Fight over Gableman subpoenas continues, possibly further extending review

A Dane County judge on Thursday allowed three people to be added to a lawsuit fighting subpoenas that are part of former Supreme Court Justice Michael Gableman’s partisan review of the 2020 election. 

The addition of the three new plaintiffs, plus a separate fight in a Waukesha County court over subpoenas involving the mayors of largely Democratic voting cities, could further extend Gableman’s review — which has already gone on for months past its original deadline. 

Both Gableman and Assembly Speaker Robin Vos have said the review will go on until the lawsuits over the subpoenas are finished. Gableman’s contract with the Legislature was extended earlier this month through the end of April.

The Dane County case was started in October when Gableman issued subpoenas to the Wisconsin Elections Commission (WEC) and its administrator Meagan Wolfe. Gableman was seeking to interview Wolfe in private, which her lawyers have said is an impossible request from a legislative investigator and instead the interview should be conducted in a public committee meeting. 

In December, Gableman issued subpoenas to Ann Jacobs, a Democrat-appointed member of the WEC, Sara Linski, a technical services employee of WEC, and Trina Zanow, Chief Information Officer of the Department of Administration Division of Enterprise Technology.

On Thursday, the state Department of Justice was seeking to add Jacobs, Linski and Zanow as plaintiffs in the initial lawsuit against Gableman’s subpoenas. Assistant Attorney General Gabe Johnson-Karp said the three new plaintiffs should be added because the issues remain the same. 

“The new plaintiffs would be asserting the same claims that are already at issue in this case,” he said. 

George Burnett, an attorney for the Legislature and Vos, argued that adding the plaintiffs would change the arguments because the subpoenas are different. Instead the proper venue would be the already existing Waukesha County case, involving an action filed by Gableman to enforce the subpoenas against Jacobs, Linski and Zanow. 

“If the Court were to grant this motion and allow these three new plaintiffs to interject their claims into this lawsuit, what we have is we have two cases, going side by side with considerable risk of contradictory or exclusive rulings,” Burnett said. 

“We have different information sought in those subpoenas; we have different people claiming different constitutional rights,” Burnett continued. “Why add a new lawsuit when one is already going on?”

Dane County Circuit Court Judge Rhonda Lanford granted the DOJ’s request to add the plaintiffs, saying that the same question is at issue in all of the subpoenas — whether they’re constitutional. She added that she was unconvinced by Burnett’s argument that Waukesha County was the proper place for this lawsuit. 

“This is even a stronger argument for this being the same issue,” Lanford said. “The same parties involved, essentially the same documents, the same subpoena, the same everything.” 

“It’s the same issue that was brought to this court before the Waukesha action was filed,” she continued. “The issue of the constitutionality issues surrounding the subpoenas.” 

The fight over Gableman’s subpoenas has been a major problem for the former justice, who has complained repeatedly of obstruction from Democratic Attorney General Josh Kaul and the private attorneys who have been hired to fight subpoenas against public officials across the state. Gableman and Vos have also been embroiled in lawsuits over their refusal to respond to open records requests by government watchdog group American Oversight. 

In a previous court appearance, one of Gableman’s private attorneys argued that the constitutional questions raised by a wide-ranging and unending investigation into a long-decided election are secondary to Gableman’s desire to finish his work. 

“Not only has the Wisconsin Attorney General intervened (and lost) in court to block certain subpoenas, and not only have left-wing groups provided support adverse to Wisconsin taxpayers — for instance by providing legal support to government employees seeking to keep their work secret, filing dilatory open records requests, and advancing frivolous complaints before various boards — but the Administrator of the Wisconsin Elections Commission (WEC) has explicitly stated to the Chairwoman of the Assembly Committee on Campaigns and Elections that she is prohibited by law and by private contract from turning over certain public records,” Gableman wrote in his second interim report. “Until these lawsuits are resolved, there appears to be no way to fully vindicate the right of the people of the State of Wisconsin to know how their government is run. Such lawsuits have proved a costly and time-wasting exercise.”

The Dane and Waukesha County cases involving Gableman’s subpoenas are ongoing. The Waukesha case, which has resulted in Gableman threatening to jail the lawyers of several cities, has a hearing scheduled for April 22, close to the expiration of Gableman’s current contract.