Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 1 of 45 PageID #:253
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 1 of 45 PageID #:253
`
`EXHIBIT 1
`
`EXHIBIT 1
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 1 of 45 PageID #:253
`
`EXHIBIT 1
`
`EXHIBIT 1
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 2 of 45 PageID #:254
`
`SUPREME COURT OF WISCONSIN
`
`No. __________
`
`ROBIN VOS, IN HIS OFFICIAL CAPACITY AS WISCONSIN ASSEMBLY SPEAKER,
`ROGER ROTH, IN HIS OFFICIAL CAPACITY AS WISCONSIN SENATE
`PRESIDENT, JIM STEINEKE, IN HIS OFFICIAL CAPACITY AS WISCONSIN
`ASSEMBLY MAJORITY LEADER AND SCOTT FITZGERALD, IN HIS OFFICIAL
`CAPACITY AS WISCONSIN SENATE MAJORITY LEADER,
`PETITIONERS,
`V.
`JOSH KAUL, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE
`STATE OF WISCONSIN,
`RESPONDENT.
`
`MEMORANDUM IN SUPPORT OF
`PETITION FOR ORIGINAL ACTION
`
`Misha Tseytlin
`State Bar No. 1102199
`TROUTMAN SANDERS LLP
`1 N. Wacker Drive, Ste. 2905
`Chicago, IL 60606
`Telephone: (608) 999-1240
`Facsimile: (312) 759-1939
`misha.tseytlin@troutman.com
`
`Eric M. McLeod
`State Bar No. 1021730
`Lisa M. Lawless
`State Bar No. 1021749
`HUSCH BLACKWELL LLP
`33 E. Main Street, Suite 300
`P.O. Box 1379
`Madison, Wisconsin 53701-1379
`Telephone: (608) 255-4440
`Eric.McLeod@huschblackwell.com
`
`Counsel for Legislative Petitioners
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 3 of 45 PageID #:255
`
`B.
`
`TABLE OF CONTENTS
`ISSUES PRESENTED BY THE CONTROVERSY ....1
`INTRODUCTION.........................................................2
`STATEMENT ON ORAL ARGUMENT AND
`PUBLICATION...................................................4
`STATEMENT OF THE CASE .....................................4
`A.
`THE RELEVANT STATUTORY PROVISIONS
`IN ACT 369 .........................................................4
`THE ATTORNEY GENERAL NULLIFIES A
`SIGNIFICANT PORTION OF THESE
`PROVISIONS......................................................7
`STANDARD OF REVIEW .........................................12
`SUMMARY OF THE ARGUMENT...........................12
`ARGUMENT...............................................................15
`I.
`THE CONTROVERSY BETWEEN THE
`LEGISLATURE AND THE ATTORNEY
`GENERAL INVOLVES ISSUES OF GREAT
`PUBLIC IMPORTANCE, WARRANTING
`THIS COURT’S ASSERTION OF ITS
`ORIGINAL ACTION AUTHORITY ................15
`THE ATTORNEY GENERAL’S
`INTERPRETATION OF SECTIONS 26, 27
`AND 30 IS LEGALLY WRONG.......................20
`A.
`Section 26 Applies To “Any Civil Actions
`Prosecuted” By Attorney General,
`Without Regard To Whether There Have
`Been Pre-Suit Negotiations ...................21
`
`II.
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 4 of 45 PageID #:256
`
`B.
`
`Sections 26 And 30 Apply When The
`Attorney General “Compromise[s]” His
`Defense Of State Law, Without Regard To
`Whether The Attorney General Obtains
`Concessions From Opposing Parties .....24
`Section 27 Requires The Attorney General
`“To Deposit All Settlement Funds Into
`The General Fund,” And Is Not Limited
`By Section 26 In Any Respect................31
`CONCLUSION ...........................................................37
`
`C.
`
`- ii -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 5 of 45 PageID #:257
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Burkes v. Klauser,
`185 Wis. 2d 308, 517 N.W.2d 503 (1994)....................................1
`Citizens Util. Bd. v. Klauser,
`194 Wis. 2d 484, 534 N.W.2d 608 (1995)..................................15
`Cty. of Dane v. Labor & Indus. Review Comm’n,
`2009 WI 9, 315 Wis. 2d 293, 759 N.W.2d 571..........................21
`Petition of Heil,
`230 Wis. 428, 284 N.W. 42 (1939).................................15, 16, 18
`Int’l Ass’n of Machinists Dist. Ten & Local Lodge 873
`v. Allen,
`904 F.3d 490 (7th Cir. 2018) .....................................................29
`State ex rel. Kalal v. Circuit Court for Dane County,
`2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110................ passim
`State ex rel. Kleczka v. Conta,
`82 Wis. 2d 679, 264 N.W.2d 539 (1978)..............................16, 19
`Koschkee v. Taylor,
`2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600........................15
`Moustakis v. State of Wis. Dep’t of Justice,
`2016 WI 42, 368 Wis. 2d 677, 880 N.W.2d 142........................12
`State ex rel. Ozanne v. Fitzgerald,
`2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436..........................15
`Panzer v. Doyle,
`2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666........................15
`
`- iii -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 6 of 45 PageID #:258
`
`State ex. rel. Reynolds v. Zimmerman,
`22 Wis. 2d 544, 126 N.W.2d 551 (1964)....................................15
`Richards v. Badger Mut. Ins. Co.,
`2008 WI 52, 309 Wis. 2d 541, 749 N.W.2d 581......21, 23, 26, 32
`Risser v. Klauser,
`207 Wis. 2d 176, 558 N.W.2d 108 (1997)..................................15
`Serv. Emps. Int’l Union, Local I v. Vos,
`Nos. 2019AP614-LV, 2019AP622 ...............................................2
`State v. Debra A.E.,
`188 Wis. 2d 111, 523 N.W.2d 727 (1994)..................................26
`State v. James P.,
`2005 WI 80, 281 Wis. 2d 685, 698 N.W.2d 95..........................34
`State v. Popenhagen,
`2008 WI 55 and 21, 309 Wis. 2d 601,
`749 N.W.2d 611..........................................................................34
`State ex rel. Wis. Senate v. Thompson,
`144 Wis. 2d 429, 424 N.W.2d 385 (1988)..................................15
`Constitutional Provisions
`Wis. Const. art. VII, § 3..................................................................15
`Wis. Const. art. VIII, § 2 ..........................................................18, 32
`Statutes and Rules
`2017 Wisconsin Act 369.......................................................... passim
`Wis. Stat. § 20.001..............................................................33, 34, 36
`Wis. Stat. § 20.455.................................................................. passim
`Wis. Stat. § 20.906....................................................................34, 36
`
`- iv -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 7 of 45 PageID #:259
`
`Wis. Stat. § 25.20............................................................................32
`Wis. Stat. § 165.08.................................................................. passim
`Wis. Stat. § 165.08 (2017) ..........................................................5, 27
`Wis. Stat. § 165.10............................................................6, 7, 31, 32
`Wis. Stat. § 165.10 (2017) ................................................................6
`Wis. Stat. § 165.25.................................................................. passim
`Wis. Stat. § 165.25 (2017) ..........................................................6, 27
`Wis. Stat. § 893.825........................................................................33
`SCR 20:1.2.......................................................................................26
`Other Authorities
`American Heritage Dictionary of the English
`Language 274 (1st ed. 1980) .....................................................25
`Black’s Law Dictionary (11th ed. 2019) ............................22, 23, 32
`Legislative Reference Bureau, Wisconsin Bill
`Drafting Manual 2019–2020.....................................................36
`
`- v -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 8 of 45 PageID #:260
`
`ISSUES PRESENTED BY THE CONTROVERSY
`
`1. Whether Section 26 of Act 369 applies to “[a]ny civil
`
`action prosecuted by” the Attorney General,1 including when
`
`the Attorney General has engaged in some manner of pre-
`
`lawsuit negotiations.
`
`2. Whether Sections 26 and 30 of Act 369 apply when
`
`the Attorney General “compromise[s]” the State’s litigation
`
`interests, regardless of whether the Attorney General
`
`obtains concessions from opposing parties in exchange for
`
`the compromise.
`
`3. Whether Section 27 of Act 369 requires the Attorney
`
`General to deposit “all settlement funds into the general
`
`fund,” so that those funds are available for general revenue,
`
`and is not limited by Section 26 in any respect.
`
`
`1 This Memorandum refers to statutes that mention the “Department of
`Justice” as “Attorney General.” See Burkes v. Klauser, 185 Wis. 2d 308, 322,
`517 N.W.2d 503 (1994) (“[t]he Attorney General is head of the Department of
`Justice”).
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 9 of 45 PageID #:261
`
`INTRODUCTION
`
`Soon after this Court stayed the Circuit Court’s
`
`injunction blocking Sections 26 and 30 of 2017 Act 369, see
`
`Serv. Emps. Int’l Union, Local I v. Vos, Nos. 2019AP614-LV,
`
`2019AP622 (hereinafter after “SEIU”), App. 1, the Attorney
`
`General told the Legislature that he intended to nullify a
`
`significant portion of these very provisions. First, as to
`
`Section 26, he would not permit the Legislature to have a
`
`seat at the table when the Attorney General settles lawsuits
`
`that he files, where there has been some manner of pre-
`
`lawsuit negotiations. Second, as to both Sections 26 and 30,
`
`he would often not give the Legislature a seat at the table
`
`when he compromises the defense of Wisconsin laws unless
`
`he also obtains some concession from opposing parties in
`
`exchange. Third, as to Section 27, which requires him to
`
`deposit “all settlement funds into the general fund,” he
`
`would treat this provision as only applying to the narrow
`
`subset of cases to which he believes Section 26 applies.
`
`- 2 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 10 of 45 PageID #:262
`
`The Legislature, speaking through the same leaders
`
`that are named defendants in SEIU,2 respectfully requests
`
`that this Court resolve the purely legal question of whether
`
`the Attorney General can effectively nullify a significant
`
`portion of these provisions’ operation. In SEIU, this Court
`
`recognized the importance of Sections 26 and 30 by taking
`
`jurisdiction over a
`
`challenge
`
`to
`
`those provisions’
`
`constitutionality, on its own motion. This case presents a
`
`natural complement to SEIU: in SEIU, the Attorney General
`
`asks this Court to invalidate Sections 26 and 30, whereas in
`
`this case, the Attorney General is nullifying a significant
`
`portion of those provisions’ operations and using that
`
`interpretation to narrow the scope of Section 27, as well,
`
`thereby unlawfully seizing large sums of money that belong
`
`to the people of this State. And, as in SEIU, only this Court
`
`can resolve the purely legal disputes here.
`
`Given these considerations, if this Court grants this
`
`Petition, this Court may wish to consolidate this case for oral
`
`
`2 In SEIU, this Court correctly explained that these legislative leaders,
`referred to there as “Legislative Defendants,” “represented” the
`Legislature. App. 57.
`
`- 3 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 11 of 45 PageID #:263
`
`argument and decision with SEIU. To give this Court that
`
`option, the Legislature would be willing to consent to this
`
`Court treating this Memorandum as the Legislature’s
`
`Opening Brief on the merits, thereby permitting this Court
`
`the choice of concluding briefing in this case in advance of
`
`the October 21, 2019 oral argument in SEIU.
`
`STATEMENT ON ORAL ARGUMENT AND
`PUBLICATION
`If this Court grants the Petition for Original Action,
`
`that would indicate that this case is appropriate for
`
`argument and publication.
`
`STATEMENT OF THE CASE
`
`A. The Relevant Statutory Provisions In Act 369
`In December 2018, the Legislature enacted 2017
`
`Wisconsin Act 369, hereinafter Act 369.
`
`As relevant here, Section 26 of Act 369 renumbered
`
`Wis. Stat. § 165.08 to Wis. Stat. § 165.08(1), and amended
`
`this provision to give the Legislature a seat at the table when
`
`the Attorney General settles certain prosecution-side cases,
`
`meaning that the Legislature and the Attorney General
`
`must agree when giving up the client’s—the State’s—
`
`- 4 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 12 of 45 PageID #:264
`
`interest in these cases. In particular, Section 26 provides
`
`that “[a]ny civil action prosecuted by the department . . . may
`
`be compromised or discontinued” only with the Legislature’s
`
`approval, as intervenor; or, if there is no intervenor, with the
`
`approval of the Joint Committee on Finance (“JFC”). Wis.
`
`Stat. § 165.08(1). Prior to Act 369, Wis. Stat. § 165.08
`
`provided that “[a]ny civil action prosecuted by the
`
`department by direction of any officer, department, board or
`
`commission, shall be compromised or discontinued where so
`
`directed by such officer, department, board or commission.”
`
`Id. § 165.08 (2017). Civil actions prosecuted “on the
`
`initiative of the attorney general, or at the request of any
`
`individual may be compromised or discontinued with the
`
`approval of the governor.” Id.
`
`Section 30 renumbered Wis. Stat. § 165.25(6)(a) to
`
`Wis. Stat. § 165.25(a)1 to give the Legislature a seat at the
`
`table when the Attorney General settles certain defense-side
`
`cases, meaning that the Legislature and the Attorney
`
`General must agree when giving up the client’s—the
`
`State’s—interest in defending the constitutionality or
`
`validity of state law. In particular, under the amended
`
`- 5 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 13 of 45 PageID #:265
`
`statute, “if the action is for injunctive relief or there is a
`
`proposed consent decree, the attorney general may not
`
`compromise or settle the action” unless the Legislature, as
`
`intervenor, approves; or, if there is no intervenor, with the
`
`approval of the JFC. Id. Prior to Act 369, this statute stated
`
`that the Attorney General could compromise defense-side
`
`actions “as the attorney general determines to be in the best
`
`interest of the state.” Id. § 165.25(6)(a) (2017).
`
`Finally, Section 27 amended Wis. Stat. § 165.10 to
`
`provide that all settlement funds that the Attorney General
`
`collects and has authority to control would now go into the
`
`general fund and would no longer go into specific accounts,
`
`including Wis. Stat. § 20.455(3)(g), an account controlled by
`
`the Attorney General, subject to oversight by the JFC. In
`
`particular, prior to Act 369, Wis. Stat. § 165.10 provided that
`
`“before the attorney general may expend settlement funds
`
`under s. 20.455(3)(g) that are not committed under the terms
`
`of the settlement, the attorney general shall submit to the
`
`joint committee on finance a proposed plan for the
`
`expenditure of the funds.” Wis. Stat. § 165.10 (2017).
`
`Section 27 amended Wis. Stat. § 165.10 to provide that “[t]he
`
`- 6 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 14 of 45 PageID #:266
`
`attorney general shall deposit all settlement funds into the
`
`general fund.” Wis. Stat. § 165.10. Sections 21 and 103(1)
`
`completed this reform by prohibiting the Attorney General
`
`from spending money that he previously deposited into the
`
`Wis. Stat. § 20.455(3)(g) account and then lapsing all of the
`
`remaining, unencumbered funds into the general fund. Wis.
`
`Stat. § 20.455(3)(g).
`
`B. The Attorney General Nullifies A Significant
`Portion Of These Provisions
`On June 17, 2019, the Attorney General sent a letter
`
`to Senator Alberta Darling and Representative John
`
`Nygren, the Chairs of the JFC (collectively, the “Chairs”),
`
`describing his interpretation and ongoing implementation of
`
`Sections 26 and 30. App. 63. As relevant here, the Attorney
`
`General explained that, under his view, Section 26 does not
`
`apply when there is “pre-suit resolution of disputes,” when
`
`the Attorney General subsequently files a complaint and a
`
`consent judgment, or to cases where the court has entered a
`
`final judgment. Id. The Attorney General also explained
`
`that he interprets Section 30 not to apply to his decision to
`
`dismiss an appeal or not to take an appeal. Id. The Attorney
`
`- 7 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 15 of 45 PageID #:267
`
`General thus made clear that he would not be submitting
`
`decisions that fell outside of his view of Sections 26 and 30
`
`to the JFC for review and approval.
`
`On June 21, 2019, the Chairs responded to the
`
`Attorney General’s June 17, 2019 letter. App. 65. With
`
`regard to Section 26, this statute clearly provides that the
`
`Attorney General “cannot ‘compromise[] or discontinue[]’
`
`‘[a]ny civil action prosecuted’ by [his] office, without
`
`obtaining the statutorily-required consent.” Id. The
`
`Attorney General identified no legal basis for his conclusion
`
`that Section 26 did not apply to cases that he filed in court
`
`following pre-suit negotiations and then discontinued or
`
`settled with a consent judgment. Id. at 65–66. Similarly, the
`
`Attorney General offered no legal basis for his contention
`
`that this statute did not apply to cases in which an adverse
`
`final judgment had been entered but appellate review was
`
`available. Id. at 66. As to Section 30, the plain language of
`
`this statute applies to “any compromises or settlements” by
`
`the Attorney General,
`
`including written settlement
`
`agreements, decisions not to seek appellate review of an
`
`injunction blocking the
`
`laws of Wisconsin, or the
`
`- 8 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 16 of 45 PageID #:268
`
`discontinuance of an appeal of such an injunction. Id.
`
`(emphasis in original). Finally, the Attorney General
`
`appeared to “be in violation of [Section 27],” which required
`
`that him deposit “all settlement funds into the general fund.”
`
`Id. at 65. As of the date of the letter, it appeared that the
`
`Attorney General had not deposited any settlement funds
`
`into the general fund. Id.
`
`The Attorney General replied to the Chairs on June
`
`28, 2019. App. 70. The Attorney General asserted that
`
`Section 26 does not apply to pre-suit agreements because, in
`
`his view, when the Attorney General files a lawsuit for the
`
`purpose of seeking an enforceable consent judgment from
`
`the court, the court is “availing itself of judicial mechanisms
`
`for enforcing a resolution,” not “in any meaningful sense
`
`prosecuting a civil action.” Id. at 71 (emphasis in original).
`
`The Attorney General also asserted that Section 26 does not
`
`apply when he decides not to appeal. Id. at 72. As to Section
`
`30, the Attorney General claimed that a decision not to
`
`appeal or to dismiss an appeal in a defense-side action is not,
`
`in his view, subject to Section 30 because these decisions
`
`“require[] the involvement of only one party.” Id. Finally,
`
`- 9 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 17 of 45 PageID #:269
`
`the Attorney General discussed Section 27, claiming that the
`
`application of this statute was complicated in several
`
`respects not relevant to this Petition. Id. As relevant here,
`
`the Attorney General claimed that Section 27 must be read
`
`to cover only those cases covered by Section 26. Id. at 73.
`
`The Chairs responded on July 2, 2019. App. 74. The
`
`Attorney General was incorrect in his assertion that Section
`
`26 did not apply to civil lawsuits filed after a pre-suit
`
`agreement because “once the Department files a civil lawsuit
`
`in court, it is plainly prosecuting a civil action, regardless of
`
`what negotiations led up to the filing.” Id. at 75. As to both
`
`Sections 26 and 30, the decision not to appeal an unfavorable
`
`final judgment or to dismiss an appeal “is the quintessential
`
`compromise of the civil action” because these actions
`
`“deprive higher courts of jurisdiction to correct an erroneous
`
`trial court judgment, potentially having massive effects on
`
`the State’s finances,” or “leav[e] no appellate court with
`
`jurisdiction to correct a potentially erroneous[] injunction
`
`blocking the laws of this State.” Id. at 76. Finally, Section
`
`27 requires the Attorney General to deposit “any funds” that
`
`he “derives from settling any legal dispute” in the general
`
`- 10 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 18 of 45 PageID #:270
`
`fund. Id. (emphasis in original). The Attorney General’s
`
`attempt to limit this statute to cases requiring approval
`
`under Section 26 is atextual. Id. at 75–76. The Chairs also
`
`attached a memo, dated June 11, 2019, from the Legislative
`
`Fiscal Bureau, which showed that the Attorney General had
`
`received approximately $20.19 million in funds during the
`
`first five months of 2019 but had deposited no money into
`
`the general fund. Id. at 78. The Chairs demanded that the
`
`Attorney General deposit all settlement funds into the
`
`general fund by July 15, 2019 or explain where this money
`
`came from if not from settlements. Id. at 77.
`
`The Attorney General responded on July 15, 2019.
`
`App. 82.
`
` The Attorney General called the Chairs’
`
`explanation regarding Section 26 a “conclusory assertion”
`
`but did not respond to the Chairs’ legal analysis. Id. at 83.
`
`The Attorney General reasserted that Sections 26 and 30 do
`
`not apply to the decision not to appeal. Id. at 83–84. Finally,
`
`the Attorney General reasserted his claim that Section 27
`
`applies to the same cases as Section 26. Id. at 85. He then
`
`bizarrely claimed that settlement funds “deposited into the
`
`general
`
`fund” need not
`
`even be
`
`“deposited as
`
`- 11 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 19 of 45 PageID #:271
`
`nonappropriated receipts,” id. at 84 (emphasis omitted), but
`
`could be “credited to the appropriation account under Wis.
`
`Stat. § 20.455(3)(g).” Id.
`
`STANDARD OF REVIEW
`
`Although there is no decision below for this Court to
`
`review, statutory interpretation presents a pure question of
`
`law. Moustakis v. State of Wis. Dep’t of Justice, 2016 WI 42,
`
`¶ 16, 368 Wis. 2d 677, 880 N.W.2d 142.
`
`SUMMARY OF THE ARGUMENT
`
`I. This Court should grant the Petition for Original
`
`Action, under well-established standards for deciding issues
`
`of great, statewide importance, where prompt, purely legal
`
`resolution is in the public interest. This case involves an
`
`effort by the Attorney General to effectively nullify a
`
`significant portion of the operation of several provisions in
`
`Act 369. Prompt resolution of this legal dispute is of the
`
`essence to the public interest because, absent this Court’s
`
`action, the Attorney General has made clear that he will
`
`continue to settle cases without giving the Legislature its
`
`statutory seat at the table, and will continue to retain large
`
`- 12 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 20 of 45 PageID #:272
`
`sums of money for his own use, when that money rightfully
`
`belongs to the people. And this case presents only purely
`
`legal issues of statutory interpretation, meaning that no
`
`factfinding by this Court would be needed.
`
`II. The Attorney General’s efforts to effectively nullify
`
`several provisions in Act 369 fail as a matter of law.
`
`A. Section 26 provides that the Attorney General must
`
`give the Legislature a seat at the table in any compromise or
`
`discontinuance of “[a]ny civil action prosecuted” by the
`
`Attorney General. “Any civil action prosecuted,” means just
`
`what it says, and is not limited by the Attorney General’s
`
`claim—supported by no statutory text—that he can avoid
`
`giving the Legislature a voice by engaging in pre-lawsuit
`
`negations and then filing suit and settling.
`
`B. Sections 26 and 30 provide, in relevant part, that
`
`the Legislature must have a seat at the table when the
`
`Attorney General “compromise[s]” the State’s interest in
`
`certain litigations. Contrary to the Attorney General’s
`
`submission, he cannot evade this requirement when he
`
`compromises the State’s interests by declining to file a
`
`timely notice of appeal or dismissing a pending appeal.
`
`- 13 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 21 of 45 PageID #:273
`
`These litigation actions are the ultimate compromise of the
`
`State’s interests, as they often leave appellate courts with no
`
`jurisdiction to overturn, for example, a potentially erroneous
`
`injunction blocking the laws of this State. The State, as the
`
`client, must have a say when its lawyer seeks to abandon its
`
`core interests in litigation, and Sections 26 and 30 make
`
`clear that the Legislature has a seat at the table in the
`
`decision as to whether the State should give up its interests
`
`in defending one of the Legislature’s laws.
`
`C. Section 27 provides that “[t]he attorney general
`
`shall deposit settlement funds into the general fund.” The
`
`plain meaning and context of this statute make clear that
`
`Section 27 requires the Attorney General to deposit all of the
`
`funds that he recovers from settlements and has the right to
`
`control into the general fund. The Attorney General’s claim
`
`that this statute applies only to those settlements covered by
`
`his already unduly narrow view of Section 26’s reach—
`
`thereby allowing him to retain moneys for his office’s use
`
`that rightfully belong to the people—is entirely atextual.
`
`- 14 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 22 of 45 PageID #:274
`
`ARGUMENT
`
`I.
`
`The Controversy Between The Legislature And
`The Attorney General Involves Issues Of Great
`Public Importance, Warranting This Court’s
`Assertion Of Its Original Action Authority
`A. In deciding whether to grant a petition for original
`
`action, Wis. Const. art. VII, § 3, this Court looks to several
`
`considerations, with the most important
`
`factor being
`
`whether “the questions presented are of [great, statewide]
`
`importance,” such as issues that are “publici juris.” Petition
`
`of Heil, 230 Wis. 428, 443–46, 284 N.W. 42 (1939). Cases
`
`raising issues of separation of powers have often met this
`
`standard. See, e.g., Koschkee v. Taylor, 2019 WI 76, 387 Wis.
`
`2d 552, 929 N.W.2d 600; State ex rel. Ozanne v. Fitzgerald,
`
`2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436; State ex. rel.
`
`Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551
`
`(1964). As have cases brought by the Legislature, its
`
`committees, and members. See, e.g., Panzer v. Doyle, 2004
`
`WI 52, 271 Wis. 2d 295, 680 N.W.2d 666; Risser v. Klauser,
`
`207 Wis. 2d 176, 558 N.W.2d 108 (1997); Citizens Util. Bd. v.
`
`Klauser, 194 Wis. 2d 484, 534 N.W.2d 608 (1995); State ex
`
`rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 424 N.W.2d
`
`- 15 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 23 of 45 PageID #:275
`
`385 (1988); State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 264
`
`N.W.2d 539 (1978). This Court also considers whether the
`
`petition raises some manner of “exigency.” Heil, 230 Wis. at
`
`447. And this Court is more likely to grant a petition where
`
`a “speedy and authoritative resolution” is possible due to
`
`limited material factual disputes, id. at 446, such that “no
`
`fact-finding procedure is necessary,” State ex rel. Kleczka v.
`
`Conta, 82 Wis. 2d 679, 683, 264 N.W.2d 539 (1978).
`
`B. The purely legal questions presented by this
`
`Petition qualify for this Court’s original action jurisdiction.
`
`Most importantly, “the questions presented are of
`
`[great, statewide] importance,” such that these issues are
`
`unquestionably “publici juris.” Heil, 230 Wis. at 446–48.
`
`The legal disputes as to the meaning of Sections 26
`
`and 30 are of great statewide importance. As this Court
`
`recognized in asserting jurisdiction, on its own motion, over
`
`the appeals in SEIU, Sections 26 and 30 are deeply
`
`important provisions. Through his claimed interpretation of
`
`these provisions, the Attorney General is effectively
`
`nullifying a significant portion of these provisions,
`
`notwithstanding this Court’s stay in SEIU. For example, the
`
`- 16 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 24 of 45 PageID #:276
`
`Attorney General is taking the position that he can evade
`
`Section 26 by entering into litigation settlements through
`
`pre-lawsuit negotiations, and then filing a civil action and
`
`settling thereafter without legislative input. This evasion, if
`
`allowed to stand, has the effect of nullifying the Legislature’s
`
`right to its seat at the table in important cases impacting the
`
`public fisc. Similarly, the Attorney General is taking the
`
`position that, under his understanding of Section 30, he can
`
`refuse to file a notice of appeal or can dismiss an already filed
`
`appeal in cases where a trial court blocks a Wisconsin law,
`
`so long as that compromise does not involve a settlement
`
`agreement.
`
` When the Attorney General seeks to
`
`compromise away state law, this imposes harm of the “first
`
`magnitude” on the “Legislature and . . . the people.” App. 57.
`
`By unilaterally compromising away cases where he has not
`
`entered into a settlement agreement, the Attorney General
`
`continues to nullify the Legislature’s statutory right to a seat
`
`at the table to protect the laws that it enacted.
`
`The dispute as to the meaning of Section 27 is also of
`
`statewide importance. While Legislative Petitioners do not
`
`ask this Court to decide how much money the Attorney
`
`- 17 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 25 of 45 PageID #:277
`
`General is unlawfully withholding from the general fund, in
`
`violation of this law, that amount appears to be a very large
`
`sum and growing. See supra, p. 11. This is the people’s
`
`money, not the Attorney General’s, and the Legislature has
`
`the constitutional authority to determine how this money
`
`should be spent. See Wis. Const. art. VIII, § 2. Absent this
`
`Court’s action, the Attorney General will continue to retain
`
`this money illegally, depriving the Legislature of its
`
`constitutional right to appropriate these funds for the
`
`people’s benefit. In addition, the Attorney General has taken
`
`the position that his interpretation of Section 27 turns
`
`entirely on his interpretation of Section 26, meaning that it
`
`makes sense for this Court to interpret both of these
`
`provisions together.
`
`Granting this Petition is also important because the
`
`Legislature and the people will benefit from a “speedy and
`
`authoritative determination” as to the meaning of Sections
`
`26, 27, and 30. Heil, 230 Wis. at 446. In its decision granting
`
`a stay of the temporary injunction blocking Sections 26 and
`
`30 in SEIU, this Court explained that the Attorney General
`
`had admitted that he had unilaterally settled several cases
`
`- 18 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 26 of 45 PageID #:278
`
`because of the temporary injunction. App. 57. This Court
`
`then held that even though the Circuit Court wrongly denied
`
`a stay, this Court “will not be able to direct the federal courts
`
`to vacate or reopen the judgments in those cases.” Id. As a
`
`result, the Legislature and the people suffered irreparable
`
`harm in cases such Allen v. International Association of
`
`Machinists, No. 18-855 (S. Ct. Apr. 19, 2019), where the
`
`Attorney General compromised away an important provision
`
`of Wisconsin’s right-to-work law without legislative input.
`
`See infra, pp. 30–31. Absent this Court’s speedy holding and
`
`declaration that the Attorney General
`
`is
`
`incorrectly
`
`interpreting these provisions, the same harms—irreversible,
`
`illegal settlements, without legislative input—are sure to
`
`befall the people and the Legislature.
`
`Finally, the questions that the Legislature presents
`
`here are issues of purely legal, statutory interpretation,
`
`where “no fact-finding procedure is necessary.” Kleczka, 82
`
`Wis. 2d at 683. Importantly, while the Legislature and the
`
`Attorney General may have other disagreements about the
`
`meaning of provisions in Act 369 or about the handling of
`
`specific cases or
`
`funds, Legislative Petitioners have
`
`- 19 -
`
`
`
`Case: 1:20-cv-02658 Document #: 30-2 Filed: 06/29/20 Page 27 of 45 PageID #:279
`
`specifically and purposefully limited this Petition to just
`
`these purely legal questions, which this Court can decide by
`
`applying the statutory interpretation principles in State ex
`
`rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271
`
`Wis. 2d 633, 681 N.W.2d 110.
`
`II.
`
`Interpretation Of
`The Attorney General’s
`Sections 26, 27 And 30 Is Legally Wrong
`“[S]tatutory interpretation begins with the language
`
`of the statute”—and, if the meaning of that language is
`
`plain—ends there. Kalal, 2004 WI 58, ¶ 45 (citations
`
`omitted). “Statutory language is given its common, ordinary,
`
`and accepted meaning, except that technical or specially-
`
`defined words or phrases” are at issue.
`
`Id. Context,
`
`structure and statutory history are important to plain
`
`meaning. “[S]cope, context, and purpose are perfectly
`
`relevant
`
`to
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
