What does it cost to be sued by WILL?

So far this year, the Wisconsin Institute for Law & Liberty (WILL) has filed lawsuits against counties, cities, villages and towns across Wisconsin. 

Those lawsuits can cost taxpayers hundreds of thousands of dollars and strain government insurance policies as local government agencies defend themselves against the litigation. The suits have included challenging the use of drop boxes for receiving absentee ballots; school districts’ referring to students by their preferred gender identity; public health orders and an ordinance requiring buildings be constructed with bird-safe glass. 

The deep-pocketed conservative legal advocacy group has filed lawsuits, sent notices of claim — a legal procedure that notifies a government agency that a suit will be filed against them — and sent letters threatening legal action to more than a dozen local and state government agencies this year. While local governments need to dip into their annual budgets and spend through their insurance deductibles to defend themselves, WILL is funded by the Bradley Foundation, a right wing, nonprofit grant funder organization based in Milwaukee, as highlighted in research from the Center for Media and Democracy and a recent in-depth story in the New Yorker. 

WILL’s 2019 tax filing, the most recent year available, shows it brought in $2.3 million in revenue. Last year, WILL received $600,000 in funding from the Bradley Foundation, according to the foundation’s 2020 annual report, adding to a total of $6.9 million the legal outfit has received from the foundation since its inception in 2011, tax filings and annual reports show. 

The funding from Bradley and other donations has allowed WILL to expand. After a year in which the group played a prominent role in challenging public health orders to prevent the spread of COVID-19 and working the courts to change Wisconsin election laws, WILL has been able to go national, starting a new “Equality Under the Law Project,” which aims to fight so-called critical race theory and government policies meant to aid historically disadvantaged communities. That project has already halted an effort by the Biden administration to create a program that provides aid to Black farmers. 

Lawyers at WILL argue that governments wouldn’t rack up hefty legal bills if they just didn’t violate what the organization sees as the proper role of government. 

“In our country, citizens have the right to challenge their government when their legal rights are violated,” WILL President Rick Esenberg said in a statement to the Wisconsin Examiner. “Government can avoid legal fees by doing a better job of respecting those rights.”

But, for an organization that highlights a photo and quote from President Ronald Reagan on its website, WILL’s lawsuits have strained taxpayer money across the state. 

Scot Ross, a former member of the Wisconsin Ethics Commission and former head of the liberal group One Wisconsin Now, says WILL’s legal advocacy is part of a well-funded campaign to shape Wisconsin public policy in the courts on behalf of their Republican allies. He adds that they’re able to do this because of a decades-long effort to put conservatives on the state Supreme Court. 

“WILL exists to advance the Republican agenda and, as we see not just in public policy, but in the courtroom, Republicans cost Wisconsin taxpayers money,” Ross says. “The Republican agenda is to take as much money out of our pockets and into their friends as possible.” 

“WILL exists because the Bradley Foundation has written them a check for at least $500,000 every year for the last decade,” he adds. “The real problem isn’t WILL, the real problem is the Wisconsin Supreme Court is bought and paid for by the Republicans and they rule in favor of WILL 100% of time.”

Brown County Sales Tax

In 2018, Brown County implemented a 0.5% sales tax to fund $147 million in construction projects and reduce debt by $70 million. 

WILL, along with the Brown County Taxpayers Association and an Ashwaubenon resident, sued Brown County, saying that use of the sales tax was illegal. The group alleged that the county could only use sales tax revenue to decrease property taxes, not fund projects.

Last year, a Brown County Circuit Court judge sided with the county, saying the tax was legal and if the Legislature wanted sales taxes to be used to reduce property tax payments, it would need to be more specific. 

WILL and the other plaintiffs appealed the decision and now the case is in front of the Wisconsin Supreme Court. 

The three-year legal battle has cost Brown County $300,000 so far, according to Brown County Deputy Executive Jeff Flynt. 

Madison and Dane County

In Madison, WILL is currently fighting two lawsuits against the city. 

In 2020, Madison passed an ordinance that requires certain types of buildings to be constructed with glass that prevents birds from colliding into them. The ordinance requires certain treatments to the glass to “reduce the heightened risk for bird collisions with glass on specified building designs and configurations.”

Last month, WILL filed a lawsuit on behalf of a number of trade organizations representing contractors, construction workers, developers and Realtors challenging that ordinance. 

Also in 2020, Madison created a civilian police oversight board — a long sought win for racial justice activists in the city. The ordinance passed by the Common Council requires a certain number of the board’s membership be Asian American, Black, Latinx and Native American. This June, WILL filed a lawsuit on behalf of local right wing blogger and former county Supv. David Blaska, alleging the ordinance is racial discrimination. 

Because the lawsuits are so new, Madison hasn’t racked up legal bills in the same way as Brown County, but the way the city’s insurance is set up it could be on the hook for hundreds of thousands of dollars.

Even when litigation is covered by the city’s insurance, Madison is required to pay the first $500,000 in costs — meaning the bird-safe glass and police oversight board lawsuits could cost the city up to $1 million, according to city Risk Manager Eric Veum. 

Those costs come from the city’s operating budget and are spread across all city departments, he says. 

“So we’re essentially paying the majority of the costs of the lawsuits out of our own funds, not the insurance,” Veum says. “How much we have in outside attorney’s fees, all of those things are going to be factors. The biggest thing is all the expenses within the first $500,000 the city is funding itself. Yes [the lawsuits] have a cost to us.”

Dane County’s insurance is set up the same way as Madison’s, so when WILL tried more than once to have a court strike down Public Health Madison and Dane County’s (PHMDC) orders meant to prevent the spread of COVID-19, the county was on the hook for the first $500,000, even though it is covered by insurance. Because the lawsuit is still ongoing, county administration doesn’t yet know the costs. 

Small Towns

The costs of WILL’s lawsuits aren’t just limited to the biggest local governments in the state. 

In May, WILL filed a notice of claim with the Kettle Moraine School District in Waukesha County, challenging the district’s policy of referring to students by their preferred gender identity even if parents object. 

The notice of claim starts a 120 day clock before a lawsuit is filed. That clock is set to expire in September for the school district. So far, responding to the notice has taken a few hours of the district’s staff attorney’s time, according to Communications Director Zack Zupke, but if it goes forward, the litigation and resulting insurance claim will include a $10,000 deductible. 

“The only expense at this point has been a few hours of our staff attorney/director of employee services’ time in reviewing the Notice of Claim, and consulting with our insurance carrier and our Board of Education,” Zupke says. “If this matter proceeds to litigation, the district’s deductible is $10,000, plus it will require more of her time. Long term, the district’s insurance premiums could go up as a result of these types of claims.”

In 2019, the Town of Buchanan in Outagamie County instituted a transportation utility fee, meant to charge all properties for use of town roads and cover the costs of upkeep and managing regular drainage problems. 

WILL filed a notice of claim with the town in May, alleging the fee was an “illegal tax.” The notice of claim expires Sept. 1. So far, reacting to the notice of claim has cost the town $400, but a lawsuit could put more strain on the budget of a town of roughly 7,000 people. 

“Obviously we would hope to have it resolved and it wouldn’t move forward,” Town Administrator Maggie Mahoney says. “Should it move forward, there’d be a continued financial strain on our resources.”

Not every WILL lawsuit comes with such a cost or threatens future financial strain. The Village of Hartland, which WILL is suing over the use of drop boxes to collect absentee ballots in last year’s presidential election, has its litigation fully covered by insurance. 

“Our [cost] currently is nothing because our insurance through the League of Wisconsin Municipalities, we have a representative defending us and the insurance company is acting on behalf of us,” interim Village Administrator Ryan Bailey says. “Our rates won’t go up or anything like that, this all goes to insurance. We have city attorneys but with a case like this, we sent it to our insurance agent, they forwarded it on and said yes they’ll defend us.”

This year, WILL’s legal advocacy has also targeted the Wisconsin Department of Corrections, the Wisconsin Elections Commission and the Higher Educational Aids Board. 

On Friday, WILL sent a four-page letter to the City of Mequon, where a group of anti-mask and anti-critical race theory activists have been pushing for a recall election against local school board members. The city, enforcing an ordinance against displaying signs on public property, has forced the activists to stop displaying signs. 

WILL says the ordinance is unconstitutional.

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