Who Pays For The Legislature’s Lawyers? New Court Fight Seeks An Answer

A progressive law firm is suing the state Legislature for hiring private lawyers using public funds.

In the complaint, filed in Dane County last month by the firm Law Forward, a group of taxpayers alleges the Legislature has spent millions of dollars since 2019 pursuing legal cases with public money for partisan ends.

The lawsuit calls for an end to the practice, saying the state Department of Justice exists to provide the government with legal services. It argues that using private lawyers violates the Legislature’s requirement to spend public money on public, not private aims, and violates the separation of powers by not using the DOJ for its representation.

The complaint says the Legislature has been wasteful in times it has joined onto cases involving the state DOJ, “to advance purportedly legislative interests (including the interests of individual legislators).”

In a press release announcing the lawsuit, Law Forward said the GOP-held Legislature enacted laws in 2018 to reduce executive branch power, accelerating to the use of private lawyers. But the lawsuit names both Republican and Democratic legislators as plaintiffs.

“This lawsuit challenges the tens of millions in taxpayer funds, most of which is wasted by the Republican-controlled Legislature on private legal counsel in pursuit of private interests, in clear violation of the Wisconsin Constitution’s public purpose doctrine and Wisconsin’s system of divided government,” said Law Forward President and General Counsel Jeff Mandell in a statement.

The Legislature’s top GOP leaders responded with their own written statement Wednesday criticizing the case.

“The Legislature hires attorneys to defend Wisconsin’s laws because the people of Wisconsin deserve a rigorous defense of the laws on the books,” said Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Devin LeMahieu, R-Oostburg. “Even though the Attorney General can defend our laws, we have seen that the Department of Justice is unable to put politics aside on partisan issues.”

“Hiring outside counsel simply allows the legislature to ensure all sides are presented vigorously so the judiciary can hear all points of view to make the best decision,” the GOP leaders continued.

The complaint says the Legislature has spent more than $26 million on private lawyers since 2019. It names examples of “cases in which the Legislature has no legitimate public purpose to vindicate yet uses its general authority … to retain private counsel at taxpayer expense to satisfy private, partisan, or political interests.”

In one instance, the state Senate sued the city of Green Bay, saying that recording devices inside city hall violated privacy rights. The Law Forward suit argues the Legislature continued paying legal fees even after the Senate had been dismissed as a plaintiff, and thus no longer had “institutional interest” in that case.

The other involves the roughly $1.5 million spent on private lawyers during former Supreme Court Justice Michael Gableman’s failed investigation into the 2020 election. In that instance, Vos hired Gableman to review Wisconsin’s outcome, and later fired him after Gableman racked up additional legal fees tied to misconduct allegations.

The Law Forward suit traces these types of legal contracts to the “lame duck” laws passed in late 2018, shortly after former Gov. Scott Walker and former Attorney General Brad Schimel, both Republicans, were defeated in their reelection bids. Those laws reduced the power of both offices right before Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, were sworn in.

Among the changes was one authorizing legislative leadership to hire attorneys without weigh-in from the entire Legislature or the governor. Law Forward refers to that move as the “Statutory Scheme.”

“The use of these attorneys and the extent of their costly bills have been hidden from the public,” said a press release from Law Forward. “The lawsuit alleges this has resulted in years of unconstitutional spending: on interventions even where the Legislature had nothing to add, on partisan investigations that produced nothing, and on litigation that a federal judge found the Legislature had no standing to bring.”

The announcement of the suit came on the same day that oral arguments in a Wisconsin Supreme Court case about a different lame duck law. That case focuses on whether the attorney general needs the Legislature’s approval to pay for for attorney fees.

Wisconsin Legislature sued over use of private lawyers was originally published by Wisconsin Public Radio.