Wisconsin taxpayers accuse Legislature of wasting funds on private attorneys

MADISON, Wis. (CN) — Three Wisconsin taxpayers accused the Legislature of wasting taxpayer dollars to the tune of $26 million on private lawyers to undermine Democrat Attorney General Josh Kaul in a newly available lawsuit.

In 2018, the Republican-controlled Legislature passed a series of laws during an extraordinary lame duck session held weeks after current Governor Tony Evers and Kaul won elections against conservative incumbents but before they were sworn into office.

The lame duck laws reined in the executive powers of both offices to give the Legislature more oversight and leverage over the newly Democratic-controlled executive branch.

The plaintiffs in this case have taken aim at one bundle of the lame duck laws, which gives the Legislature the authority to hire private attorneys to represent its interests in place of the state Department of Justice, as prescribed in the state constitution.

This practice violates the public purpose and separation of powers doctrines of the constitution, according to the taxpayers, because there is no legitimate purpose for hiring a private attorney to do the job Kaul was elected to perform free of charge.

“In many instances, there is no legitimate reason, much less necessity, for these public expenditures on private counsel when the Legislature’s statutorily designated counsel — the attorney general and DOJ — are available to represent at no additional cost to taxpayers,” they said in the 43-page complaint.

Daniel Theno and Randy Scannell of Green Bay and J. Drew Ryberg of Eau Claire filed the suit in Dane County Circuit Court on Thursday against the Legislature and several individual members of the Joint Committee on Legislative Organization.

The statutory scheme created by the lame duck laws gave the Legislature the authority to intervene in any litigation challenging a state law, as well as the ability to hire outside counsel to intervene in those lawsuits even if the DOJ is already a party representing the state’s interest.

The taxpayers argue this duplicative representation authorized by the lame duck package fails to identify any legitimate public interest and is thus an illegal expenditure of taxpayer funds.

The Legislature has also used its newfound power to pursue several partisan campaigns to usurp the executive’s core powers.

One example the taxpayers gave is the “misadventures” of former Supreme Court Justice Michael Gableman, who was hired by Assembly Speaker Robin Vos to conduct a hyper-partisan investigation into the statewide 2020 election results.

Gableman was given a $680,000 budget and four months to write a report outlining legislative options after President Donald Trump lost Wisconsin in the 2020 presidential campaign.

Gableman’s report was not prepared within the original timeframe or budget and included several means through which Vos, who recently announced he will not seek reelection for his seat, could decertify the 2020 election results in the state.  

In his yearlong tenure, the Assembly — and, by extension, Wisconsin taxpayers —  paid Gableman $117,294 and spent $2.3 million in expenses for rent, travel, consultants and outside lawyers and court fines, according to the Office of Lawyer Regulation.

Outside lawyers were hired at the taxpayers’ expense to represent Gableman in litigation brought against him and his office of special counsel in the years following, including in the disciplinary proceedings brought against him before the Wisconsin Supreme Court, according to the taxpayer complaint.

Before Kaul took office, the taxpayers assert that the Legislature relied on the attorney general and the DOJ to represent its interests. The attorney general at the time was U.S. Attorney Brad Schimel, a Republican.

In 2015, Schimel and the Legislature even collaborated to form the solicitors general office within the DOJ with the express purpose to save taxpayers money on private attorney fees. The office was dissolved during the 2018 lame duck session, and in 2019, the Legislature began hiring outside counsel with increasing frequency.

Former Wisconsin Solicitor General Misha Tseytlin is now a partner at Georgia-based law firm Troutman Pepper Locke and continues to represent the Legislature in a private capacity.

Several statutes arising from the lame duck session have been overturned, including one that gave the Legislature final approval of all settlements involving the state.

The taxpayer plaintiffs in this case ask the court for a permanent injunction barring the Legislature from “spending taxpayer funds illegally” and to dismantle the statutory scheme allowing it to rely on outside counsel and circumvent the attorney general and the governor.

The Legislature did not immediately respond for comment on the practice of hiring outside counsel or on the complaint.

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