EXHIBIT 1 

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SUPREME COURT OF WISCONSIN

No. __________

ROBIN VOS, IN HIS OFFICIAL CAPACITY AS WISCONSIN ASSEMBLY SPEAKER,

ROGER ROTH, IN HIS OFFICIAL CAPACITY AS WISCONSIN SENATE 

PRESIDENT, JIM STEINEKE, IN HIS OFFICIAL CAPACITY AS WISCONSIN 

ASSEMBLY MAJORITY LEADER AND SCOTT FITZGERALD, IN HIS OFFICIAL 

CAPACITY AS WISCONSIN SENATE MAJORITY LEADER,

PETITIONERS,

V.

JOSH KAUL, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE 

STATE OF WISCONSIN,

RESPONDENT.

MEMORANDUM IN SUPPORT OF 

PETITION FOR ORIGINAL ACTION

Misha Tseytlin

State Bar No. 1102199

TROUTMAN SANDERS LLP

1 N. Wacker Drive, Ste. 2905 

Chicago, IL 60606

Telephone: (608) 999-1240

Facsimile: (312) 759-1939

misha.tseytlin@troutman.com

Eric M. McLeod

State Bar No. 1021730

Lisa M. Lawless

State Bar No. 1021749

HUSCH BLACKWELL LLP

33 E. Main Street, Suite 300

P.O. Box 1379

Madison, Wisconsin 53701-1379

Telephone: (608) 255-4440

Eric.McLeod@huschblackwell.com

Counsel for Legislative Petitioners

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TABLE OF CONTENTS

ISSUES PRESENTED BY THE CONTROVERSY ....1

INTRODUCTION .........................................................2

STATEMENT ON ORAL ARGUMENT AND 

PUBLICATION...................................................4

STATEMENT OF THE CASE .....................................4

A. THE RELEVANT STATUTORY PROVISIONS 

IN ACT 369 .........................................................4

B. THE ATTORNEY GENERAL NULLIFIES A 

SIGNIFICANT PORTION OF THESE 

PROVISIONS......................................................7

STANDARD OF REVIEW .........................................12

SUMMARY OF THE ARGUMENT...........................12

ARGUMENT...............................................................15

I. THE CONTROVERSY BETWEEN THE 

LEGISLATURE AND THE ATTORNEY 

GENERAL INVOLVES ISSUES OF GREAT 

PUBLIC IMPORTANCE, WARRANTING 

THIS COURT’S ASSERTION OF ITS 

ORIGINAL ACTION AUTHORITY ................15

II. THE ATTORNEY GENERAL’S 

INTERPRETATION OF SECTIONS 26, 27 

AND 30 IS LEGALLY WRONG.......................20

A. Section 26 Applies To “Any Civil Actions 

Prosecuted” By Attorney General, 

Without Regard To Whether There Have 

Been Pre-Suit Negotiations ...................21

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B. Sections 26 And 30 Apply When The 

Attorney General “Compromise[s]” His 

Defense Of State Law, Without Regard To 

Whether The Attorney General Obtains 

Concessions From Opposing Parties .....24

C. Section 27 Requires The Attorney General 

“To Deposit All Settlement Funds Into 

The General Fund,” And Is Not Limited 

By Section 26 In Any Respect................31

CONCLUSION ...........................................................37

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TABLE OF AUTHORITIES

Page(s)

Cases

Burkes v. Klauser,

185 Wis. 2d 308, 517 N.W.2d 503 (1994)....................................1

Citizens Util. Bd. v. Klauser,

194 Wis. 2d 484, 534 N.W.2d 608 (1995)..................................15

Cty. of Dane v. Labor & Indus. Review Comm’n,

2009 WI 9, 315 Wis. 2d 293, 759 N.W.2d 571 ..........................21

Petition of Heil,

230 Wis. 428, 284 N.W. 42 (1939).................................15, 16, 18

Int’l Ass’n of Machinists Dist. Ten & Local Lodge 873 

v. Allen,

904 F.3d 490 (7th Cir. 2018) .....................................................29

State ex rel. Kalal v. Circuit Court for Dane County,

2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 ................ passim

State ex rel. Kleczka v. Conta,

82 Wis. 2d 679, 264 N.W.2d 539 (1978)..............................16, 19

Koschkee v. Taylor,

2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600 ........................15

Moustakis v. State of Wis. Dep’t of Justice,

2016 WI 42, 368 Wis. 2d 677, 880 N.W.2d 142 ........................12

State ex rel. Ozanne v. Fitzgerald,

2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436 ..........................15

Panzer v. Doyle,

2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666 ........................15

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State ex. rel. Reynolds v. Zimmerman,

22 Wis. 2d 544, 126 N.W.2d 551 (1964)....................................15

Richards v. Badger Mut. Ins. Co.,

2008 WI 52, 309 Wis. 2d 541, 749 N.W.2d 581 ......21, 23, 26, 32

Risser v. Klauser,

207 Wis. 2d 176, 558 N.W.2d 108 (1997)..................................15

Serv. Emps. Int’l Union, Local I v. Vos,

Nos. 2019AP614-LV, 2019AP622 ...............................................2

State v. Debra A.E.,

188 Wis. 2d 111, 523 N.W.2d 727 (1994)..................................26

State v. James P.,

2005 WI 80, 281 Wis. 2d 685, 698 N.W.2d 95 ..........................34

State v. Popenhagen,

2008 WI 55 and 21, 309 Wis. 2d 601, 

749 N.W.2d 611..........................................................................34

State ex rel. Wis. Senate v. Thompson,

144 Wis. 2d 429, 424 N.W.2d 385 (1988)..................................15

Constitutional Provisions

Wis. Const. art. VII, § 3..................................................................15

Wis. Const. art. VIII, § 2 ..........................................................18, 32

Statutes and Rules

2017 Wisconsin Act 369..........................................................passim

Wis. Stat. § 20.001..............................................................33, 34, 36

Wis. Stat. § 20.455.................................................................. passim

Wis. Stat. § 20.906....................................................................34, 36

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Wis. Stat. § 25.20............................................................................32

Wis. Stat. § 165.08.................................................................. passim

Wis. Stat. § 165.08 (2017) ..........................................................5, 27

Wis. Stat. § 165.10............................................................6, 7, 31, 32

Wis. Stat. § 165.10 (2017) ................................................................6

Wis. Stat. § 165.25.................................................................. passim

Wis. Stat. § 165.25 (2017) ..........................................................6, 27

Wis. Stat. § 893.825........................................................................33

SCR 20:1.2.......................................................................................26

Other Authorities

American Heritage Dictionary of the English 

Language 274 (1st ed. 1980) .....................................................25

Black’s Law Dictionary (11th ed. 2019) ............................22, 23, 32

Legislative Reference Bureau, Wisconsin Bill 

Drafting Manual 2019–2020.....................................................36

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ISSUES PRESENTED BY THE CONTROVERSY

1. Whether Section 26 of Act 369 applies to “[a]ny civil 

action prosecuted by” the Attorney General,

1 including when 

the Attorney General has engaged in some manner of prelawsuit negotiations.

2. Whether Sections 26 and 30 of Act 369 apply when 

the Attorney General “compromise[s]” the State’s litigation 

interests, regardless of whether the Attorney General 

obtains concessions from opposing parties in exchange for 

the compromise.

3. Whether Section 27 of Act 369 requires the Attorney 

General to deposit “all settlement funds into the general 

fund,” so that those funds are available for general revenue, 

and is not limited by Section 26 in any respect.

 

1 This Memorandum refers to statutes that mention the “Department of 

Justice” as “Attorney General.” See Burkes v. Klauser, 185 Wis. 2d 308, 322, 

517 N.W.2d 503 (1994) (“[t]he Attorney General is head of the Department of 

Justice”).

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INTRODUCTION

Soon after this Court stayed the Circuit Court’s 

injunction blocking Sections 26 and 30 of 2017 Act 369, see

Serv. Emps. Int’l Union, Local I v. Vos, Nos. 2019AP614-LV, 

2019AP622 (hereinafter after “SEIU”), App. 1, the Attorney 

General told the Legislature that he intended to nullify a 

significant portion of these very provisions. First, as to

Section 26, he would not permit the Legislature to have a 

seat at the table when the Attorney General settles lawsuits 

that he files, where there has been some manner of prelawsuit negotiations. Second, as to both Sections 26 and 30, 

he would often not give the Legislature a seat at the table

when he compromises the defense of Wisconsin laws unless 

he also obtains some concession from opposing parties in 

exchange. Third, as to Section 27, which requires him to 

deposit “all settlement funds into the general fund,” he 

would treat this provision as only applying to the narrow 

subset of cases to which he believes Section 26 applies. 

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The Legislature, speaking through the same leaders 

that are named defendants in SEIU,

2 respectfully requests 

that this Court resolve the purely legal question of whether 

the Attorney General can effectively nullify a significant 

portion of these provisions’ operation. In SEIU, this Court

recognized the importance of Sections 26 and 30 by taking 

jurisdiction over a challenge to those provisions’

constitutionality, on its own motion. This case presents a 

natural complement to SEIU: in SEIU, the Attorney General 

asks this Court to invalidate Sections 26 and 30, whereas in 

this case, the Attorney General is nullifying a significant 

portion of those provisions’ operations and using that 

interpretation to narrow the scope of Section 27, as well, 

thereby unlawfully seizing large sums of money that belong 

to the people of this State. And, as in SEIU, only this Court 

can resolve the purely legal disputes here.

Given these considerations, if this Court grants this 

Petition, this Court may wish to consolidate this case for oral 

 

2 In SEIU, this Court correctly explained that these legislative leaders, 

referred to there as “Legislative Defendants,” “represented” the 

Legislature. App. 57.

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argument and decision with SEIU. To give this Court that 

option, the Legislature would be willing to consent to this 

Court treating this Memorandum as the Legislature’s 

Opening Brief on the merits, thereby permitting this Court 

the choice of concluding briefing in this case in advance of 

the October 21, 2019 oral argument in SEIU.

STATEMENT ON ORAL ARGUMENT AND 

PUBLICATION

If this Court grants the Petition for Original Action, 

that would indicate that this case is appropriate for 

argument and publication.

STATEMENT OF THE CASE

A. The Relevant Statutory Provisions In Act 369

In December 2018, the Legislature enacted 2017 

Wisconsin Act 369, hereinafter Act 369. 

As relevant here, Section 26 of Act 369 renumbered 

Wis. Stat. § 165.08 to Wis. Stat. § 165.08(1), and amended 

this provision to give the Legislature a seat at the table when 

the Attorney General settles certain prosecution-side cases, 

meaning that the Legislature and the Attorney General 

must agree when giving up the client’s—the State’s—

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interest in these cases. In particular, Section 26 provides

that “[a]ny civil action prosecuted by the department . . . may 

be compromised or discontinued” only with the Legislature’s 

approval, as intervenor; or, if there is no intervenor, with the 

approval of the Joint Committee on Finance (“JFC”). Wis. 

Stat. § 165.08(1). Prior to Act 369, Wis. Stat. § 165.08 

provided that “[a]ny civil action prosecuted by the 

department by direction of any officer, department, board or 

commission, shall be compromised or discontinued where so 

directed by such officer, department, board or commission.” 

Id. § 165.08 (2017). Civil actions prosecuted “on the 

initiative of the attorney general, or at the request of any 

individual may be compromised or discontinued with the 

approval of the governor.” Id. 

Section 30 renumbered Wis. Stat. § 165.25(6)(a) to 

Wis. Stat. § 165.25(a)1 to give the Legislature a seat at the 

table when the Attorney General settles certain defense-side 

cases, meaning that the Legislature and the Attorney 

General must agree when giving up the client’s—the 

State’s—interest in defending the constitutionality or 

validity of state law. In particular, under the amended 

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statute, “if the action is for injunctive relief or there is a 

proposed consent decree, the attorney general may not 

compromise or settle the action” unless the Legislature, as 

intervenor, approves; or, if there is no intervenor, with the 

approval of the JFC. Id. Prior to Act 369, this statute stated

that the Attorney General could compromise defense-side 

actions “as the attorney general determines to be in the best 

interest of the state.” Id. § 165.25(6)(a) (2017).

Finally, Section 27 amended Wis. Stat. § 165.10 to 

provide that all settlement funds that the Attorney General 

collects and has authority to control would now go into the 

general fund and would no longer go into specific accounts, 

including Wis. Stat. § 20.455(3)(g), an account controlled by 

the Attorney General, subject to oversight by the JFC. In 

particular, prior to Act 369, Wis. Stat. § 165.10 provided that 

“before the attorney general may expend settlement funds 

under s. 20.455(3)(g) that are not committed under the terms 

of the settlement, the attorney general shall submit to the 

joint committee on finance a proposed plan for the 

expenditure of the funds.” Wis. Stat. § 165.10 (2017). 

Section 27 amended Wis. Stat. § 165.10 to provide that “[t]he 

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attorney general shall deposit all settlement funds into the 

general fund.” Wis. Stat. § 165.10. Sections 21 and 103(1) 

completed this reform by prohibiting the Attorney General 

from spending money that he previously deposited into the

Wis. Stat. § 20.455(3)(g) account and then lapsing all of the 

remaining, unencumbered funds into the general fund. Wis. 

Stat. § 20.455(3)(g). 

B. The Attorney General Nullifies A Significant 

Portion Of These Provisions

On June 17, 2019, the Attorney General sent a letter 

to Senator Alberta Darling and Representative John

Nygren, the Chairs of the JFC (collectively, the “Chairs”), 

describing his interpretation and ongoing implementation of 

Sections 26 and 30. App. 63. As relevant here, the Attorney 

General explained that, under his view, Section 26 does not 

apply when there is “pre-suit resolution of disputes,” when 

the Attorney General subsequently files a complaint and a 

consent judgment, or to cases where the court has entered a 

final judgment. Id. The Attorney General also explained 

that he interprets Section 30 not to apply to his decision to 

dismiss an appeal or not to take an appeal. Id. The Attorney 

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General thus made clear that he would not be submitting 

decisions that fell outside of his view of Sections 26 and 30 

to the JFC for review and approval.

On June 21, 2019, the Chairs responded to the 

Attorney General’s June 17, 2019 letter. App. 65. With 

regard to Section 26, this statute clearly provides that the 

Attorney General “cannot ‘compromise[] or discontinue[]’

‘[a]ny civil action prosecuted’ by [his] office, without 

obtaining the statutorily-required consent.” Id. The 

Attorney General identified no legal basis for his conclusion 

that Section 26 did not apply to cases that he filed in court 

following pre-suit negotiations and then discontinued or 

settled with a consent judgment. Id. at 65–66. Similarly, the 

Attorney General offered no legal basis for his contention 

that this statute did not apply to cases in which an adverse

final judgment had been entered but appellate review was 

available. Id. at 66. As to Section 30, the plain language of 

this statute applies to “any compromises or settlements” by 

the Attorney General, including written settlement 

agreements, decisions not to seek appellate review of an 

injunction blocking the laws of Wisconsin, or the 

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discontinuance of an appeal of such an injunction. Id.

(emphasis in original). Finally, the Attorney General 

appeared to “be in violation of [Section 27],” which required 

that him deposit “all settlement funds into the general fund.” 

Id. at 65. As of the date of the letter, it appeared that the 

Attorney General had not deposited any settlement funds 

into the general fund. Id.

The Attorney General replied to the Chairs on June 

28, 2019. App. 70. The Attorney General asserted that 

Section 26 does not apply to pre-suit agreements because, in 

his view, when the Attorney General files a lawsuit for the 

purpose of seeking an enforceable consent judgment from 

the court, the court is “availing itself of judicial mechanisms 

for enforcing a resolution,” not “in any meaningful sense 

prosecuting a civil action.” Id. at 71 (emphasis in original). 

The Attorney General also asserted that Section 26 does not 

apply when he decides not to appeal. Id. at 72. As to Section 

30, the Attorney General claimed that a decision not to 

appeal or to dismiss an appeal in a defense-side action is not, 

in his view, subject to Section 30 because these decisions 

“require[] the involvement of only one party.” Id. Finally, 

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the Attorney General discussed Section 27, claiming that the 

application of this statute was complicated in several 

respects not relevant to this Petition. Id. As relevant here, 

the Attorney General claimed that Section 27 must be read 

to cover only those cases covered by Section 26. Id. at 73.

The Chairs responded on July 2, 2019. App. 74. The 

Attorney General was incorrect in his assertion that Section 

26 did not apply to civil lawsuits filed after a pre-suit 

agreement because “once the Department files a civil lawsuit 

in court, it is plainly prosecuting a civil action, regardless of 

what negotiations led up to the filing.” Id. at 75. As to both 

Sections 26 and 30, the decision not to appeal an unfavorable 

final judgment or to dismiss an appeal “is the quintessential 

compromise of the civil action” because these actions

“deprive higher courts of jurisdiction to correct an erroneous 

trial court judgment, potentially having massive effects on 

the State’s finances,” or “leav[e] no appellate court with 

jurisdiction to correct a potentially erroneous[] injunction 

blocking the laws of this State.” Id. at 76. Finally, Section 

27 requires the Attorney General to deposit “any funds” that 

he “derives from settling any legal dispute” in the general 

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fund. Id. (emphasis in original). The Attorney General’s 

attempt to limit this statute to cases requiring approval 

under Section 26 is atextual. Id. at 75–76. The Chairs also 

attached a memo, dated June 11, 2019, from the Legislative 

Fiscal Bureau, which showed that the Attorney General had 

received approximately $20.19 million in funds during the 

first five months of 2019 but had deposited no money into 

the general fund. Id. at 78. The Chairs demanded that the 

Attorney General deposit all settlement funds into the 

general fund by July 15, 2019 or explain where this money 

came from if not from settlements. Id. at 77.

The Attorney General responded on July 15, 2019. 

App. 82. The Attorney General called the Chairs’

explanation regarding Section 26 a “conclusory assertion” 

but did not respond to the Chairs’ legal analysis. Id. at 83. 

The Attorney General reasserted that Sections 26 and 30 do

not apply to the decision not to appeal. Id. at 83–84. Finally, 

the Attorney General reasserted his claim that Section 27 

applies to the same cases as Section 26. Id. at 85. He then 

bizarrely claimed that settlement funds “deposited into the 

general fund” need not even be “deposited as 

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nonappropriated receipts,” id. at 84 (emphasis omitted), but 

could be “credited to the appropriation account under Wis. 

Stat. § 20.455(3)(g).” Id.

STANDARD OF REVIEW

Although there is no decision below for this Court to

review, statutory interpretation presents a pure question of 

law. Moustakis v. State of Wis. Dep’t of Justice, 2016 WI 42, 

¶ 16, 368 Wis. 2d 677, 880 N.W.2d 142.

SUMMARY OF THE ARGUMENT

I. This Court should grant the Petition for Original 

Action, under well-established standards for deciding issues 

of great, statewide importance, where prompt, purely legal

resolution is in the public interest. This case involves an 

effort by the Attorney General to effectively nullify a 

significant portion of the operation of several provisions in 

Act 369. Prompt resolution of this legal dispute is of the 

essence to the public interest because, absent this Court’s 

action, the Attorney General has made clear that he will 

continue to settle cases without giving the Legislature its 

statutory seat at the table, and will continue to retain large

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sums of money for his own use, when that money rightfully 

belongs to the people. And this case presents only purely 

legal issues of statutory interpretation, meaning that no 

factfinding by this Court would be needed.

II. The Attorney General’s efforts to effectively nullify 

several provisions in Act 369 fail as a matter of law.

A. Section 26 provides that the Attorney General must 

give the Legislature a seat at the table in any compromise or 

discontinuance of “[a]ny civil action prosecuted” by the 

Attorney General. “Any civil action prosecuted,” means just 

what it says, and is not limited by the Attorney General’s 

claim—supported by no statutory text—that he can avoid 

giving the Legislature a voice by engaging in pre-lawsuit 

negations and then filing suit and settling.

B. Sections 26 and 30 provide, in relevant part, that 

the Legislature must have a seat at the table when the 

Attorney General “compromise[s]” the State’s interest in 

certain litigations. Contrary to the Attorney General’s 

submission, he cannot evade this requirement when he 

compromises the State’s interests by declining to file a 

timely notice of appeal or dismissing a pending appeal. 

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These litigation actions are the ultimate compromise of the 

State’s interests, as they often leave appellate courts with no 

jurisdiction to overturn, for example, a potentially erroneous 

injunction blocking the laws of this State. The State, as the 

client, must have a say when its lawyer seeks to abandon its 

core interests in litigation, and Sections 26 and 30 make 

clear that the Legislature has a seat at the table in the 

decision as to whether the State should give up its interests 

in defending one of the Legislature’s laws.

C. Section 27 provides that “[t]he attorney general 

shall deposit settlement funds into the general fund.” The 

plain meaning and context of this statute make clear that 

Section 27 requires the Attorney General to deposit all of the 

funds that he recovers from settlements and has the right to 

control into the general fund. The Attorney General’s claim 

that this statute applies only to those settlements covered by 

his already unduly narrow view of Section 26’s reach—

thereby allowing him to retain moneys for his office’s use 

that rightfully belong to the people—is entirely atextual.

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ARGUMENT

I. The Controversy Between The Legislature And 

The Attorney General Involves Issues Of Great 

Public Importance, Warranting This Court’s 

Assertion Of Its Original Action Authority

A. In deciding whether to grant a petition for original 

action, Wis. Const. art. VII, § 3, this Court looks to several 

considerations, with the most important factor being 

whether “the questions presented are of [great, statewide] 

importance,” such as issues that are “publici juris.” Petition 

of Heil, 230 Wis. 428, 443–46, 284 N.W. 42 (1939). Cases 

raising issues of separation of powers have often met this 

standard. See, e.g., Koschkee v. Taylor, 2019 WI 76, 387 Wis. 

2d 552, 929 N.W.2d 600; State ex rel. Ozanne v. Fitzgerald, 

2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436; State ex. rel. 

Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551 

(1964). As have cases brought by the Legislature, its 

committees, and members. See, e.g., Panzer v. Doyle, 2004 

WI 52, 271 Wis. 2d 295, 680 N.W.2d 666; Risser v. Klauser, 

207 Wis. 2d 176, 558 N.W.2d 108 (1997); Citizens Util. Bd. v. 

Klauser, 194 Wis. 2d 484, 534 N.W.2d 608 (1995); State ex 

rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 424 N.W.2d 

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385 (1988); State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 264 

N.W.2d 539 (1978). This Court also considers whether the 

petition raises some manner of “exigency.” Heil, 230 Wis. at 

447. And this Court is more likely to grant a petition where 

a “speedy and authoritative resolution” is possible due to 

limited material factual disputes, id. at 446, such that “no 

fact-finding procedure is necessary,” State ex rel. Kleczka v. 

Conta, 82 Wis. 2d 679, 683, 264 N.W.2d 539 (1978).

B. The purely legal questions presented by this 

Petition qualify for this Court’s original action jurisdiction. 

Most importantly, “the questions presented are of

[great, statewide] importance,” such that these issues are

unquestionably “publici juris.” Heil, 230 Wis. at 446–48. 

The legal disputes as to the meaning of Sections 26 

and 30 are of great statewide importance. As this Court 

recognized in asserting jurisdiction, on its own motion, over 

the appeals in SEIU, Sections 26 and 30 are deeply 

important provisions. Through his claimed interpretation of 

these provisions, the Attorney General is effectively 

nullifying a significant portion of these provisions, 

notwithstanding this Court’s stay in SEIU. For example, the 

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Attorney General is taking the position that he can evade 

Section 26 by entering into litigation settlements through 

pre-lawsuit negotiations, and then filing a civil action and 

settling thereafter without legislative input. This evasion, if 

allowed to stand, has the effect of nullifying the Legislature’s

right to its seat at the table in important cases impacting the 

public fisc. Similarly, the Attorney General is taking the 

position that, under his understanding of Section 30, he can 

refuse to file a notice of appeal or can dismiss an already filed 

appeal in cases where a trial court blocks a Wisconsin law, 

so long as that compromise does not involve a settlement

agreement. When the Attorney General seeks to 

compromise away state law, this imposes harm of the “first 

magnitude” on the “Legislature and . . . the people.” App. 57. 

By unilaterally compromising away cases where he has not 

entered into a settlement agreement, the Attorney General 

continues to nullify the Legislature’s statutory right to a seat 

at the table to protect the laws that it enacted. 

The dispute as to the meaning of Section 27 is also of 

statewide importance. While Legislative Petitioners do not 

ask this Court to decide how much money the Attorney 

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General is unlawfully withholding from the general fund, in 

violation of this law, that amount appears to be a very large 

sum and growing. See supra, p. 11. This is the people’s 

money, not the Attorney General’s, and the Legislature has 

the constitutional authority to determine how this money 

should be spent. See Wis. Const. art. VIII, § 2. Absent this 

Court’s action, the Attorney General will continue to retain 

this money illegally, depriving the Legislature of its 

constitutional right to appropriate these funds for the 

people’s benefit. In addition, the Attorney General has taken 

the position that his interpretation of Section 27 turns 

entirely on his interpretation of Section 26, meaning that it 

makes sense for this Court to interpret both of these 

provisions together.

Granting this Petition is also important because the 

Legislature and the people will benefit from a “speedy and 

authoritative determination” as to the meaning of Sections 

26, 27, and 30. Heil, 230 Wis. at 446. In its decision granting 

a stay of the temporary injunction blocking Sections 26 and 

30 in SEIU, this Court explained that the Attorney General 

had admitted that he had unilaterally settled several cases 

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because of the temporary injunction. App. 57. This Court 

then held that even though the Circuit Court wrongly denied 

a stay, this Court “will not be able to direct the federal courts 

to vacate or reopen the judgments in those cases.” Id. As a 

result, the Legislature and the people suffered irreparable 

harm in cases such Allen v. International Association of 

Machinists, No. 18-855 (S. Ct. Apr. 19, 2019), where the 

Attorney General compromised away an important provision 

of Wisconsin’s right-to-work law without legislative input. 

See infra, pp. 30–31. Absent this Court’s speedy holding and 

declaration that the Attorney General is incorrectly 

interpreting these provisions, the same harms—irreversible, 

illegal settlements, without legislative input—are sure to 

befall the people and the Legislature.

Finally, the questions that the Legislature presents 

here are issues of purely legal, statutory interpretation, 

where “no fact-finding procedure is necessary.” Kleczka, 82 

Wis. 2d at 683. Importantly, while the Legislature and the 

Attorney General may have other disagreements about the 

meaning of provisions in Act 369 or about the handling of 

specific cases or funds, Legislative Petitioners have 

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specifically and purposefully limited this Petition to just

these purely legal questions, which this Court can decide by 

applying the statutory interpretation principles in State ex 

rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 

Wis. 2d 633, 681 N.W.2d 110.

II. The Attorney General’s Interpretation Of 

Sections 26, 27 And 30 Is Legally Wrong 

“[S]tatutory interpretation begins with the language 

of the statute”—and, if the meaning of that language is 

plain—ends there. Kalal, 2004 WI 58, ¶ 45 (citations 

omitted). “Statutory language is given its common, ordinary, 

and accepted meaning, except that technical or speciallydefined words or phrases” are at issue. Id. Context, 

structure and statutory history are important to plain 

meaning. “[S]cope, context, and purpose are perfectly 

relevant to a plain-meaning interpretation of an 

unambiguous statute as long as the scope, context, and 

purpose are ascertainable from the text and structure of the 

statute itself, rather than extrinsic sources, such as 

legislative history.” Id. ¶ 48. And “[a] review of statutory 

history is part of a plain meaning analysis” because it is part 

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of the context in which we interpret statutory terms. 

Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶ 22, 309 Wis.

2d 541, 749 N.W.2d 581; see Kalal, 2004 WI 58, ¶ 52 n.9; Cty. 

of Dane v. Labor & Indus. Review Comm’n, 2009 WI 9, ¶ 27, 

315 Wis. 2d 293, 759 N.W.2d 571.

Applying these principles to the statutory

interpretation of Sections 26, 27, and 30 of Act 369 shows 

that the Attorney General is plainly wrong, as a matter of 

law, in his interpretation of these provisions.

A. Section 26 Applies To “Any Civil Actions 

Prosecuted” By Attorney General, Without 

Regard To Whether There Have Been PreSuit Negotiations

Section 26 of Act 369 provides that “[a]ny civil action 

prosecuted by the department . . . may be compromised or 

discontinued” only if the Legislature, as intervenor, agrees; 

or, if the Legislature has not intervened, if the JFC approves. 

Wis. Stat. § 165.08(1). 

The plain meaning of this provision is that the 

Legislature has a right to a seat at the table when the 

Attorney General “compromise[s] or discontinue[s]” any civil 

legal action that he filed in court, without regard to whether 

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there have been some manner of pre-suit negotiations. The 

“common, ordinary, and accepted meaning,” Kalal, 2014 WI 

58, ¶ 45, of “civil action” is “[a]n action brought to enforce, 

redress, or protect a private or civil right; a noncriminal 

litigation,” Action, Black’s Law Dictionary (11th ed. 2019). 

And “prosecute” means “[t]o commence and carry out (a legal 

action).” Prosecute, Black’s Law Dictionary (11th ed. 2019). 

Taken together, this language has an obvious, unambiguous 

meaning: the Legislature’s rights under Section 26 obtain 

whenever the Attorney General “compromise[s] or 

discontinue[s]” any civil lawsuit that he has filed, without 

any caveats or exceptions.

2. The Attorney General’s interpretation of Section 

26—as not applying when there has been some manner of 

pre-suit negotiations, followed by a lawsuit filed by the 

Attorney General and a settlement—has no basis in the 

statutory text. In his June 28, 2019, and July 15, 2019, 

letters, the Attorney General asserted that Section 26 does 

not apply in cases in which he files a case following a presuit agreement so that a consent judgment can be entered 

because in these cases, the Attorney General “is not in any 

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meaningful sense prosecuting a civil action.” App. 71, 83

(emphasis in original). Contrary to the Attorney General’s 

assertions, Section 26 does not require him to prosecute an 

action in a “meaningful sense”—whatever that means—

before the Legislature’s right to a seat at the table obtains. 

Rather, Section 26 applies whenever the Attorney General 

prosecutes any civil action and thereafter compromises that 

action; that is when the Attorney General “commence[s] and 

carr[ies] out,” Prosecute, Black’s Law Dictionary (11th ed. 

2019), “[a]n action brought to enforce, redress, or protect a 

private or civil right,” Action, Black’s Law Dictionary (11th 

ed. 2019). Clearly, when the Attorney General files suit, and 

then obtains money in a settlement soon thereafter, the 

Attorney General has settled a lawsuit that he prosecuted.

The Attorney General’s interpretation of Section 26 is 

also inconsistent with statutory context and history. See 

Richards, 2008 WI 52, ¶ 22. Section 26 provides the 

Legislature with a seat at the table when the Attorney 

General compromises any civil actions that he is 

prosecuting. Under the Attorney General’s interpretation, 

see App. 63, 71, 83, he could deny the Legislature a right to 

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review settlements that have a substantial impact on the 

public fisc by engaging in pre-suit negotiations and then 

filing a complaint and settling to the pre-negotiated terms. 

Yet, if the Attorney General first filed the lawsuit, and then 

engaged in the same exact negotiations and entered into the 

exact same settlement, the Legislature would have a 

statutory right to a seat at the table. Nothing in Section 26’s 

plain text or statutory context supports such an illogical 

divergence between these two scenarios.

B. Sections 26 And 30 Apply When The 

Attorney General “Compromise[s]” His

Defense Of State Law, Without Regard To 

Whether The Attorney General Obtains

Concessions From Opposing Parties

Both Sections 26 and 30 of Act 369 provide that the 

Attorney General may not, as relevant here, “compromise[]” 

the litigation unless the Legislature, as intervenor, agrees; 

or, if the Legislature has not intervened, unless the JFC 

approves. Wis. Stat. §§ 165.08(1), 165.25(6)(a)1. In Section 

26, the term “compromise[]” comes paired with 

“discontinue[],” Wis. Stat. § 165.08(1), whereas in Section 30, 

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“compromise[]” comes paired with “settle,” Wis. Stat. 

§ 165.25(6)(a)1.

The “common, ordinary, and accepted meaning,” Kalal, 

2004 WI 58, ¶ 45, of “compromise,” as used in these two

statutes, encompasses litigation action by the Attorney 

General to give up the State’s interest in the case. In 

particular, “compromise,” as used in these provisions, is best 

understood to mean “[t]o give up (one’s interests[]).” The 

American Heritage Dictionary of the English Language 274 

(1st ed. 1980). This meaning of “compromise” as giving up 

one’s “interests” encompasses decisions by the Attorney 

General not to timely file an appeal or to dismiss an already 

filed appeal. Those decisions are the ultimate litigation 

compromises because these leave no appellate court with 

jurisdiction to review a potentially erroneous decision 

blocking the laws of this State, or otherwise ruling against 

the State’s litigation interests.

Although above-described definition of “compromise” 

is not the only possible definition of the term, it is the 

definition that is most consistent with statutory context and 

history. See Kalal, 2004 WI 58, ¶ 49 (“Many words have 

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multiple dictionary definitions; the applicable definition 

depends upon the context in which the word is used.”); 

Richards, 2008 WI 52, ¶ 22.

The decision to end a case after a loss at the trial 

court—such as by not filing a timely appeal or dismissing an 

appeal—is for the client, not the lawyer, to make. Wisconsin 

Supreme Court Rules (“SCR”) 20:1.2 (2017) (“[A] lawyer 

shall abide by a client’s decisions concerning the objectives 

of representation . . . . A lawyer shall abide by a client’s 

decision whether to settle a matter.”). An attorney cannot, 

for example, decline to file a timely appeal or dismiss an 

appeal against the client’s wishes and without the client’s 

consent: “The client must decide whether to file an appeal 

and what objectives to pursue, although counsel may decide 

what issues to raise once an appeal is filed.” State v. Debra 

A.E., 188 Wis. 2d 111, 125–26, 523 N.W.2d 727 (1994).

The state officer who makes the decisions for the State

as client is a more complicated issue than in the traditional 

attorney-client case, see SCR 20, pmbl. ¶ 18; before Act 369, 

Wis. Stat. §§ 165.08, 165.25(6)(a) provided that the identity 

of the official/bodies who had the authority to make the 

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decision usually committed to the client as follows. The 

Attorney General could only “compromise[]” a prosecutionside case with the agreement of the officer, department, 

board, or commission that authorized the suit, or, in other 

cases, with the Governor’s agreement. Wis. Stat. § 165.08 

(2017). The Attorney General could compromise defenseside actions “as the attorney general determines to be in the 

best interest of the state,” without seeking approval from 

any other state official. Wis. Stat. § 165.25(6)(a) (2017). Put 

another way, in prosecution-side cases, these pre-Act 369 

provisions put the Attorney General into cooperative 

relationships with the officer, department, board, 

commission, or Governor, to make the decisions usually 

reposed in the client, and, in defense-side case, statutory law 

gave the Attorney General the authority to make these 

decisions for the State unilaterally.

Act 369 amended these statutes to require the 

Attorney General to obtain the Legislature’s agreement

before compromising civil actions prosecuted by the Attorney 

General or compromising certain defense-side actions. 

Sections 26 and 30 thus provide that the Legislature and the 

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Attorney General now must work together to make the 

compromise decisions that are normally reposed in the 

client, including whether to file an appeal from an adverse 

decision and whether to dismiss an appeal. Under this 

cooperative statutory regime, both the Legislature and the 

Attorney General must agree if the Attorney General is to 

abandon the typical ends of litigation for the State or its 

officers, when sued in official capacity: defending state law 

and/or the public fisc.

2. The Attorney General’s claim that “compromise[],” 

as used Sections 26 and 30, does not apply when the 

Attorney General declines to file a timely appeal or 

dismisses an appeal is legally wrong.3 According to the 

Attorney General, Sections 26 and 30’s “compromise[]” 

aspect applies whenever the Attorney General gets 

something in exchange for abandoning his defense of state 

law or the public fisc, but not where the Attorney General 

 

3 The Attorney General appears to concede that dismissing the 

appeal of a civil action prosecuted by the Attorney General 

qualifies as “discontinu[ing]” the civil action and is subject to the 

Legislative approval under Section 26. See App. 72. 

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does not get anything in exchange for such a compromise of 

the State’s litigation interests.

The Attorney General’s interpretation of the term 

“compromise[]” is contrary to the dictionary definition and 

statutory context, as discussed above. Both the text and 

statutory context make clear that Sections 26 and 30 give 

the Legislature a seat at the table with the Attorney General 

when making litigation compromise decisions that are

usually committed to the client, such as declining to file a 

timely notice of appeal or dismissing an appeal. Nothing 

about the statutory text or context suggests that the 

Attorney General getting something in return for 

abandoning the State’s litigation interests is relevant to the 

term “compromise[].”

That the Attorney General’s position undermines the 

core purposes of Sections 26 and 30 is well-illustrated by the 

Attorney General’s actions in Allen. In that case, the 

Attorney General defended an important provision of 

Wisconsin’s right-to-work law before the district court and 

the Seventh Circuit. After the Seventh Circuit held that this 

provision was preempted by federal law, in a divided, 2-1 

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decision, see Int’l Ass’n of Machinists Dist. Ten & Local

Lodge 873 v. Allen, 904 F.3d 490 (7th Cir. 2018), the Attorney 

General filed a petition for a writ of certiorari. Numerous 

amici filed briefs in support of the Attorney General’s 

petition, including several States. However, after the Circuit 

Court temporary enjoined Section 30, the Attorney General 

entered into an agreement with the plaintiffs to dismiss the 

fully briefed certiorari petition, the day before the U.S. 

Supreme Court was set to consider the petition at its 

conference. See Wisconsin Department of Justice Resolves 

Challenge to Wisconsin Law Regarding Dues Checkoff 

Authorizations (May 31, 2019), available at 

https://www.doj.state.wi.us/sites/default/files/ 

newsmedia/5.31.19_Machinists_Modified_Judgment.pdf

(last visited July 31, 2019). Pursuant to this agreement, the 

Attorney General withdrew the petition, thereby 

abandoning his defense of state law. App. 86.

The Allen case shows the nonsensical nature of the 

Attorney General’s understanding of Sections 26 and 30. 

Under the Attorney General’s interpretation of Section 30, 

the Attorney General’s decision to withdraw his petition in 

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Allen, pursuant to his agreement with the plaintiffs, would 

have required the Legislature’s consent, absent the thenapplicable temporary injunction. However, under the 

Attorney General’s interpretation of Section 30’s reach, his 

decision to withdraw the petition would not have required 

legislative input so long as the Attorney General had not 

entered into an agreement. Put another way, whether the 

Legislature got a seat at the table in the Attorney General’s 

abandonment of state law would turn on whether the 

Attorney General got something in return for this surrender

of the State’s core interests on behalf of a state party. 

Nothing in the text or statutory context or history of Sections 

26 and 30 supports such a nonsensical result.

C. Section 27 Requires The Attorney General

“To Deposit All Settlement Funds Into The 

General Fund,” And Is Not Limited By 

Section 26 In Any Respect

1. Section 27 of Act 369 provides that “[t]he attorney 

general shall deposit settlement funds into the general 

fund.” Wis. Stat. § 165.10. 

Section 27 could not be clearer, as a matter of plain, 

statutory text: the Attorney General must deposit all

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moneys that he recovers and has authority to control from 

settlements into general revenue—the general fund, Wis. 

Stat. § 25.20—so that the Legislature can decide how this 

money is spent, pursuant to its constitutional authority. See 

Wis. Const. art. VIII, § 2. A settlement is “[a]n agreement 

ending a dispute or a lawsuit.” Settlement, Black’s Law 

Dictionary (11th ed. 2019). Thus, the meaning of Section 27 

is that the Attorney General must deposit into the general 

fund all sums that he obtains and has authority to control

from an agreement ending a dispute or a lawsuit.

Statutory context and history underscore Section 27’s 

plain text as requiring the Attorney General to deposit all

settlement funds that the Attorney General receives and has 

authority to control into the general fund, for general 

revenue. Richards, 2008 WI 52, ¶ 22; Kalal, 2004 WI 58, 

¶ 48. Prior to Act 369, Wis. Stat. § 165.10 and Wis. Stat. 

§ 20.455(3)(g) permitted the Attorney General to credit 

settlement funds into specific accounts, including Wis. Stat. 

§ 20.455(3)(g), an account that the Attorney General 

controlled and could spend from, with JFC oversight. In 

Section 27, the Legislature changed this structure of 

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permitting the Attorney General to have presumptive 

control over settlement funds, subject to JFC oversight, to a 

regime where the Attorney General must deposit all 

settlement funds into the general fund for general 

appropriations. And then, the Legislature completed this 

reform, in Sections 21 and 103(1), by prohibiting the 

Attorney General from spending the settlement money that 

he previously deposited into the Wis. Stat. § 20.455(3)(g) 

account and lapsing all unencumbered funds into the 

general fund. Wis. Stat. § 20.455(3)(g). 

A more granular understanding of the nature of the 

general fund makes this statutory context and history even 

more plain. The general fund consists of two types of 

revenues: general purpose revenues and program revenues. 

General purpose revenues “consist of general taxes, 

miscellaneous receipts and revenues collected by state 

agencies which are paid into a specific fund, lose their 

identity, and are then available for appropriation by the 

legislature.” Wis. Stat. § 20.001(2)(a) (emphasis added). 

Program revenues “consist of revenues which are paid into 

the general fund and are credited by law to an appropriation 

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to finance a specified program or state agency.” Wis. Stat. 

§ 20.001(2)(b). Pursuant to Wis. Stat. § 20.906(1), there is a 

statutory presumption that “moneys paid into the treasury 

shall be credited to the general purpose revenues of the 

general fund unless otherwise specifically provided by law.” 

That means that by requiring the Attorney General to 

deposit money into the general fund, without any caveats or 

qualification, Section 27 required the Attorney General to 

ensure that this money flows to general revenue. Accord

Legislative Reference Bureau, Wisconsin Bill Drafting 

Manual 2019–2020, § 20.01(2)(b) (distinguishing between 

“[m]oneys are ‘deposited’ into funds” and “[m]oneys . . . 

‘credited’ to appropriation accounts within funds”); State v. 

Popenhagen, 2008 WI 55, ¶ 41 nn. 20 and 21, 309 Wis. 2d 

601, 749 N.W.2d 611 (looking to the Bill Drafting Manual for 

statutory interpretation); State v. James P., 2005 WI 80, 

¶ 25, 281 Wis. 2d 685, 698 N.W.2d 95 (same).

2. The Attorney General’s claim in his June 28, 2019

and July 15, 2019 letters that Section 27 applies only to 

funds collected from the settlement of civil actions under 

Section 26 is an atextual invention. App. 73, 85. Unlike 

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Section 26, Section 27 does not limit its application to “civil 

actions” or to situations in which the Attorney General is 

“prosecut[ing]” such a civil action. Kalal, 2004 WI 58, ¶ 46. 

Instead, as discussed above, the plain meaning of Section 27 

makes clear that this statute requires the Attorney General 

to deposit all funds derived from an agreement to end any 

dispute or lawsuit in the general fund, for general revenue.

For the same reason, the Attorney General’s claim in 

his June 28, 2019, and July 15, 2019 letters that Section 27 

does not apply when the Attorney General derives 

settlement funds from a lawsuit filed after pre-suit 

negotiations—under the Attorney General’s erroneous view 

of Section 26’s reach, see supra pp. 21–31—is unsupported 

by the plain meaning of this statute. The language in 

Section 27 does not provide an exception for settlement 

agreements that result from pre-suit agreements. Indeed, 

the Attorney General’s interpretation here would allow him 

to evade the plain purpose of Section 27—to provide that all 

settlement funds that the Attorney General recovers are for 

the people’s, not the Attorney General’s, use—by negotiating 

prior to filing a lawsuit, instead of after.

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Finally, the Attorney General’s bizarre assertion in his 

July 15, 2019 letter—that he can satisfy Section 27 by 

crediting settlement funds to the appropriation account 

under Wis. Stat. § 20.455(3)(g), App. 84—is an obvious, 

unlawful effort to retain for his office money that rightfully 

belongs to the people. As noted above, in Section 27, as well 

as in Sections 21 and 103(1), the Legislature repealed the 

prior regime where the Attorney General could credit 

settlement funds into specific accounts, include the Wis. 

Stat. § 20.455(3)(g) account, replacing this with a simple 

requirement that all Attorney General settlement funds are 

deposited into the general fund, for general revenue 

purposes. After all, “moneys paid into the treasury shall be 

credited to the general purpose revenues of the general fund 

unless otherwise specifically provided by law.” Wis. Stat. 

§ 20.906(1); accord Legislative Reference Bureau, Wisconsin 

Bill Drafting Manual 2019–2020, § 20.01(2)(b). The 

Attorney General’s statement would also render Sections 21, 

27, and 103(1) a nullity by permitting the Attorney General 

to continue to deposit settlement funds into the Wis. Stat. 

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