Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of. Italics indicate WJI insertions. Emphasis in the original is italicized and underlined.
Case: Wisconsin State Legislature v. Kaul
Majority: Justice Rebecca Frank Dallet (11 pages), joined by Chief Justice Jill J. Karofsky and Justices Janet C. Protasiewicz and Susan M. Crawford
Concurrence in part and dissent in part: Justice Brian K. Hagedorn (2 pages)
Dissent: Justice Rebecca Grassl Bradley (29 pages), joined by Justice Annette Kingsland Ziegler except as to the first four paragraphs
Dallet
Upshot
We conclude that the attorney general complies with the pertinent settlement-funds statute when, in accordance with the straightforward language of the statute, he deposits settlement funds into the general fund. That is true even if the attorney general also credits those deposited settlement funds to one or more program appropriations contained within the general fund. Accordingly, we reverse in relevant part the court of appeals’ decision. We further determine that the second issue regarding the program appropriation under a second statute should be dismissed as improvidently granted.
In other words, the attorney general, not the Legislature, controls millions of dollars recovered through litigation settlements. Even though settlement revenues are deposited in the general fund, the settlement-funds statute at issue does not preclude crediting the money for the Department of Justice rather than for general purposes controlled by the Legislature.
Background
The attorney general represents the state in legal matters, including by bringing civil actions to enforce state statutes or otherwise to represent the state’s interests. Sometimes those civil actions end in settlements through which the attorney general recovers money on behalf of the state. Such settlements may include money earmarked for specific purposes like restitution or attorneys’ fees. But they can also include “uncommitted” funds, that is, money that is not designated for a particular purpose by the settlement and is instead left to the attorney general’s discretion. . . .
***
. . . . When a state agency receives money on behalf of the state, it must place that money into a “fund” within the state treasury. The budget statutes refer to this act as “depositing.” There are two types of “fund,” namely, the “general fund” and “segregated funds.” The “general fund” consists of “[a]ll moneys in the state treasury not specifically designated in any statute as belonging to any other funds.” The rest of the treasury is made up of “segregated funds,” that is, “revenues which, by law, are deposited into funds other than the general fund and are available for the purposes for which such funds are created.” This case concerns only revenues deposited into the general fund.
When money is deposited into the general fund, it must be directed to a specific part of the general fund. The budget statutes refer to this act as “crediting.” . . . “Deposit” refers simply to placing money into the general fund or a segregated fund of the state treasury. “Credit” refers to directing money deposited into the general fund to a specific part of the general fund.
The default crediting rule is that money deposited into the general fund “shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.” Money credited to the general purpose revenues of the general fund is “available for appropriation by the legislature.” When the legislature has “otherwise specifically provided by law,” however, deposits are credited elsewhere.
***
For many years, attorneys general from both political parties have negotiated settlements through which the state recovered significant sums of “uncommitted” funds—in other words, money that was not specifically designated in the settlement for restitution, attorneys’ fees, or another specific purpose. Those attorneys general, in turn, deposited the uncommitted funds into the general fund and credited them to a program appropriation, specifically the Department of Justice’s . . . program appropriation as “proceeds from services.” Once there, the funds were available for the attorney general to spend on the Department’s programs and activities pursuant to the program appropriation.
***
. . . In late 2018, the legislature adopted the current version of the settlement-funds statute, which provides in its entirety that “[t]he attorney general shall deposit all settlement funds into the general fund.” . . .
After Attorney General Kaul took office in 2019, the legislature argued that the settlement-funds statute required him to deposit all uncommitted settlement funds into the general fund and credit them to the general purpose revenues of the general fund. After both sides exchanged numerous letters that failed to resolve their dispute, the legislature and an individual plaintiff . . . filed this case in Polk County Circuit Court. The complaint sought a declaration that the settlement-funds statute “requires the Attorney General to ‘deposit all settlement funds into the general fund,’ . . . and does not allow for the depositing of settlement funds into the appropriation account . . . .
. . . . The circuit court granted partial summary judgment in the attorney general’s favor, concluding that the settlement-funds statute requires only that settlement funds be deposited into the general fund, and does not require those funds to be credited to the general purpose revenues of the general fund. . . . Accordingly, the circuit court declared that the settlement-funds statute requires only that all settlement funds be deposited into the general fund. Because the attorney general was already doing that, the circuit court concluded he was complying with that statute. Regarding the Legislature’s argument that under a second statute the attorney general could not credit uncommitted funds to a program appropriation as “proceeds from services,” the court found that the case as pled did not encompass the issue.
The legislature appealed, and the court of appeals reversed the circuit court’s decision regarding the settlement-funds statute. . . . The court of appeals explained that the settlement-funds statute, together with two other statutes, required that “all settlement funds must be deposited into the general purpose revenue fund.” . . .
The court of appeals’ broad holding that the settlement-funds statute required all uncommitted settlement funds to be “deposit[ed]” into the general purpose revenues of the general fund meant that it did not have to reach the legislature’s narrower, alternative contention about the scope and interpretation of the second statute. . . . Nevertheless, when we granted review of the court of appeals’ decision regarding the settlement-funds statute, we asked the parties to address whether “the services rendered by Department of Justice personnel in litigating a civil action on behalf of the State of Wisconsin or an executive branch agency constitute ‘proceeds from services’ under that second statute.
The legislature’s primary contention is that the attorney general is violating the settlement-funds statute when he deposits uncommitted settlement funds in the general fund and credits those funds anywhere except the general purpose revenues of the general fund. Assuming we disagree, however, and in response to the court’s order granting review and adding a second issue, the legislature further contends that uncommitted settlement funds may not be credited to the program appropriation . . . because they are not “proceeds from services” as that phrase is used in the second statute.
The Guts
The settlement-funds statute, entitled “Deposit of settlement funds,” provides in its entirety that “[t]he attorney general shall deposit all settlement funds into the general fund.”
This simple, declarative sentence identifies a class of state money (“settlement funds”) and imposes a single, narrow restriction on where that money must be deposited (into the state treasury, specifically “the general fund”). It says nothing whatsoever about where that money may or must be credited after it is deposited. Further, the “general fund,” . . . consists of “[a]ll moneys in the state treasury not specifically designated in any statute as belonging to any other funds.” In other words, everything except money belonging to “segregated funds” falls under the broad umbrella of the “general fund.” That includes not just the general purpose revenues of the general fund, but also program revenues credited to specific program appropriations. Thus, when settlement funds deposited into the general fund are credited to a specific program appropriation, those funds remain within the general fund. For this reason, the attorney general is complying with the settlement-funds statute when he deposits uncommitted settlement funds into the general fund, even if he also credits those funds to a program appropriation.
The legislature nonetheless argues that the attorney general violates the settlement-funds statute when he deposits uncommitted settlement funds into the general fund and credits them anywhere except the general purpose revenues of the general fund. But to reach that conclusion, we would have to conflate two distinct terms—“credit” and “deposit”—or read restrictions on where money may be credited into a statute that contains none. Indeed, that is what the court of appeals did when it interpreted the settlement-funds statute as requiring that “[uncommitted] settlement funds must be deposited into the general purpose revenue fund.” As that sentence alone makes clear, the court of appeals conflated the settlement-funds statute requirement that uncommitted settlement funds be “deposit[ed]” into the general fund with a requirement that those funds also be credited to the general purpose revenues of the general fund. In other words, the court of appeals read into the statute a requirement that deposits of uncommitted settlement funds be credited to the general purpose revenues of the general fund. In defending the court of appeals’ decision, the legislature makes a similar argument, namely that we should read crediting restrictions imposed by other statutes into the single depositing restriction imposed by the settlement-funds statute.
The problem with these arguments is that “we interpret the statutory language the legislature enacted, and will not read into a statute language that it does not contain or reasonably imply.” As many statutes demonstrate, when the legislature wants to direct both that money is to be deposited into the general fund and that it must be credited somewhere specific, it knows how to do so. But the settlement-funds statute does not even reference crediting, let alone restrict where the attorney general may credit money he deposits within the general fund. Accordingly, like the circuit court, we decline to read into the statute atextual restrictions on where deposits to the general fund may be credited. Therefore, we hold that the attorney general is complying with the settlement-funds statute when he deposits uncommitted settlement funds in the general fund, even if those settlement funds are credited to a specific program appropriation within the general fund.
When we granted review in this case, we added a second issue, namely “does the language of a second statute authorize the crediting of civil action proceeds to that appropriation? In other words, do the services rendered by Department of Justice personnel in litigating a civil action on behalf of the State . . . or an executive branch agency constitute ‘proceeds from services’ under the second statute?”
After reviewing the record and the briefs of both parties, and after hearing oral arguments, the court is too divided to reach a majority mandate on that issue. Generally, when the court is too divided to reach a majority as to the mandate, we affirm the decision under review. Under these circumstances, however, there is no decision to affirm with respect to the second statute. That is because neither the circuit court nor the court of appeals decided this question we raised, and as the circuit court previously explained, the legislature did not seek a declaratory judgment regarding the proper interpretation of the phrase “proceeds from services” in that statute in its complaint. Given that, we conclude that dismissal of this additional issue as improvidently granted is warranted.
Hagedorn
Concurrence in part and dissent in part
I agree with the majority that the court of appeals misconstrued the settlement-funds statute. However, I strongly disagree with the court’s failure to decide whether the monies received from settlements in civil cases litigated by the Department of Justice constitute “proceeds from services” under the second statute. The majority declares this an “issue” which we are now dismissing as “improvidently granted.” But we granted review in a case, and the court is not dismissing the case as a whole. Rather, it is declining to decide an issue—one that was briefed, argued, opined on by the court of appeals, and central to the dispute between the parties. Prior to this, I am unaware of this court dismissing an issue as improvidently granted.
It is true that this court asked the parties, as a second issue, to address the meaning of the second statute. But we did not do so out of thin air. The court of appeals majority and dissent both opined on whether the attorney general may treat settlement funds as “proceeds from services” under the second statute, reaching different conclusions. We added this issue to ensure it was separately and fully addressed, and to ensure the larger dispute between the parties had a resolution.
The court justifies its decision to dismiss an issue as “improvidently granted” on the grounds that the court cannot reach a resolution. However, we are not divided on the meaning of the second statute. In fact, a majority of the court agrees on the proper interpretation of the statute. Our disagreement is simply on how to style the mandate on the second issue, even though—regardless of how we label it—that particular postscript will have no practical effect on the parties in this case. The court’s inability to come together leaves the parties with no clarity about how to conform their actions to the law with respect to the second statute. It is most unfortunate that the court—even while we agree—cannot produce an opinion effectuating our agreement. The parties deserve better, and so does Wisconsin. I respectfully concur in part and dissent in part.
Bradley
Dissent
Justice Ziegler did not join these three paragraphs:
If an attorney makes a false statement of fact or law, she may be sanctioned for violating the rules of professional conduct for attorneys. Unfortunately, supreme court justices can deceive the People of Wisconsin with impunity. Reaching an opinion favorable to Democratic Attorney General Josh Kaul (who faces a contested election in November), the majority dodges the issue we asked the parties to brief . . . .
. . . . The majority . . . acknowledges “[t]he default crediting rule is that money deposited into the general fund ‘shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.’” The majority refuses to apply the law, which favors the Republican-controlled legislature over Democrat Attorney General Josh Kaul. Lady Justice wears a blindfold, not blinders.
The majority’s machinations have left insufficient time to convert my previously-drafted opinion into a dissent, so (consistent with precedent established by other members of the court) I reproduce below what the majority opinion should have been. This is not the first time justice has taken a back seat to political interests. The members of the majority extend the Democrats’ almost unbroken winning streak in litigation against the Republican legislature since the progressives took control. (Footnote citing 15 cases.) In Wisconsin as elsewhere, “[d]arkness descends on the Rule of Law.”
Justice Ziegler joined all of the following paragraphs:
Wisconsin’s money belongs to the People of Wisconsin. The People control the allocation and expenditure of Wisconsin’s revenues through their constitutional representatives in the Wisconsin Legislature. For decades, Wisconsin attorneys general have siphoned tens of millions of dollars belonging to the People from large multistate consumer protection and antitrust settlements, to various budget appropriations controlled by the Department of Justice (DOJ). The Wisconsin Legislature became aware of this practice as early as 2010, and has twice legislated to reassert constitutional control over the People’s revenues. Attorneys general have resisted these efforts, interpreting the legislature’s enactments in a variety of creative ways in order to continue spending the People’s settlement funds. The fight between Attorney General Josh Kaul and the Wisconsin Legislature over those settlement funds culminated in this litigation.
Kaul claims before this court that the settlement-funds statute, a statute the legislature enacted to resolve the interbranch dispute over settlement funds, requires the attorney general only to “deposit” “settlement funds” to the “general fund” of the state treasury. That is correct. Kaul additionally claims a longstanding default rule controlling budget allocation in the Wisconsin budget statutes allows him to continue “crediting” those moneys to a DOJ program appropriation. That is incorrect. We affirm the Court of Appeals and hold that the settlement-funds statute requires the attorney general to deposit settlement funds to the “general fund” of the state treasury. A budget allocation statute further requires the attorney general to “credit” settlement funds to the “general purpose revenues of the general fund.” Under the latter, the attorney general may credit settlement funds somewhere other than the “general purpose revenues of the general fund” only if the legislature “otherwise specifically provide[s]” another location. A statute to which the attorney general points does not serve as an appropriation account for settlement funds. Under the law, the attorney general must give the People their money back.
***
. . . . The legislature maintains the “settlement funds” collected by the attorney general are general purpose revenues, which the legislature controls through its budgeting and appropriations process. The attorney general considers the settlement funds to be program revenues, which the legislature has already appropriated by law, allowing the DOJ to credit them to a specific program appropriation for the DOJ’s own use.
***
Once the attorney general has deposited all settlement funds into the general fund, the question remains where to credit them. The “general fund” contains both “general purpose revenues” and “program revenues.” A statute titled “Receipts and deposits of money,” provides the default rule: “All moneys paid into the treasury shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.” The word “shall” creates a mandate.
***
Another referenced statute does not provide an exception to the default rule requiring “settlement funds” to be credited to the general purpose revenues of the general fund. . . . The attorney general must return constitutional control over the People’s revenues to the People.