That opened the door for Kaul’s latest lawsuit, which he is asking the Supreme Court to take as an original action — skipping lower courts. The court’s conservative majority was 5-2 when it ruled on the earlier case, but it is now 4-3, seemingly increasing Kaul’s odds of success.
Republican legislative leaders named as defendants did not immediately return messages seeking comment.
Kaul argues that the law is unconstitutional as applied to two categories of cases involving civil lawsuits over environmental and consumer protections cases and those involving executive branch agencies. Kaul said those cases make up the majority of settlements his department enters into.
“That is an executive function and it’s one where the Legislature doesn’t have an appropriate constitutional law under separation of powers,” Kaul said. “It’s impeding our ability to get justice in these cases.”
Kaul argues there is an urgency to resolve the issue because the Department of Justice’s ability to settle lawsuits is hampered by having to get approval from lawmakers, a process that be be time consuming and sometimes politically fraught.
“We have an ongoing violation of separation of powers in the state,” Kaul said in an interview.
The law makes it harder to get restitution for consumers who get cheated, implement remedial action on an environmental violation or help get recovery for a state agency that helps taxpayers, Kaul said.