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  • February 01, 2022

    In 4-3 Decision, Wisconsin Supreme Court Upholds Legislative Contracts With Redistricting Lawyers

    A contract for legal services related to redistricting that was authorized by a legislative committee and signed by a state senator is valid, the Wisconsin Supreme Court has held.

    Jeff M. Brown

    Drunk Driving

    ​Feb. 1, 2022 – A contract for legal services related to redistricting that was authorized by a legislative committee and signed by a state senator is valid, the Wisconsin Supreme Court has held.

    In Waity v. Lemahieu, 2021AP802 (Jan. 27, 2022), the supreme court ruled that the Committee on Senate Organization had the authority to contract for outside legal services, even if a lawsuit has not been filed.

    The court also clarified the standard for deciding whether to stay a decision pending appeal and ruled that the circuit court judge improperly applied the standard.

    The decision came on a 4-3 vote. Chief Justice Annette Ziegler wrote the majority opinion. Joining her in the opinion were Justice Patience Roggensack, Justice Rebecca Grassl Bradley, and Justice Brian Hagedorn. Justice Rebecca Dallet dissented, joined by Justice Ann Walsh Bradley and Justice Jill Karofsky.

    Bypass Petition Granted

    On Jan. 5, 2021, the Committee on Senate Organization authorized the purchase of legal services related to the decennial redistricting process. The next day, Senator Devin Lemahieu (R-Oostburg) signed a contract with a law firm for advice on redistricting issues and representation in any related judicial proceedings.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Respondents filed suit in Dane County Circuit Court, seeking a temporary injunction and a declaratory judgment that the contract was void.

    The circuit court granted summary judgment for the petitioners', ruling that the legislature was only authorized to purchase services related to purchases of physical property. The circuit court denied petitioner’s request to stay its ruling pending appeal.

    The Wisconsin Court of Appeals denied petitioners' request for a stay. The supreme court then granted petitioners request to bypass the court of appeals under Wis. Stat. section 809.60.

    Broad Authority to Purchase Services

    Chief Justice Ziegler began her opinion by explaining that the circuit court erred by interpreting Wis. Stat. section 16.74(1) as limiting the scope of services the legislature is authorized to purchase.

    In relevant part, that statute reads “[a]ll supplies, materials, equipment, permanent personal property and contractual services required within the legislative branch shall be purchased by the joint committee on legislative organization or by the house or legislative service agency utilizing the supplies, materials, equipment, property or services.”

    Nothing in the text of section 16.74(1) links the purchase of services to the purchase of property, Chief Justice Ziegler wrote. Furthermore, section 16.70(3) defines “contractual services” as including “all services, materials to be furnished by a service provider in connection with services, and any limited trades work involving less than $30,000 to be done for or furnished to the state or any agency.”

    “In section 16.74, the legislature did not enact a limited purchasing power,” Chief Justice Ziegler wrote.

    ‘Substantial Compliance Difficulties’

    The fact that no redistricting lawsuit had been filed when the legal services were purchased was immaterial, Chief Justice Ziegler explained.

    “There is no support found in either the text of section 16.74 or in the basic principles of litigation practice that counseling prior to the filing of a lawsuit is not worthwhile or helpful. In fact, it can be of equal or greater importance than representation in subsequent legal proceedings,” Chief Justice Ziegler wrote.

    “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.”

    Furthermore, Chief Justice Ziegler explained, interpreting section 16.74 to prohibit the legislature from contracting for legal services before a lawsuit was filed would prevent the legislature from hiring legal counsel to file a lawsuit.

    “Such an interpretation is absurd,” Chief Justice Ziegler wrote.

    Stay Analysis Was Flawed

    The circuit court also misapplied the four-factor test for analyzing petitioners' request for a stay pending appeal, Chief Justice Ziegler explained.

    In considering the first factor of the test – whether petitioners' made a strong showing that they would likely succeed on the merits – the circuit court improperly looked only to its own assessment of the merits, Ziegler wrote.

    “If the circuit court were asked to merely repeat and reapply legal conclusions already made, the first factor would rarely if ever side in favor of the movant . . . When reviewing the likelihood of success on appeal, circuit courts must consider the standard of review, along with the possibility that appellate courts may reasonably disagree with its legal analysis.”

    The circuit court’s consideration of the second factor – whether the movant shows that a stay is necessary to avoid irreparable injury – was also flawed, Ziegler wrote.

    “Here, due to the circuit court’s order, the legislature was deprived of counsel of its choice for two and a half months. In the meantime, the demands of redistricting continued as the legislature prepared to draw new maps and the risk of litigation materialized.

    “The circuit court failed to consider that, if its order were overturned, the legislature could not get legal advice ‘back’ for this critical time in which an injunction was in effect.”

    Committee Confusion?

    In her dissent, Justice Dallet explained that the majority had ignored the requirement in section 16.74(1) that only the joint committee on legislative organization or one of the legislative houses may purchase contractual services.

    There was nothing in the record to show that the joint committee or either house purchased the legal services at issue, Justice Dallet wrote.

    “Without such evidence, there is no factual basis for the majority opinion’s conclusion that these contracts are valid.”

    In a footnote, the majority responded to the dissent’s reasoning by reasoning that section 16.74(1) does not prohibit either house from designating committees to purchase services on its behalf.

    “But that never happened,” Justice Dallet wrote. “And even if it had, our precedent makes clear that internal rules cannot trump explicit statutory requirements.”

    Nothing in section 16.74(1) authorizes the Senate or Assembly to designate their respective organization committees to exercise the power of the house to purchase the legal services, Dallet explained.

    ‘Novel and Unworkable’

    Justice Dallet wrote that the majority’s holding on the petitioners' request for stay pending appeal “unsettles what was a well-established, long-standing test for stays, applying the [four factors] in a novel and unworkable way.”

    Precedent requires appellate courts to grant a large degree of deference to a circuit court’s decision on a request for a stay pending appeal, Dallet explained.

    Instead, Justice Dallet wrote, the majority improperly substituted its own judgment for that of the circuit court. Furthermore, the majority’s focus on the role the standard of review should play in applying the four-factor test ignored the fact that the court of appeals reviews question of law de novo.

    “Under the majority’s view, when the circuit court interprets statutory language for the first time, it must always grant a stay because it’s possible another court may disagree with the circuit court’s analysis on appeal . . . This ‘reasoning’ is nonsensical on its face.”

    Justice Dallet predicted that circuit courts would struggle to apply the four-factor stay analysis as interpreted by the majority.

    “The result is a guessing game about how to conduct a [four-factor stay] analysis. We can and should do better.”

    Not a New Standard for Stays

    Justice Hagedorn wrote separately to respond to the dissent’s assertion that the majority had established a new standard for assessing petitions for stays pending appeal.

    Nothing in the majority’s reasoning represented a departure from the traditional four-factor stay analysis, Justice Hagedorn wrote.

    “All the majority says on this point is that the circuit court’s stay analysis should account for the standard of review on appeal. The dissent, in contrast, seems to think that if a court disagrees with a party’s legal argument, a stay will rarely be appropriate. But that is not the law.”




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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