Lawyer: Court ignored its own rules in hearing on postponing election

By: - April 8, 2020 11:06 pm
West Madison polling location at Covenant Presbyterian Church workers are behind plexiglass passing ballots to voters. (Photo: Melanie Conklin)

West Madison Ward 83 polling location at Covenant Presbyterian Church workers are behind plexiglass passing ballots to voters. (Photo: Melanie Conklin)

A lawyer is questioning the state Supreme Court’s consideration of briefs from three outside parties opposing Gov. Tony Evers’ executive order to postpone Tuesday’s election, while rejecting a motion to enter the case from voting rights groups he represents who favored the postponement.

The three briefs that the high court accepted before ruling 4-2 against the governor didn’t go through the court’s own procedure for such outside-party submissions, attorney Lester Pines wrote in a letter he sent Wednesday to Chief Justice Patience Roggensack.

Meanwhile, he stated, his own motion to enter the case on behalf of voting rights organizations that supported postponing the in-person Wisconsin vote Tuesday was rejected on the grounds it came too late. That was after Pines had followed the court’s established rule requiring outside parties to seek permission before filing motions to enter the case.

The letter doesn’t directly ask for a remedy, but appears to put the court on notice that it had not followed its own procedure — and might be expected to grant other parties the same leeway in the future.

The Legislature’s Republican leaders filed a petition Monday asking the high court to directly take their case to block Evers’ order to delay the election rather than go through a lower court at about 2:30 p.m., Pines told Roggensack, and the court set a 3:30 p.m. deadline for a response.

Pines’ letter stated that he and other lawyers for the voting rights coalition learned of the deadline 10 minutes before the due time and called the Supreme Court clerk with plans to file a brief as an outside party. After being put on hold, he wrote, he spoke with a staff member at 3:28 p.m., when “she urged us to file as soon as possible.”

He emailed the clerk to let her know the voting rights coalition would file a motion to appear as a friend of the court, and submitted the motion at about 4:26 p.m. as an e-filing and by email about 21 minutes later.

“We filed the motion and proposed brief in compliance with Wis. Stat. § 809.19(7) which, as you know, governs the submission of non-party briefs to the Court,” Pines wrote. The statute lays out the procedure outside parties seeking to enter a case need to follow, including getting the court’s permission to do so. 

Pines said the voting-rights lawyers have since learned “that three ‘letter briefs’ were filed with the Court in support of the Legislature’s position from the following: Attorney Richard Esenberg on behalf of the Wisconsin Institute for Law & Liberty; Attorney Lane E. Ruhland on behalf of the Republican Party of Wisconsin; and Attorney Andrew T. Phillips on behalf of the Wisconsin Counties Association/Washington County.”

Pines added: “It is also our understanding that the Court considered these ‘letter briefs’ despite the fact that none of the non-parties on whose behalf they were sent had asked the Court permission to file a non-party brief.”

In his letter, he asked Roggensack: “Has the Court adopted a new procedure that allows non-parties to present arguments to the Court by ‘letter briefs’ without first seeking permission to do so under Wis. Stat. § 809.19(7)?”

He then asked whether “in the future, may non-parties, on the basis of the Court’s consideration of ‘letter briefs’ in this matter, submit non-party ‘letter briefs’ to the Court with the understanding that the Court, on an ad hoc basis, will decide if it will review and consider them?”

His letter concludes: “The answer to those questions are important so that in the future attorneys who are consulting with potential amici to this Court can properly advise them about whether they should expend the time, effort and resources to comply with Wis. Stat. § 809.19(7) or just submit a ‘letter brief’ in the hope the Court will consider it.”

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Erik Gunn
Erik Gunn

Deputy Editor Erik Gunn reports and writes on work and the economy, health policy and related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.