By M.D. Kittle
MADISON — Attorney General Josh Kaul is breaking the law in settling civil actions without seeking approval from the Legislature — and he shows no sign of stopping his defiance.
That’s a key allegation in a lawsuit filed Thursday in Polk County Circuit Court by the GOP-led Wisconsin State Legislature against Kaul and Joel Brennan, Gov. Tony Evers’ secretary of the Department of Administration.
Polk County resident and attorney Adam Jarchow is also a plaintiff in the lawsuit.
Full disclosure: Jarchow is president of Empower Wisconsin, although Empower Wisconsin is not involved in the litigation. Jarchow, a former state lawmaker, is representing himself.
The lawsuit asserts Kaul has repeatedly violated Wisconsin Act 369. The law, signed in 2017, requires the attorney general to seek approval from the Legislature’s Joint Finance Committee before he moves to “compromise or discontinue .. any civil action” taken up by the state Department of Justice.
Kaul, a Democrat, doesn’t think he needs permission from the Republican-controlled Legislature to make settlements with the dairies and other businesses he’s targeted through prosecutions. The liberal AG has told the Legislature that the law doesn’t apply to resolutions before the civil matters are argued in court. Kaul, however widens that universe, arguing that he doesn’t need JFC’s permission even with agreements confirmed “afterward by the filing of a complaint and a consent judgement … or cases where a final judgement has been entered by a court or in a contested matter.”
That’s not what the law says, however. As the lawsuit points out, the law includes no such limitation on when the attorney general must seek legislative approval. The complaint asserts Kaul’s repeated defense for his “lawless actions” are “baseless.”
“Therefore, Plaintiffs now bring this action to stop the Attorney General’s flagrant violations of the law, thereby restoring the statutory and constitutional separation of powers that the Attorney General is so brazenly flouting,” the lawsuit states.
Kaul also has failed to deposit “all settlement funds” into the state’s general fund, the lawsuit alleges. The attorney general, according to the complaint, told the Joint Finance Committee he doesn’t have to put certain settlement money into the general fund. A legislative memo revealed that Kaul had received “approximately $20.19 million in funds during the first five months of 2019, although apparently none of those funds had been deposited into the general fund.”
According to the complaint, the money appears to be sitting in a holding account at the state Department of Administration. Just what is being done with the money remains unclear. Kaul’s office and DOA did not return Empower Wisconsin’s request for comment.
The lawsuit asserts the attorney general is acting under an erroneous misunderstanding of the law and will continue to do so. The Legislature and Jarchow, arguing that his rights as a state taxpayer have been violated, are asking the court to restrain Kaul from acting unilaterally and order the Department of Administration to deposit all collected settlement awards to the state’s general fund.
“(T)he Legislature is currently in the process of preparing the next biennial budget for the State, yet—because of the Attorney General’s actions—it cannot know how much money is available to spend for the next biennial budget,” the complaint states.
Kaul, a hyper-partisan Democrat, has been warring with the Republican-controlled Legislature since before he stepped into office. The AG for months refused to share any details on settlements with the JFC, insisting that doing so would violate confidentiality. He, Evers and their liberal allies have unsuccessfully challenged a suite of legislation passed following the 2018 gubernatorial election that restrains the executive branch’s power.
The Wisconsin Supreme Court has upheld the section of law in question in a previous, unrelated lawsuit, writing that the power to represent the state in litigation is a “shared power” between the first and second branches. But the court has refused to take up both the Legislature’s and Kaul’s litigation.