Act 369 Litigation Update

The Wisconsin Legislature passed 2017 Act 369 as part of the extraordinary session laws last December. Among other things, Act 369 limited the authority of the attorney general, created a provision for the legislature to intervene at any time in a case, and added requirements for agency guidance documents. Litigation swiftly followed passage of the act. Brief summaries and updates to the cases provided below.

Direct Cases

Robin Vos v. Josh Kaul – 2019AP001389. On August 1, 2019, the Wisconsin Legislature filed the most recent suit in the Act 369 litigation as an original action to the Wisconsin Supreme Court against Attorney General Josh Kaul. The complaint alleges the AG impermissibly undermined Act 369 by narrowly interpreting when settlements require review by the Joint Finance Committee and by refusing to put settlement money in the general fund.

The case has been on hold as of September 2019, presumably awaiting a ruling in SEIU v. Vos.

SEIU v. Robin Vos – 2019AP000622. Filed March 26, 2019, the Service Employees International Union (SEIU) challenges the constitutionality of Act 369. SEIU claims the new provisions violate Wisconsin’s constitutional separation of powers by giving the legislature exclusively executive authority over rulemaking, AG lawsuits, and settlement provisions.

The Wisconsin Supreme Court took the case in April 2019 and heard oral arguments in October. As of June 2020, no ruling has been released.

League of Women Voters v. Evers – 2019AP000559. The Wisconsin Supreme Court released a decision on June 11 declaring the 2018 extraordinary session laws constitutional.

The case challenged 2017 Acts 368, 369, and 370 and the confirmation of 82 appointments on the grounds that the extraordinary session laws were not constitutionally convened under Art. IV, § 11. The Wisconsin Supreme Court took the case as an action of original jurisdiction.

Federal

Additionally, two federal cases currently sit at the U.S. District Court for the Western District of Wisconsin: Democratic Party of Wisconsin v. Vos and One Wisconsin Institute Inc. v. Thomsen.

Filed February 21, 2019, Democratic Party of Wisconsin v. Vos challenges the extraordinary session laws on the grounds that they violate the U.S. Constitution’s Guarantee Clause. The case remains at Wisconsin Western District Court and is not expected to be resolved soon.

One Wisconsin Institute Inc. v. Thomsen, meanwhile, involves a 7th Circuit case decided in 2016. A federal trial court held Act 369’s voting provisions violate the case’s earlier ruling.

Other Relevant Cases

Intervention

Recent litigation also challenges the specifics of Act 369. The extent of legislative intervention, for example, remains in dispute.

Clean Wisconsin v. DNR – 2018AP0059. Though the underlying case involves high capacity well permits and explicit delegation of legislative authority, Clean Wisconsin joined the Act 369 litigation when legislature motioned to intervene in the case. DNR—represented by DOJ—objected. See the full litigation here: First Impressions: Legislative Intervention Under Wis. Act 369