Badger State liberals and conservatives are gearing up for another legal battle over drawing new legislative maps, but a judge said anticipation of litigation is not enough for lawmakers to hire outside counsel.
MADISON, Wis. (CN) — A Wisconsin judge on Thursday voided contracts between GOP state lawmakers and private attorneys in anticipation of a legal fight over redistricting on the basis that the lawmakers had no authority to hire the attorneys in the first place.
Four Wisconsin taxpayers sued Wisconsin Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Devin LeMahieu, R- Oostburg, in March over contracts the legislative leaders took up with attorneys from Madison-based firm Bell Giftos St. John and Consovoy McCarthy, a boutique firm with offices in Boston and Washington that has represented the Republican National Committee and former President Donald Trump.
Those contracts, the taxpayers claimed, were unlawful because nothing in state statutes or the Wisconsin Constitution allows lawmakers to engage counsel outside the Wisconsin Department of Justice when there is no existing lawsuit in which the Assembly, Senate or Wisconsin Legislature are a party or have any interest.
Any “possible action” on the way over drawing Wisconsin’s legislative maps — which all involved plainly view as inevitable given the protracted litigation over the maps drawn in 2011– is an inadequate reason to hire outside attorneys for legal advice for lawsuits that do not yet exist, the plaintiffs’ complaint said.
Dane County Circuit Court Judge Stephen Ehlke agreed with the taxpayers on Thursday, concluding that “the contracts entered into with [Consovoy McCarthy] and [Bell Giftos] are void because defendants were not authorized to hire those firms for litigation purposes.”
Neither the Wisconsin Constitution nor any state statute allows the Legislature to hire outside attorneys in anticipation of litigation that has not happened yet or may not happen, Ehlke said.
The judge wrote in part that “to hold that a potential challenge to the redistricting plan implicates an institutional interest of the legislature would mean that any time a statute might be challenged the legislature may, under its shared powers with the executive branch, hire counsel to participate in the litigation,” which would effectively “allow the legislature to participate in all challenges to state law, thereby substantially interfering with the executive branch and the office of the attorney general.”
Ehlke’s decision on Thursday voided the contracts with both firms from their inception, permanently enjoined the lawmakers from authorizing any further payment to the firms under the contracts and granted the plaintiffs summary judgment, as well as costs and fees.
Court records show that Vos and LeMahieu have authorized $30,000 per month in payment to Consovoy McCarthy alone since hiring them in December 2020. Bell Giftos was hired the next month, although docket records do not readily show how much they were paid.
The drawing of Wisconsin’s electoral maps after the 2010 census resulted in outrage from liberals and contentious litigation, as opponents to the GOP-controlled Legislature objected to the secrecy and high-tech precision utilized to give Republicans friendly maps that many say granted them well-protected majorities in both chambers.
It is technically the purview of the Legislature to draw electoral maps based on population data from the U.S. Census Bureau, but the governor — in this case Tony Evers, a Democrat — has the power to veto the maps lawmakers create, which Badger State Republicans expect Evers to do.
Evers created the nonpartisan People’s Maps Commission last year to draw up what he hoped would be fairer maps, but state law does not require the Legislature to adopt those maps and Republicans have indicated they will draw their own instead.
Lester Pines, a partner with Madison-based firm Pines Bach who represented the taxpayers in their lawsuit, said in an interview Thursday that Ehlke “wrote a very outstanding decision” based on sound reason.
Pines emphasized that Vos and LeMahieu “exceeded their authority” by jumping the gun and hiring outside counsel for a lawsuit that has yet to materialize, and charged that “they are doing so in order to have the redistricting maps drawn in secret,” referring to the lawmakers as “authoritarians.”
For his part, Vos painted Ehlke’s decision as a partisan one on Thursday in an emailed statement which promised an appeal.
“It’s certainly no surprise that a Dane County judge gave liberal activists a favorable ruling in this case,” Vos said. “We will appeal the decision and move forward.”