State Justice Dept. under Schimel joins flood of out-of-state lawsuits
Attorney General Brad Schimel has inserted Wisconsin into out-of-state disputes that range from teacher tenure in Indiana to a Texas oil company and global warming.
The cases, and others, have raised questions by critics who say such legal forays by the Department of Justice have little or no connection to Wisconsin and are chiefly designed to further Republican causes.
Schimel’s office defended the actions. An agency spokesman said the department only participates where there is a direct connection to the state, “or if the case has implications for defending Wisconsin state law in a future case.”
The state’s participation in such cases is an example of a growing tide of activism by both Republican and Democratic attorneys general, often involving matters far outside their borders, experts say.
Wide-ranging cases
Under Schimel, Wisconsin has participated in a diverse set of friend-ofthe-court briefs, where parties have no formal involvement in a case, but have a strong interest in the outcome. A Republican, Schimel was elected in 2014 and faces Democrat Josh Kaul on Nov. 6.
The briefs range from opposing efforts in Maryland to remove a crossshaped monument on public land to taking on the Democratic attorneys general of New York and Massachu-
setts, who claim oil giant ExxonMobil defrauded shareholders by downplaying risks of climate change regulation.
With ExxonMobil, Wisconsin joined with Texas and 10 other states in a brief this year that claimed their interest in the matter stemmed from their own powers to investigate potential violations of the law. But in this case, they accused New York and Massachusetts of “unrestrained investigative excursions” of the oil company, and promoting only “one side of an international policy debate.”
Wisconsin and the other states argued that “scientists continue to disagree about the degree and extent of global warming and its connection to the actions of mankind, as do many others.”
Wisconsin Justice Department spokesman Alec J. Hanna said in an email that because the brief emphasized that the science of climate change remains unsettled, “legislatures, not courts, must decide the best way forward.”
Earlier this month, the latest United Nations report on global warming, which cited more than 6,000 scientific references, predicted worsening climate effects such as drought and flooding if greenhouse gas emissions continue at the current pace.
Paul Nolette, a lawyer and political scientist at Marquette University, said the brief involving Wisconsin in the ExxonMobil case is highly unusual.
“I don’t remember another case in which a group of AGs went to court on the side of a regulated industry against their fellow AGs in other states saying ‘your investigation is invalid,’ ” said Nolette, author of a 2015 book on attorneys general and policy making.
“It’s very unusual,c and I think it’s an escalation of partisanship, frankly.”
But he also said Wisconsin’s involvement in out-of-state litigation through friend-of-thecourt briefs is part of a growing movement. “Schimel is very much part of the same trend of all of these other AGs — on both sides of the aisle,” Nolette said.
Democrats “in some ways perfected the strategy” during the administration of Republican President George W. Bush, he said. Republicans grew more active beginning in 2014 and “have essentially caught up,” he said, likening it to a “signal to their electorate, or their party base, that they are with them.”
Nolette, who tracks such cases, said President Donald Trump has faced as many multistate lawsuits in the last two years as did Obama in his eight years as president.
Involvement criticized
Kaul has been critical of Schimel, saying he sometimes elevates private interests ahead of larger public concerns. Kaul has said he would reduce the scope of the agency’s solicitor general’s office, which handles most friend-of-the-court briefs.
He points to Wisconsin joining other states in a 2015 lawsuit against the Obama administration over its plans to control carbon emissions through the Clean Air Act. Schimel has argued that the regulations would be especially harmful to manufacturing-intensive Wisconsin.
Christa Westerberg, a Madison-based attorney who has sued Republican-led state agencies, has criticized Schimel for using taxpayer-funded attorneys to file briefs in cases outside Wisconsin — often on behalf of private interests.
“To be clear, it is not necessary for the State of Wisconsin to file these ‘friend of the court’ briefs,” she said in a recent opinion column.
“Residents of Wisconsin may well ask themselves why Schimel’s office is spending so much time defending private interests near and far when residents of Wisconsin are facing so many problems within the state’s borders.”
She said the Justice Department has faced criticism for a drop in the prosecution of environmental cases in the last four years; the response to timely testing of rape kits and Schimel’s acknowledgement, in hindsight, that he should have put more resources into investigating the problems at the Lincoln Hills School for Boys.
But Hanna said in an email, “these ‘critics’ clearly have little or no understanding of how DOJ operates.”
“Whether the (solicitor general’s office) drafts a brief, or joins another state’s brief has no impact on the work of the (Division of Criminal Investigation), or the crime lab or any other division.”
Westerberg examined friend-of-the-court briefs under Schimel, noting cases included a logging company in a California forest fire case and pollution caused by a pipeline company in South Carolina.
Another case in Indiana involves a debate over a new teacher tenure law.
The Indiana law took away job protections for tenured teachers during a period of layoffs and applied it to teachers who received tenure before the law went into effect.
Schimel supported the school district’s efforts to extend layoffs to teachers who had previously received tenure, as did attorneys general from Colorado, which wrote the brief, as well as Michigan, Louisiana and Alabama.
Wisconsin and the other states said their interest in the case was to improve public education by trying to emphasize teachers’ abilities over the length of time they had been in the classroom.
The Seventh Circuit U.S. Court of Appeals disagreed, however, and in 2017 struck down the law because it violated the contract clause of the U.S. Constitution.