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GOP won’t let Kaul settle lawsuit under lame duck laws

August 27, 2019
FILE - In this May 9, 2019 file photo, Josh Kaul, Wisconsin's attorney general, sits in his Capitol office conference room in Madison, Wis. Kaul is meeting with the Legislature's finance committee Tuesday, Aug. 27, 2019, behind closed doors to discuss a legal settlement for the first time under laws Republicans passed during a lame-duck session last year. Republicans passed laws during a December lame-duck session that require Kaul, a Democrat, to get the GOP-controlled Joint Finance Committee's approval to settle lawsuits. (AP Photo/Todd Richmond File)
FILE - In this May 9, 2019 file photo, Josh Kaul, Wisconsin's attorney general, sits in his Capitol office conference room in Madison, Wis. Kaul is meeting with the Legislature's finance committee Tuesday, Aug. 27, 2019, behind closed doors to discuss a legal settlement for the first time under laws Republicans passed during a lame-duck session last year. Republicans passed laws during a December lame-duck session that require Kaul, a Democrat, to get the GOP-controlled Joint Finance Committee's approval to settle lawsuits. (AP Photo/Todd Richmond File)

MADISON, Wis. (AP) — Republicans who control the Wisconsin Legislature’s finance committee stopped short of allowing Democratic Attorney General Josh Kaul to settle an unknown lawsuit after he asked them to sign confidentiality agreements Tuesday in a messy first test of their lame duck law limiting the attorney general’s powers.

Republicans passed provisions during a December lame duck session that require Kaul to get the finance committee’s permission to settle lawsuits. The language is designed to ensure Kaul can’t weaken contentious Republican-authored statutes. Republican lawmakers filed a lawsuit earlier this month with the state Supreme Court alleging Kaul hasn’t been complying with the law.

Kaul sent committee members an email Friday afternoon saying he wanted to meet quickly about a case.

The GOP moved Tuesday’s meeting behind closed doors, citing a section of Wisconsin’s open meetings law that allows closed meetings to deliberate with attorneys about potential litigation. Committee clerk Joe Malkasian said he didn’t believe the committee had ever met in closed session before.

Republicans opened up the meeting after about 90 minutes but said they and Kaul were at a stalemate. They said they had no idea what the lawsuit is about because Kaul wouldn’t tell them unless they signed non-disclosure agreements.

After the meeting the committee’s co-chairs, Rep. John Nygren of Marinette and Sen. Alberta Darling of River Hills, provided a copy of a letter they sent to Kaul on Aug. 19 telling him confidentiality agreements aren’t needed because what’s said during closed legislative committee sessions is inherently confidential. They also complained that Kaul has shared information with Democratic Gov. Tony Evers without requiring a non-disclosure agreement.

“Signing a confidentiality agreement is a nonstarter,” they said in a joint statement.

Kaul warned during the meeting that there would be “significant harm to the state if we don’t move forward.” He didn’t elaborate but said he couldn’t take action on the settlement without a guarantee of confidentiality.

Bill Lueders, president of the Wisconsin Freedom of Information Council, said the state open meetings law does allow closed sessions to discuss litigation but nothing prohibits anyone who attended the session from talking about what was discussed.

Committee Democrats hinted that the lawsuit is a multi-state action that Kaul’s predecessor Republican Brad Schimel joined, but they offered no further details. They complained that the permission-seeking process laid out in the lame duck laws is unworkable and will result in more impasses given that many settlements require confidentiality.

“Today was a mess and it cannot be how the state resolves complex litigation going forward,” Rep. Evan Goyke of Milwaukee said.

Rep. Chris Taylor of Madison said she believes the closed session was illegal because the committee has no attorneys to consult. Nygren said Steve Fawcett from Assembly Speaker Robin Vos’ staff and Jessie Augustyn from Senate Majority Leader Scott Fitzgerald’s staff served as the panel’s lawyers.

The Wisconsin Bar Association website shows both are licensed to practice law in Wisconsin. Democratic Sen. Jon Erpenbach of Middleton complained that the committee never formally appointed them as its attorneys. He also predicted Republicans would be harshly criticized for the closed session.

“There was a day when we were better than this,” Erpenbach said. “People are going to find out about this and say ‘what the hell is going on there?’”

Nygren countered that attorney generals have been unilaterally settling lawsuits for as long as he could remember. He said involving the finance committee “helps the public understand it better, not worse.”

Kaul spokeswoman Gillian Drummond said the state Department of Justice has until Friday to agree to the settlement.

It was unclear where things stood as the meeting broke up. Nygren and other Republicans ignored reporters on their way out of the room. Sen. Luther Olsen was the only Republican who spoke to reporters, and he shrugged his shoulders and said he didn’t know what was going on.

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