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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. The Case: Kaul v. Wisconsin State Legislature  Hagedorn Majority: Justice Brian Hagedorn (18 pages) for a unanimous court. Upshot This is a constitutional challenge to a law that prohibits the Department of Justice (DOJ) from settling most civil cases unless and until it receives the approval of the Joint Finance Committee (JFC). . . . *** As this court has explained over a series of cases, the Legislature’s constitutional responsibilities consist in making the law. Enforcing the law is a task vested in the executive branch. The general principle we announced in Service Employees International Union, Local 1 v. Vos, (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. Unlike in SEIU, the Legislature has not identified any constitutional role for itself in these two categories of cases. We hold that settling these two categories of cases is within the core powers of the executive branch, and the statutory requirement to obtain JFC’s approval prior to settling these cases violates the Wisconsin Constitution’s separation of powers. We reverse the decision of the court of appeals holding otherwise. Background The Department of Justice represents the state of Wisconsin in legal matters. It is responsible for prosecuting or defending all criminal and civil cases where the state, a state agency, or a state employee is involved, or where the state or the people of Wisconsin may have an interest. This includes civil actions DOJ prosecutes to enforce state laws and those DOJ pursues at the direction of an executive agency regarding programs it administers. DOJ possesses this power by statute, having no inherent authority to prosecute cases on its own. Until 2017, DOJ could settle any civil suit it pursued without legislative approval. But in 2018, after a new Governor and Attorney General were elected, but before they assumed office, the Legislature amended the statute governing DOJ’s ability to settle cases . . . , which now provides: "Any civil action prosecuted by the department by direction of any officer, department, board, or commission, or any civil action prosecuted by the department on the initiative of the attorney general, or at the request of any individual may be compromised or discontinued with the approval of an intervenor under s. 803.09(2m) or, if there is no intervenor, by submission of a proposed plan to the joint committee on finance for the approval of the committee. The compromise or discontinuance may occur only if the joint committee on finance approves the proposed plan." Thus, DOJ can no longer settle civil cases unless and until a legislative committee approves DOJ’s settlement plan. Shortly after the statute was amended, labor unions and individual taxpayers argued the statute was facially unconstitutional. In that case, we held that this provision was not unconstitutional in all its applications. We left open, however, the possibility that individual applications of the law or categories of applications might violate the constitution. And that is the kind of challenge we have here. About a year after SEIU, Attorney General Josh Kaul, DOJ, Governor Evers, and the Secretary of the Department of Administration filed this case in Dane County Circuit Court (for ease, we will refer to the plaintiffs collectively as “DOJ”). Having lost the facial challenge in SEIU, DOJ argued that the settlement statute was unconstitutional as to two categories of civil cases. Specifically, DOJ challenged the statute’s constitutionality as applied to civil enforcement actions and actions state agencies request DOJ to pursue. Settlement of these cases, DOJ argued, constitutes core executive power into which the legislative branch cannot interfere. The circuit court agreed with DOJ and granted its motions for summary judgment as to both categories. The court of appeals reversed. It concluded that the power to settle these types of cases is a shared power and legislative sign off on settlements was not an undue burden on executive powers. DOJ then petitioned this court for review, which we granted. WJI covered the District 2 Court of Appeals decision here in December 2024. Guts The quintessential core power belonging to the executive branch is the power to “take care that the laws be faithfully executed.” At the time of Wisconsin’s founding, to “execute” meant to “make effectual or operative” and “to carry into effect.” We have explained that this means once the Legislature has passed a law embodying its policy choices, it is the province of the executive branch to determine what the law requires and how to faithfully apply it. Part of that faithful application includes following any instructions for executing the law the Legislature prescribes by statute, and exercising discretion when the Legislature does not, so as to carry into effect the Legislature’s policy choices. Thus, it is within the Legislature’s domain to decide what the law shall be and to confer authority and discretion on the executive branch, which then must execute it “under and in pursuance of the law.” As one of three constitutional administrative officers, the Attorney General and the Department of Justice through which he acts are members of the executive branch of government. The constitution states that the Attorney General’s powers and duties “shall be prescribed by law.” In SEIU, the Legislature argued that because the Attorney General only possessed powers prescribed by statute, the settlement statute was constitutional because the Attorney General has no inherent constitutional authority to execute the law himself. Thus, the Legislature argued that any power the Attorney General exercised was subject to legislative modification and, therefore, could not violate the separation of powers. We disagreed. We explained that the Attorney General exercises executive authority when carrying out his statutory duties. And while the Legislature could give powers to the Attorney General or take them away, that did not mean the Legislature could, consistent with the constitution, grant to itself executive power in the first instance. Said another way, just because the Legislature establishes the scope of the Attorney General’s litigation powers does not mean that it can assume the execution of those powers itself. *** The Attorney General and DOJ are tasked with executing numerous statutes detailing when and how they are to bring litigation. Civil enforcement actions, the first category DOJ raises here, are civil actions prosecuted by the Attorney General to enforce state laws. Such actions include laws enforcing environmental, consumer protection, financial regulation, and medical assistance programs. State agencies typically refer these cases to DOJ for prosecution, but DOJ may also pursue some on its own initiative. In these actions, DOJ represents the state acting as the plaintiff, and any relief—civil forfeiture, injunctive relief, recovery costs of enforcement, or restitution—is obtained on behalf of the state. In the second category of cases, the Attorney General and DOJ are statutorily tasked with prosecuting certain cases at the request of “the head of any department of the state government.” These includes pursuing breach of contract cases for contracts “in which the state is interested,” and “all actions, civil or criminal, relating to any matter connected” with any state department. Examples include civil actions to enforce contracts executive agencies enter into or to pursue compensation in tort for damages to state property. Like those in the first category, these are cases where the state acts as plaintiff and where it will not be required to pay money to a defendant in a settlement. Some of the statutes authorizing these suits give the Attorney General broader discretion about when and how to take action, while others circumscribe that discretion by providing specific guidelines about prosecution and recoveries. But in either event, it falls within the power of the Attorney General to effectuate the Legislature’s statutorily enacted policy decisions with regard to these suits. Thus, DOJ’s litigation in these categories of cases is, rather straightforwardly, the execution of laws enacted by the Legislature. We said as much in SEIU, calling litigation on behalf of the state “predominately an executive function.” The Legislature agrees that litigation is at least in part an executive power, arguing at most that the power is shared with the Legislature rather than exclusively executive. And the idea that bringing lawsuits to execute or enforce the law constitutes executive power is uncontroversial. The United States Supreme Court has said that lawsuits are “the ultimate remedy for a breach of the law,” and, as such, it is constitutionally the executive branch’s role, not the Legislature’s, to pursue that remedy so as to faithfully enforce the law. Other state high courts have likewise found the power for a government agency to bring civil suits to be quintessential executive power for similar reasons. Just as the pursuit of these claims is unequivocally an executive function, so is the settlement of them. When the Legislature gives authority to the Attorney General to pursue these claims, it necessarily confers discretion on how to pursue the claims to completion, through settlement or otherwise. As we have said, “[i]n executing the law, the executive branch must make decisions about how to enforce and effectuate the laws.” In the context of the Attorney General’s authority to pursue certain claims, this means he is given the discretion to decide how to best execute the Legislature’s statutory mandates and policy choices, including whether those ends are best served through a settlement. *** Having established that the executive has the constitutional authority to settle lawsuits in these types of cases, the key question before us is whether the Legislature also possesses this constitutional authority in at least some suits within the two categories. The Legislature offers several arguments that it does, none of which succeed. *** The court rejects the Legislature's argument that it has an institutional interest in revenue generated from settlement agreements in the two categories of cases at issue. The Legislature likewise argues that it has an institutional interest in settlements within these categories of cases because they could implicate public policy, in particular where the Attorney General could require as a term of a settlement that funds be paid to certain agencies or organizations that the Legislature may disagree with. *** Executive action within the scope of statutory authority and employing the discretion inherent in execution of the law will often have a public policy impact. It is the Legislature that has given this authority and discretion in the first place, including any limitations on how settlements are to be spent. When the Attorney General, therefore, decides where settlement proceeds are to be directed, he is acting within the scope of the authority the Legislature gave him. If the Legislature is dissatisfied with the discretion it left to the Attorney General, it may amend the laws accordingly. In fact, the Legislature has done so with respect to some of the suits within the two categories in this case, instructing that any funds recovered go into the general treasury. However, the Legislature may not step into the shoes of the executive branch or otherwise control executive decisions made within the statutory authority simply because exercising that authority has policy implications. It is the “text of the statutes” by which the Legislature announces its policy decisions and how they may be achieved. *** 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. The challenged statute permits exactly this. The settlement approval process allows a committee of the Legislature to control how the executive exercises its lawfully given statutory authority. While that may be permissible in the realm of shared powers, it is impermissible in the realm of core powers. As the Legislature has failed to demonstrate that these types of cases implicate an institutional interest granting the Legislature a seat at the table, the powers at issue are core executive powers. Accordingly, there is no constitutional justification for requiring JFC sign-off on settlement agreements within these categories of cases. The statute as applied to these cases violates the Wisconsin Constitution’s separation of powers. 
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