Power to compromise

165.08 Power to compromise. (1) Any civil action prosecuted by the department by direction of any officer, department, board, or commission, or any civil action prosecuted by the department on the initiative of the attorney general, or at the request of any individual may be compromised or discontinued with the approval of an intervenor under s. 803.09 (2m) or, if there is no intervenor, by submission of a proposed plan to the joint committee on finance for the approval of the committee. The compromise or discontinuance may occur only if the joint committee on finance approves the proposed plan. No proposed plan may be submitted to the joint committee on finance if the plan concedes the unconstitutionality or other invalidity of a statute, facially or as applied, or concedes that a statute violates or is preempted by federal law, without the approval of the joint committee on legislative organization. (2) In any criminal action prosecuted by the attorney general, the department shall have the same powers with reference to such action as are vested in district attorneys. History: 2007 a. 20; 2015 a. 55; 2017 a. 369. Certain institutional interests of the legislature were sufficient to defeat a facial challenge to the provisions of this section authorizing legislative intervention in certain cases and those requiring legislative consent to defend and prosecute certain cases. Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614. Sub. (1) is unconstitutional as applied to two categories of cases: civil enforcement actions and cases the Department of Justice brings at the request of executive branch agencies for programs those agencies are statutorily charged with administering. Settling these two categories of cases is within the core powers of the executive branch, and the statutory requirement to obtain approval from the Joint Committee on Finance before settling these cases violates the state constitution’s separation of powers. Kaul v. Wisconsin State Legislature, 2025 WI 23, 416 Wis. 2d 322, 21 N.W.3d 513, 22-0790. The act of filing a lawsuit with a simultaneous proposed consent decree constitutes the commencement, prosecution, and compromise of a civil action. Therefore, sub. (1) requires, as a condition precedent to settlement, that the attorney general obtain approval of the Joint Committee on Finance for civil enforcement negotiations that the Department of Justice decides to file in civil court seeking judicially signed consent decrees. Wisconsin State Legislature v. Kaul, 2025 WI App 2, 414 Wis. 2d 633, 17 N.W.3d 24, 22-0431. Certain institutional interests of the legislature were sufficient to defeat a hybrid challenge to the provisions of this section authorizing legislative oversight in the settlement of certain cases. Kaul v. Wisconsin State Legislature, 2025 WI App 3, 414 Wis. 2d 686, 17 N.W.3d 281, 22-0790.