June 24, 2025 – The Wisconsin Legislature overstepped its constitutional bounds when it required the Attorney General to submit proposed settlements in two types of civil cases to the Joint Committee on Finance (JFC), a unanimous Wisconsin Supreme Court decided last week ​in Kaul v. Wisconsin State Legislature, 2025 WI 23.

The challenge to Wis. Stat. section 165.08(1) – passed by the Legislature and signed by Gov. Scott Walker after the 2018 elections changed the balance of power – involved civil enforcement actions and cases that the Department of Justice (DOJ) brings for which executive branch agencies request DOJ’s legal services.

Justice Brian Hagedorn, who wrote the decision, clarified that this result follows Service Employees International Union, Local 1 (SEIU) v. Vos, 2020 WI 67, which held that the statute survived a facial constitutional challenge.

“The general principle we announced in SEIU remains. While the Legislature can by law empower DOJ to represent the state in litigation and prescribe the limits and ends of that power, it generally cannot give itself the power to control litigation the statutes empower DOJ to undertake.”

Civil Case Settlements

The DOJ represents the state in its legal matters, both in criminal and civil cases in which the state government or the people of Wisconsin have an interest, as established by statute.

“[I]n 2018, after a new Governor and Attorney General were elected, but before they assumed office,” the Legislature changed the statute about DOJ’s ability to settle cases.

As the supreme court summarized, under Wis. Stat. section 165.08(1), “DOJ can no longer settle civil cases unless and until a legislative committee,” the JFC, “approves DOJ’s settlement plan.”

The statute quickly faced a legal challenge in which “labor unions and taxpayers argued the statute was facially unconstitutional.” SEIU held that the statute was constitutional in at least some applications.

“We left open, however, the possibility that individual applications of the law or categories of applications might violate the constitution,” the decision explained. “And that is the kind of challenge we have here.”

Attorney General Josh Kaul, DOJ, Gov. Tony Evers, and the Secretary of the Department of Administration, who is now Kathy Kotlin Blumenfeld, sued the Legislature, JFC, and individual legislators arguing that the statute was unconstitutional “as applied to civil enforcement actions and actions state agencies request DOJ to pursue.”

Dane County Circuit Court agreed that the law was unconstitutional in these situations, but the Wisconsin Court of Appeals, District II held in a 2-1 decision (2025 WI App 3) that the law was constitutional.

Separation of Powers

This constitutional issue requires defining the duties of each branch of the government and how those duties are established, whether by constitution or statute, the Supreme Court analysis began.

The Legislature has “the power to make the law, to decide what the law shall be” while the executive branch, including the Attorney General and the DOJ, “is vested with the power to ‘execute and enforce the law as enacted.’”

Some constitutional duties reside in one branch. These are core powers in which “any exercise of authority by another branch of government is unconstitutional,” the Supreme Court emphasized.

If the Supreme Court has determined that two branches share a power, “this inquiry involves looking at the text of the constitution and, if relevant, a consideration of ‘the practices and laws in existence before, at the time of, and after the adoption of the state constitution,’” the decision explained.

“The quintessential core power belonging to the executive branch is the power ‘to take care that the laws be faithfully executed,’” under Wis. Const. article V, section 4. That includes giving the executive branch the ability “to determine what the law requires and how to faithfully apply it.”

The Legislature may give the executive branch instructions through enacting laws. The Legislature’s powers include the ability “to decide what the law shall be and to confer authority and discretion on the executive branch.”

In contrast, the Legislature may not take on executive powers for itself.

Two Types of Civil Cases

The Legislature has enacted “numerous statutes detailing when” the Attorney General and the DOJ “bring litigation.” The types of civil cases are instances in which the Attorney General ensures state laws are followed through enforcing them, the decision explains.

In a civil enforcement action, the Attorney General enforces state laws, such as “environmental, consumer protection, financial regulations, and medical assistance programs.” These actions may come to the DOJ by agency request or its own initiative.

The DOJ also prosecutes cases when a department head requests it, as authorized under Wis. Stat. section 165.25(2). These can be any sort of case, such as breach of contract or recovery for damages that affects a state department.

“Thus, DOJ’s litigation in these categories of cases is, rather straightforwardly, the execution of laws enacted by the Legislature,” the decision explains.

“We said as much in SEIU, calling litigation on behalf of the state ‘predominantly an executive function’” in order “to faithfully execute the law.”

“Just as the pursuit of these claims is unequivocally an executive function, so is the settlement of them,” the decision said. By giving the Attorney General the ability to pursue these claims, the Legislature confers discretion on their settlement.

“The executive branch, therefore, has the constitutional prerogative to settle the suits in these two categories of cases,” the decision concluded.

‘Borderlands of Shared Powers’

The 2018 statute may be constitutional if the Legislature has some constitutional authority within these classes of cases, what SEIU called “these borderlands of shared powers, most notably in cases that implicate an institutional interest of the [L]egislature.”

The Legislature has argued the sentence in SEIU indicates litigation is a shared power, but Justice Hagedorn explained that to do so pulls it “out of context” and “contradicts everything else SEIU says,” which is that the Legislature has a “legitimate constitutional role” in settling some suits.

In the Legislature’s “power to enact laws,” it “has broad discretion in which policies to pursue and in instructing the executive branch in how to carry them out,” the decision explained.

“Once the legislature has made those choices and enacted them into law, its role with respect to that law – absent efforts to review its effectiveness or change it – is generally complete.”

The Legislature’s Arguments

The Legislature argued that its constitutional interest in these civil settlements derives from budgetary duties to ensure sufficient state revenues and from making policy, which could be undermined by settlement terms that dictate where the money should go or how it is spent.

Budgetary requirements, the Supreme Court said, do not create “a constitutional interest in controlling every executive function involving the collection of revenue, or even taxes. We fail to understand why the power and duty to levy taxes allows the Legislature to control the execution of the law.”

The Legislature’s “power of the purse,” as used in SEIU, relates only “to money flowing out of the public fisc.”

The Legislature’s taxing power “does not grant the Legislature control over all the money that flows into the state’s hands the way that the appropriation power grants the Legislature the power to control money paid out of the treasury.” To decide otherwise would allow the Legislature to “insert itself into the execution of the law.”

Similarly, “[i]n executing the law, executive branch officials must decide how to effectuate the law’s policies, and those decisions will necessarily have policy implications. … The Legislature’s argument that it can step into the shoes of the executive when executive action impacts policy would eviscerate the separation of powers.”

If the Legislature wants settlement funds to go to a specific place, it can change the law specifying fund disposition, as it has done before in directing fund proceeds to the general treasury, the Supreme Court suggested.

Without finding justification for the Legislature’s authority in these cases, the Supreme Court concluded that “the statute whereby the Legislature grants to itself a role in executing the law by mandating that settlements receive pre-approval from JFC is unconstitutional.”

“The Legislature may prescribe the scope of the Attorney General’s authority and discretion in the categories of civil suits challenged today. But to do so, it must pass a statute. It cannot assume for itself the power to execute a law it wrote.”