Wisconsin Supreme Court accepted the League of Women Voters’s petition to bypass the Court of Appeals. The Supreme Court will hold oral arguments on May 15.

4/15/19: Gov. Tony Evers filed a brief in opposition to the Legislature’s motion for emergency temporary relief.

4/10/19: The Legislature has filed a motion asking the Wisconsin Supreme Court to take original jurisdiction over the case or, alternatively, to immediately reinstate the rescinded appointments.

4/9/19: The appeals court denied the Legislature’s motion to enforce the stay, arguing Gov. Tony Evers’s withdrawal of the appointments was valid because the governor had the authority to rescind the appointments while the temporary injunction was in place.

4/3/19: The plaintiff League of Women Voters petitioned the Wisconsin Supreme Court to bypass the Court of Appeals, arguing the case presents novel questions of state constitutional law, and only the Supreme Court can provide a definitive resolution.

4/1/19: Due to the disagreement between Gov. Tony Evers’s administration and the defendant legislature as to whether the appointees who had been rescinded are now reinstated, the legislature filed an expedited motion to enforce the court of appeals stay after the administration prevented appointees from returning to work the day after the court issued the stay.

3/27/19: The Court of Appeals District III has issued a stay of the temporary injunction issued by a Dane County circuit court. The Dane County judge had ordered the injunction of 82 appointments confirmed in the extraordinary session and the extraordinary session laws in their entirety. The appeals court order reasons that the Dane County circuit court failed to evaluate the irreparable harm that could result from enjoining the legislation if it is later found valid. The order stays the temporary injunction and establishes an expedited appeal process with all briefs due by the end of April.

Background

The plaintiffs argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).

The Legislature intervened as a defendant and argues that convening an extraordinary session does not violate the Wisconsin Constitution because the rules for the 2017-18 session prescribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. Therefore, the Legislature met as provided by law under the Constitution and Wis. Stat. § 13.02(3).

SEIU v. Vos

Status

10/21/19: The Wisconsin Supreme Court held oral arguments in SIEU v. Vos.

6/11/19: The Wisconsin Supreme Court granted the defendant Legislature’s motion for temporary relief pending appeal by staying the temporary injunction issued by the Dane County Circuit Court. However, the Supreme Court left in place the injunction on Act 369 provisions that would have rescinded improperly promulgated guidance documents on July 1, 2019. Additionally, the Supreme Court stayed proceedings on the case in the lower court, cancelling the trial on guidance document provisions of Act 369 set to begin in Dane County on June 12. Read more. 

4/19/19: The Wisconsin Supreme Court assumed jurisdiction of this case, several weeks after a second Dane County judge issued a temporary injunction preventing enforcement of some extraordinary session legislation provisions requiring legislative approval for the attorney general to discontinue or settle cases, requiring transparency for agency guidance documents, and allowing for more legislative oversight of agency rulemaking, while leaving in place other portions of the laws. The defendant legislature had also appealed this injunction, but the court of appeals had not provided a ruling before the Supreme Court assumed the case.

Whereas the League of Women Voters order enjoined the extraordinary session laws in their entirety, the SEIU circuit court order found the plaintiffs did not establish sufficiently that a court would find other provisions unconstitutional. Specifically, the SEIU circuit court judge left in place provisions

  • Allowing the legislature to intervene and use outside counsel in certain cases.
  • Allowing the Wisconsin Economic Development Corporation to designate an unlimited number of enterprise zones, but requiring approval of the Joint Finance Committee on any new zone.
  • Requiring legislative oversight of agencies applying for federal waivers and seeking to reallocate funds.

Background

The plaintiffs, Service Employees International Union, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers-Wisconsin, and Milwaukee Area Service and Hospitality Workers, allege that the extraordinary session laws are an unconstitutional violation of the separation of powers doctrine.

According to the plaintiffs, Article V of the Wisconsin Constitution gives the governor the exclusive power to execute laws. Furthermore, Article V guarantees that one branch may not interfere with another branch’s powers. The plaintiffs allege that extraordinary session provisions, including increased legislative oversight of rulemaking, attorney general lawsuits, and agency appropriations, interfere with the governor’s and attorney general’s constitutional powers. Furthermore, committee oversight without opportunity for a governor veto violates constitutional separation of powers.

The defendant legislature argues that the Wisconsin Constitution explicitly allows the legislature to prescribe the powers of the attorney general. Furthermore, Wisconsin case law has interpreted the Constitution as a fluid rather than rigid political design of separate branches of government.

Democratic Party of Wisconsin v. Vos

Status

The Democratic Party of Wisconsin (DPW) has filed a complaint in the U.S. District Court Western District of Wisconsin seeking to declare the extraordinary session legislation in violation of the U.S. Constitution. Parties are continuing to brief the case, and oral arguments will be held on April 26.

Background

The complaint alleges that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause.

The U.S. Constitution Art. 4 § 4 guarantees states a republican form of government. DPW’s complaint alleges that the Republican legislature violated the Guarantee Clause by removing powers from the incoming Democratic administration to the legislature.

DPW also claims that the extraordinary session violated the plaintiffs’ First Amendment rights to free association and free speech because the state legislature retaliated against Democratic candidates based on their political viewpoints by limiting their ability to enact their policy preferences via the newly elected Democratic Gov. Tony Evers and Attorney General Josh Kaul.

Finally, DPW argues the legislation violates the Fourteenth Amendment’s Equal Protection Clause because it dilutes the power of Democratic votes.

Gov. Evers Budget Would Restore Qui Tam, Reverse Extraordinary Session

Posted on by Hamilton

In his 2019-21 state budget address, Gov. Tony Evers proposed several reforms related to Wisconsin civil procedure. Most notably, the governor is seeking to restore private individuals’ ability to bring qui tam claims by reviving the False Claims Act. WCJC supported the repeal of the False Claims Act in the 2015-16 state budget. Read about the budget proposal’s qui tam provisions and other notable budget provisions below.

 

Qui tam

 Qui tam claims are claims initiated by private individuals on their own behalf and on behalf of the state. Prior to the 2015-16 budget repeal, Wisconsin’s False Claims Act allowed private individuals to bring qui tam claims against persons who make false claims for Medical Assistance. Evers’s proposal goes even further than Wisconsin’s previous qui tam law by applying the law not only to Medicaid fraud and but to all state agencies. The Wisconsin Civil Justice Council helped repeal the law in 2015 and will work hard to ensure that it is not enacted back into law. Read more about the budget’s qui tam provision.

 

Extraordinary session

Evers is proposing the repeal of parts of the 2018 extraordinary session legislation. Evers suggests a full repeal of Act 370 which gives the legislature oversight of agency waiver requests, allows Joint Finance Committee oversight of Medicaid program changes, and codifies Medicaid work requirements and substance abuse screening for FoodShare.

Evers also proposes repealing provisions of Act 369 including:

  • The requirement that the legislature approve settlements by the attorney general.
  • The requirement that the attorney general deposit all settlement funds into the general fund.
  • The ability of the legislature to intervene in lawsuits involving the state.
  • The ability of the legislature to obtain outside legal counsel.
  • The definition and public transparency requirements for agency guidance documents.
  • The requirement that agencies cite statutes supporting any interpretation of law they publicly provide.

 

Settlement funds

In addition to eliminating the current requirement that all settlement funds go to the general fund, Evers proposes new appropriations for settlement funds in DOJ. These new appropriations include:

  • An appropriation to administer and remit payments received by DOJ that are owed to relators (i.e. in qui tam actions).
  • An appropriation to administer settlement funds where the terms of the settlement specify how the funds should be used.
  • An appropriation to administer settlement funds where the terms of the settlement do not specify how the funds should be used. This appropriation may be used in DOJ at the attorney general’s discretion.
  • A requirement that DOJ submit semiannual reports to the Joint Finance Committee on how settlement funds are spent.

 

Judicial Council

Evers’s budget proposal does not restore funding or position authority to the Judicial Council. Former Gov. Scott Walker defunded the Judicial Council in the 2017-19 state budget after the Supreme Court sent an orderto DOA that it will no longer transfer funds to DOA in support of the Judicial Council. While the Judicial Council lacks funding, the statute (Wis. Stat. § 20.670) creating the Judicial Council remains in place.

The Judicial Council’s proposed budget details performance measures and results from 2017 continuing into 2021. The Judicial Council’s goals for 2019, 2020, and 2021 include:

  • Drafting and filing a Supreme Court petition to update rules regarding duty to preserve evidence in civil case.
  • Reviewing ways to incorporate Federal Rules of Evidence into Wisconsin’s rules.
  • Review modifications to the Rules of Civil Procedure created by 2017 Act 235 to update the act with Federal Rules of Civil Procedure. WCJC supported Act 235 in the 2017-18 session.

DPW Files Extraordinary Session Challenge

Posted on by Hamilton

The Democratic Party of Wisconsin (DPW) has filed a complaint seeking to declare the 2018 extraordinary session legislation in violation of the U.S. Constitution. The complaint, one of several challenges to the extraordinary session, alleges that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause.

The U.S. Constitution Art. 4 § 4 guarantees states a republican form of government. DPW’s complaint alleges that the Republican legislature violated the Guarantee Clause by removing powers from the incoming Democratic administration to the legislature.

DPW also claims that the extraordinary session violated the plaintiffs’ First Amendment rights to free association and free speech because the state legislature retaliated against Democratic candidates based on their political viewpoints by limiting their ability to enact their policy preferences via the newly elected Democratic Gov. Tony Evers and Attorney General Josh Kaul.

Finally, DPW argues the legislation violates the Fourteenth Amendment’s Equal Protection Clause because it dilutes the power of Democratic votes.

The complaint is the first federal challenge to the extraordinary session legislation. Other challenges in state courts argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution (League of Women Voters v. Knudson) and that the legislation violates the state Constitution’s separation of powers principles (Service Employees International Union v. Vos).

Evers Supports Unions in Act 369 Challenge

Posted on by Hamilton

Gov. Tony Evers has filed a motion asking the Dane County Circuit Court to grant a temporary injunction on several provisions of the 2018 extraordinary session legislation. The plaintiffs in this challenge include a coalition of labor unions and state Sen. Janet Bewley (D-Mason). Evers, who is a defendant in the lawsuit, argues that the plaintiffs are likely to succeed in their claims that provisions of 2017 Act 369 and 2017 Act 370 are unconstitutional. Note that Evers is also seeking to repeal the legislation in his 2019-21 budget proposal.

Evers’s brief claims that those provisions violate constitutional separation of powers principles by interfering with the governor’s authority to interpret the law and to prosecute cases on behalf of the state via the attorney general. The brief further argues the increased legislative oversight of agency decisions creates an unconstitutional “legislative veto” and violates constitutional bicameralism and quorum requirements.

Specifically, Evers’s brief supports the plaintiffs’ challenge of Act 370 provisions that require legislature approval of agency requests to the federal government and Act 369 provisions that

  • Create a definition and public transparency requirements for agency guidance documents.
  • Require the Department of Administration to send notice to the Joint Committee on Legislative Organization (JCLO) of any proposed changes to security at the capitol. JCLO then holds a 14-day passive review period on the proposed changes.
  • Require a Joint Finance Committee (JFC) 14-day passive review period for any new enterprise zone proposed by the Wisconsin Economic Development Corporation.
  • Allow the legislature to intervene in an action challenging the constitutionality or validity of a statute.
  • Shift the authority to approve the attorney general’s compromising or discontinuing an action from the governor to JFC.
  • Require JCLO authority for the attorney general to submit to JFC a settlement plan that acknowledges the unconstitutionality of a statute.
  • Give JCLO the authority to acquire office space for legislative offices or legislative service agencies.
  • Allow the Joint Committee for Review of Administrative Rules to suspend a rule multiple times.

In addition to what the plaintiffs are challenging, Evers suggests the court place an injunction on Act 369 sections that

  • Require agencies to cite statutes supporting any interpretation of law they publicly provide.
  • Allow JCLO to intervene in cases involving the state and in other matters.

Note that Evers does not challenge the Act 369 provision codifying the recent Supreme Court decision in Tetra Tech v. DOR that eliminated the practice of courts’ deference to agency interpretations of law.

This case is one of several challenges to the extraordinary session legislation enacted in December 2018. Another lawsuit from the League of Women Voters, Disability Rights of Wisconsin, and Black Leaders for Organizing Communities argues that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11). The Democratic Party of Wisconsin recently filed another challenge alleging that the legislation violates the U.S. Constitution.

 

AG Kaul Asks Legislature for Approval to Withdraw from ACA Lawsuit

Posted on by Hamilton

Wisconsin Attorney General Josh Kaul has sent a letter to the legislature’s Joint Committee on Finance (JFC), requesting authorization to withdraw the state from multistate litigation seeking to declare the Affordable Care Act unconstitutional. The request to withdraw comes after a back and forth between Gov. Tony Evers, Kaul, and the legislature regarding the governor’s and attorney general’s authority, as amended by the 2018 extraordinary session legislation.

In his State of the State address, Evers directed Attorney General Josh Kaul to remove Wisconsin from the lawsuit. The governor’s office subsequently delivered a letter to Kaul requesting withdrawal of the Department of Justice’s authority to participate in the litigation. However, Evers walked back the statement after a Legislative Reference Bureau memo to Senate Majority Leader Scott Fitzgerald (R-Juneau) explained that the governor does not have the authority to request the attorney general discontinue an action. Instead, the newly enacted 2017 Act 369 requires the JFC to approve the withdrawal. Kaul also sent Evers a letter stating the attorney general does not have legal authority to withdraw from the lawsuit without JFC approval.

The Republican-majority JFC is currently reviewing Kaul’s request for authorization to withdraw from the lawsuit. Wisconsin was a leader in the litigation under former Republican Attorney General Brad Schimel.

AG Kaul Announces Wisconsin DOJ Appointees

Posted on by Hamilton

After taking office on Jan. 7, newly elected Attorney General Josh Kaul has announced several appointments within the Department of Justice (DOJ). Appointees include current DOJ employees and alumni, as well as some new faces. Kaul’s appointments include:

  • Deputy attorney general – Eric J. Wilson. Wilson comes to DOJ from Godfrey & Kahn. His previous experience includes work as an assistant U.S. attorney in Chicago and an assistant attorney general in Wisconsin.
  • Chief of staff – Ashley Viste. Viste was Kaul’s campaign manager and as also worked on campaigns for U.S. Sen. Tammy Baldwin, now-Gov. Tony Evers’s Superintendent of Public Instruction campaign, and state Sen. Dave Hansen (D-Green Bay).
  • Communications director – Gillian Drummond. Drummond served as a senior advisor to Kaul during the campaign. Her previous experience includes running communications for Wisconsin Supreme Court Justice Rebecca Dallet’s campaign, the Democratic Party of Wisconsin, Hillary for Wisconsin, and Milwaukee mayor Tom Barrett. Drummond also served as chief of staff to then-minority leader Sen. Chris Larson (D-Milwaukee).
  • Director of the Division of Legal Services – Charlotte Gibson. Gibson has been an assistant attorney general since 2001 and director of the special appeals unit since 2011.
  • Director of the Division of Law Enforcement Services – Tina Virgil. Virgil has worked at DOJ for 26 years, including as director of the Special Investigations Bureau and state fire marshal.

Kaul also announced he will retain Schimel appointees Michelle Viste as director of the Office of Crime Victim Services and Kristen Devitt as the director of the Office of School Safety.