Brief

Supreme Court rules Republican legislators can hire attorneys before lawsuits are filed

By: - January 27, 2022 12:28 pm
Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu | Wisconsin Eye

Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu | Wisconsin Eye

The Wisconsin Supreme Court ruled on Thursday that the Republican leadership in the Legislature followed the law when it hired attorneys to help with litigation relating to redistricting before lawsuits over the issue actually existed. 

In a 4-3 decision, the court ruled that state law gives the Legislature the authority to hire attorneys and to do so prior to any specific lawsuits being filed. 

In January of 2021, Senate Republicans entered into a contract with a law firm to provide counsel for the upcoming redistricting effort. In March, the Assembly also hired attorneys. A group of taxpayers filed a lawsuit alleging the Legislature had no authority to do this because a lawsuit over the issue didn’t exist yet. 

In April, a Dane County Circuit Court judge agreed, ruling that the Legislature had no authority to hire the law firm. 

A year later, with the now-existing redistricting lawsuit awaiting a decision from the Supreme Court, the court ruled that the Legislature did have the authority to hire the firm. 

“Any distinction between the existence and nonexistence of a present lawsuit is largely unworkable,” Justice Annette Ziegler, joined by fellow conservative Justices Patience Roggensack, Rebecca Bradley and Brian Hagedorn, wrote. “While the Legislature may have authorization to purchase legal services … once a lawsuit was initiated, under the circuit court’s reasoning, the Legislature would be prohibited from hiring counsel to file a lawsuit on its behalf, as no lawsuit would exist prior to the lawsuit being filed. Such an interpretation is absurd.”

Ziegler also wrote that for an issue as complex as redistricting, it makes sense for the Legislature to hire attorneys to help it create new political maps even before potential litigation over the issue in state or federal court. 

“Of course, in cases of complex litigation, legal advice to prepare clients for upcoming court proceedings, develop legal strategies, and mitigate litigation risk can be of material significance,” Ziegler wrote. “Understanding the stakes and potential consequences of a given action — here, a redistricting map — may serve to ensure greater legal compliance, reduce the need for judicial intervention, and lower burdens on the court system. There is no support found in either the text or in basic principles of litigation practice that counseling prior to the filing of a lawsuit is not worthwhile or helpful.”

“This is especially true in an area such as redistricting, where multiple levels of law from both state and federal sources present substantial compliance difficulties to even the most astute legal mind, and litigation is extraordinarily likely, if not inevitable,” she continued. 

In a dissent written by Justice Rebecca Dallet, and joined by fellow liberal justices Ann Walsh Bradley and Jill Karofsky, the minority argued that the majority’s decision eliminates an important protection against the Legislature misusing taxpayer funds. 

“The majority wrongly allows Petitioners to exercise purchasing authority they don’t have, thereby eliminating a safeguard against the misuse of taxpayer dollars,” Dallet wrote. 

Lester Pines, an attorney for the taxpayers that brought the lawsuit, tells the Wisconsin Examiner that now the Legislature can preemptively hire attorneys, the Department of Administration should closely monitor those actions to make sure that taxpayer money isn’t misspent. 

“I’d want to see full detail of what every lawyer did on every day and every bit of time to make sure this hiring of outside counsel doesn’t become a boondoggle for Republican lawyers and so that the Legislature doesn’t get to set up a shadow attorney general’s office,” Pines says.

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Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.

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