Lame Ducks In Madison Aren’t The Laws

Instead I would suggest that it is the GOP ‘lawmakers’ who are the lame ducks. For those of you following Wisconsin politics, you are familiar with the lame duck laws pushed through the legislature and signed by outgoing Governor Scott Walker between the November 2018 election and the January 2019 inaugurations. The laws were meant to limit the authority of both the incoming governor and attorney general who just incidentally happened to be Democrats.

There are any number of lawsuits surrounding these laws and both sides have lawyered up and it’s going to cost the taxpayer millions. Money that should be going to far far better use.

But let’s go down one particular rabbit hole this afternoon. Traditionally, the attorney general, as the top lawyer in state government handles suits against the state and suits initiated by the state. So when a settlement is suggested, normally the attorney general would negotiate it and settle it.

But one of the lame duck laws passed last fall require the legislature’s Joint Finance Committee to sign off on settling some lawsuits. Now it is often advantageous to settle a lawsuit before it goes to court…most often financially advantageous for all parties involved. But obviously it gets more complicated when the legislature sticks its fingers in it.

But the biggest problem seems that no one has set out a policy or a procedure to handle approval of settlements. And I would suggest that shortfall rests with the legislature…you know…the ‘lawmakers’.

Republicans and the attorney general have fought in recent days over how to get approval of the Legislature’s Joint Finance Committee to settle some lawsuits.

Kaul argues he needs written assurances that legislators on the committee will keep information about the cases confidential.  

I understand that there is a certain need for confidentiality. After all, a plaintiff who is ready to settle hardly wants the whole argument ‘litigated’ in committee in Madison. And certain controversial suits shouldn’t be discussed in public until settled. Seems like common sense to me. But the GOP isn’t seeing it that way.

GOP lawmakers on Thursday hired the Milwaukee law firm Von Briesen & Roper to assist them with the issue. The firm will be paid $290 an hour. 

In an interesting turn of events, Attorney General Kaul asked for a closed door meeting to discuss some high profile settlement cases and the GOP freaked out. Surprisingly the party of opacity in state government found the request to sign non-disclosure agreements troubling…and everything ground to a halt.

Lawmakers who passed a law taking away Attorney General Josh Kaul’s power to settle lawsuits without their permission are refusing to give Kaul assurances of confidentiality he says are needed to resolve litigation without jeopardizing taxpayers. 

The move was made as part of an unprecedented closed-door meeting of the Legislature’s finance committee that was convened at Kaul’s request to discuss action on a multi-state lawsuit — one that lawmakers would debate without even knowing its nature.

Kaul came before the committee Tuesday under requirements of new laws passed by Republicans in December shifting powers away from Democratic Gov. Tony Evers and Kaul before they were sworn into office.

He wanted lawmakers to sign non-disclosure agreements before revealing more details of the case he is seeking to settle — a request Republicans called a “nonstarter.”

Democrats decried the episode as an example of an ill-crafted law that forces Kaul to choose between violating attorneys’ confidentiality rules or violating a state law requiring him to bring lawsuits to a committee that is subject to open government laws.

“For the first time in history, the joint committee on finance going into closed session because of the law that was passed not at the request of the attorney general but because the attorney general was following the law should make us stop right there,” said Sen. Jon Erpenbach, D-West Point. 

Republicans defended the law, saying without it the public would continue to be shut out of the process to settle lawsuits involving taxpayer money — something previous attorneys general had the power to handle privately. 

Well it looks like the public is still being shut out. And the downside is if lawsuits don’t get settled in a timely manner, they eventually end up going to court and costing time and money to litigate and possibly more expensive settlements. But rather than get on board, the GOP:

Legislative leaders this month sued Kaul over how he is handling settlements, arguing he should be consulting with them in more cases.

this month = August 2019

Well here’s a flaw in their lame duck law. Obviously the GOP’s expectations of ‘consulting’ and the consultation supplied by the attorney general differ considerably. And that gap falls on the lawmakers. If they had an idea about how and when and where they wanted to be consulted…their law should have spelled that out. If it doesn’t it’s up to the executive branch, the attorney general, to proceed as they deem fit.

Meanwhile, the GOP legislators suggest that they didn’t have enough notice or have enough time to review the settlements. I suggest that since they’ve inserted themselves into the process…it has become part of their responsibilities to be paying attention to what’s going on. Will be they be privy to confidential data…probably not…but go back to an earlier sentence about an ill-crafted law.

This isn’t going to end well…depending on the source…and the day of the week, there are apparently somewhere between twelve and fifteen cases that are ready to be settled. While the legislators wander around in circles, the state taxpayers are being exposed to additional financial risk or financial loss:

Nine months after Republican lawmakers passed a law requiring Attorney General Josh Kaul to get their permission before resolving lawsuits there’s still no agreement between the two on how to do it. 

Kaul and lawmakers have been debating for months on how to navigate the new law and have put off resolving more than a dozen cases, according to documents obtained by the Milwaukee Journal Sentinel this week.  

Kaul’s office in July asked the Legislature’s finance committee to hold a hearing to adopt plans to resolve some of the outstanding cases, including one over financial problems at the University of Wisconsin-Oshkosh Foundation.

The leaders of the committee, GOP Sen. Alberta Darling of Rivers Hills and GOP Rep. John Nygren of Marinette, told Kaul in a letter this month that they didn’t consider the cases at a meeting last month because they didn’t have enough information about the cases and weren’t given enough notice about them.

We’ll see where this goes next. It’s certainly not resolved but doesn’t sound like a resolution is near at hand. An agreement needs to be reached on how to handle communication on settlements, how to keep negotiations private until all litigants agree to a settlement, and the GOP needs to learn how to write laws that do what they think they intend.

It’s September and the legislature is back in session…fingers crossed!


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2 thoughts on “Lame Ducks In Madison Aren’t The Laws

  1. The same “people,” (self-interest dealing, power abusing, corporate whores) who demanded that the public and their legislative colleagues (non-GOP) be shut out from the current redistricting maps process, and who were publicly silent about needing to sign confidentiality pledges demanded by their own (GOP) leadership in order to see their own new (GOP)legislative districts are all of the sudden claiming that they are worried about

    “…the public would continue to be shut out of the process to settle lawsuits involving taxpayer money…”

    aside from being contrary to their own (GOP) obsession for practicing legislating in overnight sessions in total secrecy, also becomes an admission that their ultimate goal is to inform the public about the confidential process that happens in so much of our DOJ day-to-day required functioning.

    This is beyond talking out of either side of their mouths, this is talk purely and unmistakably emanating from the anatomical orifice upon which they sit. AG Kaul is completely within the law in requiring individual non-disclosure statements in this case.

    MY dog, hasn’t this same GOP legislature pretty much made themselves immune from investigation (John Doe) or prosecution already? A non-disclosure statement wouldn’t protect state litigant confidentiality with this group anyway, as they’d simply hire attorneys to defend their GOP Joint Legislative “behinds,” (at taxpayer expense) when they would violate any confidentiality agreements in the future, if they were to actually agree to AG Kaul’s stipulation.

    Confidentiality agreements from individual members of Joint Finance is going far enough AG Kaul. Filing suit over obstruction of justice against Nygren and his ilk is what should be happening if it is possible. Let Nygren and Co hire taxpayer paid attorneys over obstructing justice or whatever could be brought, and let them carry that into the current election cycle.

    1. Apologies for my poor editing, first sentence, last paragraph should read “…isn’t going far enough…”

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