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Wisconsin justices OK Republican redistricting attorney contracts

The high court’s majority said legislators have statutory authority to enter into contracts with private attorneys, including over redistricting, even if no lawsuit has been filed yet.

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Thursday found Republican legislators were within their rights to enter into contracts with private attorneys to advise them on redistricting before litigation began, a decision arriving months after the contracts were tossed by a lower court.

Though somewhat tangential to Wisconsin’s larger redistricting fight, the high court’s party-line 4-3 decision reestablished the broad latitude lawmakers have to spend taxpayer money on materials and services required for legislative duties.

This includes, the court reasoned, hiring private attorneys outside the Wisconsin Department of Justice to engage in partisan legal battles over redistricting before any lawsuit is filed or the redistricting process begins in earnest.

Four Wisconsin taxpayers sued Wisconsin Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Devin LeMahieu, R-Oostburg, last March over contracts they signed 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.

The contracts were illegal, the taxpayers claimed, because nothing in state law or the Wisconsin Constitution permits lawmakers to engage counsel outside the state DOJ when the Assembly, Senate or Legislature at large are not party or have no interest in any active lawsuit, and the mere possibility of litigation over drawing Wisconsin’s electoral maps is not good enough.

Dane County Circuit Court Judge Stephen Ehlke agreed with the taxpayers and voided the contracts last year. The judge felt the potential for a lawsuit over redistricting cannot mean the Legislature can immediately lawyer up, as that power could be interpreted such that lawmakers can intervene in any challenge to state law and violate the province of the executive branch.

Split along party lines, the state supreme court last summer let legislators leapfrog the court of appeals to present their case to Wisconsin’s highest judicial body directly and reinstated the contracts. Arguments occurred in November, leading to Thursday’s decision.

In a 38-page decision from the court’s conservative majority, Chief Justice Annette Ziegler stated unequivocally that the legislators’ contracts with their attorneys were legal and the circuit court was wrong to enjoin them.

Ziegler felt the circuit court misinterpreted that the relevant statute—which also allows the legislature to spend tax dollars on things like office supplies—to mean lawmakers could not purchase contractual services that are not related to or required by purchases of other physical property.

Offering a straightforward plain-language analysis, Zieger said “the term ‘contractual services’ includes the provision of work or labor to another in exchange for compensation, under an enforceable agreement. Unambiguously, this includes the provision of legal services under contract.”

The justice rejected the idea that the contracts were invalid because redistricting litigation had not started yet, as it is common and often prudent in complex litigation to seek legal advice for upcoming court proceedings, and something high-stakes like redistricting absolutely qualifies. Legal advice ahead of litigation can be even more important than representation during proceedings, she said.

“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,” Ziegler said.

Ziegler continued that “it strains credulity to conclude that the need for legal advice in this area was fictitious or somehow disconnected from legitimate legislative activities.”

The majority opinion additionally chided Judge Ehlke for denying the legislators a stay of his injunction pending appeal, which Ziegler explained went against the four-factor standard for stays pending appeal, in part because Ehlke relied only on his own legal reasoning in determining an appeal would be meritless.

Thursday’s majority decision reversed Ehlke’s grant of summary judgment to the taxpayers and remanded so he can enter judgment in favor of the legislators. Although the matter of the attorney contracts germane to the case is now moot since redistricting litigation is well underway in Wisconsin, the court's decision establishes a clearer precedent for these types of contracts going forward.

Ziegler was joined in the majority by fellow conservative Justices Patience Roggensack, Rebecca Grassl Bradley and Brian Hagedorn. Hagedorn filed a concurring opinion further supporting the majority’s interpretation regarding stays pending appeal.

Justice Rebecca Dallet, along with fellow liberal Justices Jill Karofsky and Ann Walsh Bradley, argued in a 21-page dissent that the contested legal contracts were invalid, for one thing, because they were not purchased and ratified by the Legislature’s Joint Committee on Legislative Organization or either legislative house utilizing the attorneys’ services as required by statute.

“In ignoring this statutory requirement, the majority wrongly allows petitioners to exercise purchasing authority they don’t have, thereby eliminating a safeguard against the misuse of taxpayer dollars,” Dallet said.

The majority also improperly read into state law that the possibility of litigation allows for entering private attorney contracts before such litigation exists, Dallet said, as that just allows legislative leaders to retain their own private counsel based solely on the belief their respective houses will become involved in a lawsuit, which contravenes the plain language saying a current lawsuit needs to be pending.

The minority’s dissent blasted the majority’s rationale regarding stays pending appeal, accusing it of creating a new, unworkable standard without adequately explaining how lower courts should apply it.

Lester Pines, a senior partner with Madison-based firm Pines Bach who argued on behalf of the taxpayers challenging the attorney contracts in November, said Thursday the high court's majority did not actually address the statutory arguments he made and instead spent most of their time talking about how the circuit court should have done a better job with the case.

Despite the high court giving legislators "carte blanche" to hire attorneys when they want and pay them how much they want with taxpayer money, Pines said moving forward he expects the Wisconsin Department of Administration to conduct audits of legislators' expenditures under a GOP-authored law "because they've been spending like drunken sailors."

Troutman Pepper attorney Misha Tseytlin, a former Wisconsin solicitor general who argued on behalf of the state legislators in November, applauded the court’s ruling.

“I am pleased that the Supreme Court agreed with our arguments and held that the longstanding, bipartisan practice of hiring outside counsel to assist in the redistricting process is entirely lawful,” Tseytlin said in a statement.

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