Rep. Evan Goyke
Josh Kaul was elected Wisconsin’s 45th attorney general on Tuesday, Nov. 6, 2018. The next day, Assembly Speaker Robin Vos and legislative Republicans began secretly crafting multiple bills to take away the power of Atty. Gen. Kaul and Governor Tony Evers. These bills were passed on a party-line vote in a rushed, all-night, “lame duck” session in December 2018, which resulted in a wave of litigation that remains unresolved and is being paid for by Wisconsin taxpayers.
One of the more transparent power grabs within the lame duck session was a provision that requires the attorney general to obtain the approval of the Legislature’s Joint Committee on Finance prior to settling litigation that the state is involved in. Every other attorney general in Wisconsin’s history, both Democrat and Republican, has had the authority to settle litigation.
Not only is the settlement provision an unprecedented power grab, but the Republican law was so poorly written and so poorly thought out that the new law doesn’t even work. For months, Kaul sought agreement from legislative Republicans on how to implement the law. An early agreement was later tossed by Republicans, and a months-long stalemate ensued.
Totally Unnecessary Additional Problems
Over the course of the past three weeks, as unsettled cases have begun to pile up, Republicans on the Joint Finance Committee have stumbled to try to use the law they wrote. In one hearing, held partially in public and partially behind closed doors, no meaningful discussion could advance because of issues of confidentiality in the litigation. No cases were settled.
Next, the Republicans hired their own lawyer, doing so without debate and without a vote of the committee. This attorney is being paid $290 an hour to try and find out a way to make the lame duck law work. A week after the failed first hearing, and now with the private attorney’s help, a second hearing was scheduled, but promptly canceled.
It’s important to understand what’s at stake. Some litigation is huge, multi-state and could cost the state major opportunities at settlement money. Some litigation is small and only involves the state in a minor way. The complexity and confidential nature of litigation and settlement negotiations, even in small cases, is so fragile and protected that inserting partisan legislators will never work. There is no way to fix, tweak or amend this lame duck law; it cannot work for the legal system and the litigants within it.
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Take an example from the most recent failed hearing. The case involves a car accident. The injured person, the plaintiff, was seriously hurt. The insurance company, the defendant—the insurer of the driver at fault—agreed to the settle the case. The State of Wisconsin became an additional plaintiff to recoup health care costs from the Medicaid program. In the lawsuit, all sides have now agreed on a settlement. The injured person will get justice. The insurance company will get resolution. Taxpayers will get owed health care costs. Everyone agrees on an acceptable outcome—except legislative Republicans.
We have a civil justice system that, for all of our state’s history, has functioned without needing legislative approval to settle cases. Injured people need Republicans to get out of their way. Insurance companies need Republicans to get out of their way. The lame duck power grab is now disrupting the legal system, delaying justice, increasing costs to both sides of the lawsuit and is now coming with a price tag of $290 an hour.
Kaul was elected attorney general. He should be allowed to settle cases just as every other attorney general in our state’s history has. Only with a return to the way we’ve always operated, to the respect and trust of the attorney general and the citizens of Wisconsin who elected him, will the litigation settlement process work as intended.
Evan Goyke is a member of the Wisconsin State Assembly.
