Court of Appeals District 2 cites separation of powers doctrine while bolstering the Legislature . . . again

By Alexandria Staubach
 
Separation of powers issues continue to loom large in District 2 of the Wisconsin Court of Appeals, where two judges claim that no branch of government has “unfettered authority to act as it or they please” but then affirm the Legislature’s wresting of power from the executive branch.
 
On Dec. 19, Judges Maria S. Lazar and Shelly A. Grogan sided with the Legislature in ruling that all money collected by the Wisconsin Department of Justice shall be deposited into the state’s general fund for disbursement by the Legislature at its discretion. Judge Lisa S. Neubauer dissented.
 
Previously, the DOJ held discretion over settlement funds for cases it prosecuted and was, in effect, permitted to retain some money it generated from the settlement of civil litigation.
 
However, according to Lazar's majority opinion, “both the legislative and statutory history confirm that the legislature enacted the new statute to alter the prior practices of the attorney general and to expressly bolster its monetary control over state funds.”
 
The same split panel recently upheld a law permitting the Legislature’s involvement in DOJ settlements.
 
Both cases stemmed from interpretation and application of legislation hastily passed in a lame-duck session in late 2018 as Gov. Scott Walker left office, designed to give the Legislature more power before Gov. Tony Evers took over.
 
Neubauer wrote in dissent that the majority failed to adhere to still valid Wisconsin law providing a carve-out for the DOJ to retain control over some funds it collects, such as attorneys’ fees and funds for investigation.
 
Neubauer wrote that the statute at issue in the appeal provides that “funds will be credited to the general purpose revenues unless another law provides a different crediting direction,” and that subsections of another statute “provide such direction.”
 
“To the extent this result is the product of imprecise word choice or other inadvertence on the legislature’s part, it is not our function to correct such an oversight,” wrote Neubauer.
 
To arrive at its interpretation of the law, the majority “work(ed) backwards from a predetermined conclusion” and acted “antithetical to our statutory interpretation methodology,” said Neubauer.

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