By Ryan J. Owens
Monday, September 14, 2020
Wisconsin’s attorney general seeks to rob the state’s
citizens of their sovereignty. He is trying to grab power that does not belong
to him and wants to make mischief while avoiding oversight. This lawless
behavior — aimed today at Wisconsin’s farmers and tomorrow at small towns — must
be checked.
The Wisconsin Department of Natural Resources and
Attorney General Josh Kaul oppose a number of Wisconsin farmers in a legal
dispute that focuses on high-capacity wells. The specific questions in that
dispute are whether Wisconsin farmers can use high-capacity wells and
under what conditions. (A high-capacity well is one that can withdraw
more than 100,000 gallons a day.) These wells are critical to many of
Wisconsin’s farmers, who use them to irrigate crops and to raise livestock.
(Many small towns also use high-capacity wells.) While access to such wells is
important during a “regular” farming cycle, if there is such a thing, it is
even more so during times of drought, when deep, high-capacity wells can serve
as their only sources of water. Simply put, access to high-capacity wells can
make the difference between prosperity or destitution for Wisconsin farmers.
The attorney general seeks to avoid laws intended in
part, to protect those farmers. The Wisconsin legislature passed a series of
laws that expressly define the conditions under which the DNR can grant or deny
permits to build and operate high-capacity wells. But the attorney general
wants the power to ignore that legislation and make the law as he sees fit. He
wants the DNR to have the power to impose non-legislative conditions on farmers
who seek high-capacity wells. He believes he is a better steward of the
people’s waters, and the environmental impacts to them, than the legislature,
farmers, and the people themselves.
The broader dispute goes beyond farmers, however. It
effects every Wisconsinite’s liberties and raises fundamental questions about
government power. Does Wisconsin’s legislature, elected by the people in their
sovereign capacity, make the law? Or can an unelected state agency — unmoored
from legislative control, and against the express wishes of Wisconsin’s
elected officials — make law? Reversing the state’s legal position in the
middle of an ongoing lawsuit, Kaul seeks power through unchecked administrative
control.
Those in power cannot and must not make law that way.
Government power comes from the consent of the governed. Through the Wisconsin
constitution, we consented to be governed by legislators and elected officials,
those whom we can hold accountable. By seeking to ignore the legislature (and a
formal opinion of the previous attorney general), Kaul seeks to take power that
does not belong to him and give it over to the DNR (and keep some for himself).
That power belongs to the people and, in turn, to the legislature they elect.
The attorney general may not make law that contravenes what the legislature has
declared. Even if he was motivated by good intent, the inescapable fact is the
constitution clearly makes the legislature supreme over the bureaucracy.
To make matters even worse, he does not want
Wisconsinites to know how he arrived at this decision. He has claimed the power
to avoid open-records laws that none of his predecessors dared claim.
He changed the state’s legal position during the dispute,
and those affected, reasonably, want to know why. When they asked, the attorney
general essentially told them to pound sand. The Wisconsin Department of
Justice has refused to turn over documents that would shed light on its
decision to change legal positions, claiming attorney-client privilege. That
privilege is important, but it can also be used inappropriately to shield
government actors from embarrassment and scrutiny. That is the whole point of open-records
laws — to hold government actors accountable and to prevent them from abusing
their power.
When asked to identify the client who claimed the
privilege, the DOJ responded that the DOJ itself was the client. In other
words, the DOJ claimed the right to refuse open-records requests on behalf of
itself. It’s like the constitution “pleading the Fifth” on itself, to itself.
If the DOJ is its own client and can assert a privilege to avoid turning over
documents, there is little (other than judicial challenges) stopping it from
skirting Wisconsin’s open records laws.
These actions set a terrible example when people want
greater, not less, institutional transparency. Ironically, Kaul recently
stated: “It’s important that we lead by example. With today’s announcement [on
a separate topic], we are re-affirming the importance of transparency in
government.” He was correct — at least there. The office must lead by example.
Here, it failed.
That we must protect Wisconsin’s God-given natural
resources, such as our water, is manifest. That we must also maintain fidelity
to the Wisconsin constitution and to the people’s sovereignty is equally so.
The attorney general’s power grab destroys liberty and must not be allowed to
stand.
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