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On June 17, 2025, the Wisconsin Supreme Court held that a provision of state law requiring the Wisconsin Department of Justice (WDOJ) to seek approval from a legislative committee prior to settling certain civil cases is unconstitutional as applied to two categories of cases, including civil enforcement actions. The Court’s decision means that WDOJ will no longer be required to obtain approval from the Legislature’s Joint Finance Committee prior to settling environmental enforcement cases referred to WDOJ by the Wisconsin Department of Natural Resources.

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The Court’s unanimous opinion in Kaul, et al. v. Wisconsin State Legislature, et al., 2025 WI 23, concludes that the legislative approval requirement in Wis. Stat. § 165.08(1) violates the Wisconsin Constitution’s separation of powers in at least two categories of cases: civil enforcement actions and “cases that DOJ brings at the request of executive branch agencies for programs those agencies are statutorily charged with administering.”

“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. . . . [T]he 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,” the Court wrote.

In a prior case, the Court rejected a facial challenge to the statute, concluding that there were at least some conceivable constitutional applications of the legislative approval requirement. Service Employees International Union, Local 1 v. Vos, 2020 WI 67. The Court’s decision in Kaul narrows the universe of settlements that are subject to the legislative approval requirement.

In holding the legislative approval requirement unconstitutional in the two types of cases at issue in Kaul, the Court evaluated whether the authority to settle lawsuits is a task shared between the executive and legislative branches, or is instead solely vested in the executive branch. The Legislature argued that its “power of the purse” necessitates approval of WDOJ settlements based on its interest in the funds (e.g., fines or natural resources damages) that those settlements generate for the state’s coffers and setting policy for the state. WDOJ argued that the legislative approval requirement impinged upon a core executive power to enforce and execute state law.

The requirement that WDOJ seek legislative approval for proposed settlements is a rather recent addition to state law, passed during the “lame duck” period following the general election. The requirement was one of several measures intended to limit executive power and enhance legislative oversight.

Close-up of a wooden judge’s gavel resting on a sounding block in a courtroom setting.

Close-up of a wooden judge’s gavel resting on a sounding block.

Statute Requiring WDOJ to Obtain Legislative Approval Before Entering Certain Civil Settlements Held Unconstitutional

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