Wisconsin legislators can hire lawyers before lawsuits, court rules

Wisconsin Capitol in Madison

A divided Wisconsin Supreme Court ruled Thursday that state lawmakers can hire private attorneys at taxpayer expense even before a lawsuit has been filed, an expansion of what had been done under current law.

The 4-3 ruling came in a case that challenged Republican legislative leaders hiring attorneys last year to handle lawsuits over redistricting before one had been filed. A Dane County circuit court judge blocked the hiring, but the Supreme Court stayed that ruling while it considered the case.

The question related to the hiring of attorneys in that case is now moot because a redistricting lawsuit was subsequently filed, giving lawmakers the right to hire outside attorneys. The attorney contracts call for paying them more than $1 million in taxpayer money.

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But that left the court with the larger question of whether lawmakers can again hire their own attorneys in anticipation of a lawsuit being filed, rather than after a legal challenge.

The conservative majority of the Supreme Court said Thursday that lawmakers were justified in hiring attorneys and ordered the lower court's ruling reversed.

Wisconsin Supreme Court

Wisconsin Supreme Court

The attorney for the lawmakers had argued that hiring outside law firms was allowed under a state law used for procuring goods and services. But Lester Pines, the attorney for taxpayers challenging the law, said letting Republicans hire attorneys in anticipation of a lawsuit would allow them to establish a "shadow attorney general’s office" outside of the justice department paid for by taxpayers.

"The term ‘contractual services’ under (state law) is unambiguous and includes attorney services," Chief Justice Annette Ziegler wrote for the majority.

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Pines did not immediately return a message seeking comment.

"The court affirmed the legislature’s power as a co-equal branch of government to hire its own legal counsel," Assembly Speaker Robin Vos said in a statement. "Hopefully, this decision helps curb the waste of taxpayer money spent defending frivolous lawsuits."

Justice Rebecca Dallet, writing for the liberal minority, said the ruling disregards a requirement in state law that lawmakers must get approval from a joint legislative organization committee before entering into any contract, something that did not happen when redistricting attorneys were hired. The majority ruling allows lawmakers "to exercise purchasing authority they don’t have, thereby eliminating a safeguard against the misuse of taxpayer dollars."

Wisconsin State Capitol, Madison

Wisconsin State Capitol, Madison

Vos and Senate Majority Leader Devin LeMahieu hired attorneys outside of the Wisconsin Department of Justice in December 2020 and January 2021 before any redistricting plans had been released, let alone voted on by the Legislature or challenged in court.

The lawsuit was brought by a group of four Madison teachers, including the current and incoming teachers union president at the time.

The Supreme Court heard arguments in the main redistricting case last week and could issue their ruling soon which will determine which maps should be enacted setting political district lines for the next decade.


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