Daniel Bice
A three-member Wisconsin appeals court has awarded $241,000 in legal fees and to the liberal group American Oversight in two open records lawsuits it brought against Assembly Speaker Robin Vos over the investigation he ordered into the 2020 presidential election.
The Waukesha-based District II Court of Appeals rejected Vos' efforts to reverse Dane County Circuit Court decisions ordering the state to pick up $143,211 in legal fees for one American Oversight case and $98,000 for a second one. The rulings make clear the costs will ultimately be paid by taxpayers.
In a separate ruling, the Appeals Court dismissed a contempt order issued against the state Office of Special Counsel for violating a court order directing it to provide American Oversight with all the records it sought from the agency. Former state Supreme Court Justice Michael Gableman, who oversaw the Office of Special Counsel, was also cleared of having to pay a $24,000 fine.
These cases were part of a series of litigation brought by American Oversight arguing Vos, Gableman and the Office of Special Counsel failed to turn over public records from the conservative jurist's probe into Democrat Joe Biden's victory over Republican Donald Trump in the 2020 election.
These legal fees will come on top of the $1.1 million that Gableman ran up as part of his election investigation. Vos fired Gableman in August 2022 after the probe failed to turn up any evidence of fraud.
In the first case against Vos, the Appeals Court rejected his argument that American Oversight had failed to file a summary of its bills in time to be paid by the state. The three-judge panel found the liberal group filed a tally of its costs within 30 days of the lower court's order, even though the court clerk didn't sign and post the bill until two months later.
In the second case, lawyers for Vos, the state Assembly and Assembly Chief Clerk Edward Blaze disputed that the state should pick up American Oversight's legal fees and costs because they had been improperly held in contempt and that the lower court had awarded excessive compensation.
The three-judge panel on Thursday found the circuit court judge had set out a detailed record showing Vos and Blazel had failed to comply with a court order to turn over all records requested by American Oversight. The panel also concluded that the fees were not out of line, even if the attorney was the in-house counsel for the nonprofit watchdog group.
"In truth, what the Assembly Appellants ask us to do is substitute our judgment for that of the circuit court, which we will not do," said the Appeals Court decision.
The three appellate judges reviewing the public records cases were two conservatives — Mark Gundrum and Maria Lazar — and one liberal, Lisa Neubauer.
In its third Thursday ruling, the Appeals Court reversed the contempt order issued by Dane County Circuit Judge Frank Remington against the state Office of Special Counsel for failing to comply with a court order directing it to turn over all the public records sought by American Oversight.
The appellate ruling also revoked the $24,000 in sanctions imposed on Gableman under the lower court ruling. Remington fined Gableman $2,000 a day to compel Gableman's compliance with state open records law. It took 12 days between the court's order and the date of Gableman's June 28, 2022, affidavit.
In its 25-page decision, the Appeals Court concluded that the Office of Special Counsel was not given enough time to respond to American Oversight's contempt claim before a June 10, 2022, hearing. The Office of Special Counsel had hoped to put staffer Zakory Niemierowicz on the stand to fight the claim, but the appellate judges said Niemierowicz was given less than two days to hire an attorney before testifying.
Even so, the three-judge panel said it would be pointless to send the case back to circuit court for further proceedings on the contempt claim because American Oversight has obtained all the records it sought.
"American Oversight has been in possession of all responsive records since early April 2022," the Appeals Court ruling said. "Remanding this matter would consume scarce judicial resources with no practical benefit to American Oversight or to the public."
In response to the ruling, Chioma Chukwu, interim executive director of American Oversight, said the appellate court did not challenge the lower court's ruling that the Office of Special Counsel had violated Wisconsin's open records law. Chukwu said the state agency also admitted in a settlement earlier this year it violated the state law for retaining records.
"This decision, based merely on procedural grounds, does nothing to absolve OSC of its well-documented history of destroying public records and dismal record-keeping practices," Chukwu said in a statement on Friday.
Vos did not respond to a request for comment.
Contact Daniel Bice at (414) 313-6684 or dbice@jrn.com. Follow him on X at @DanielBice or on Facebook at fb.me/daniel.bice.
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