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Who's on the Hook for Wisconsin Republicans' Legal Fees?

Taxpayers again could foot the bill

Jan. 12, 2012
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In a strongly worded response chastising the attorneys defending the Republican-drawn legislative redistricting map, a three-judge panel ordered the attorneys to pay some of the fees of the opposing counsel.

But will taxpayers ultimately have to pay the tab for the unprofessional conduct of the Republicans' attorneys?

The three federal judges ordered attorneys Eric McLeod, Joseph Olson and Aaron Kastens—as well as their law firm, Michael Best & Friedrich—to pay the fees and to "cooperate immediately" in handing over requested documents.

On Tuesday, Godfrey and Kahn reported to the judges that the firm spent $17,478.81 on the disputed motions.

The Michael Best attorneys are representing the Republican-led state Senate and Assembly, which passed the new legislative district map and hired outside consultants to draw the maps in secret. The attorneys have argued that the for-hire consultants should be granted legislative immunity and therefore should not have to be deposed or provide material related to their redistricting work.

The judges haven't bought the Republicans' argument—repeatedly—which is why they finally put their foot down and penalized the Michael Best attorneys.

In their Jan. 3 order, the judges were concerned about the taxpayers ultimately footing the bill for this penalty, which is why the court is requiring the attorneys to pay the costs resulting from the "sandbagging, hide-the-ball trial tactics that continue to be employed," as they wrote in their order.

The judges—U.S. District Judge Robert Dow, U.S. District Judge J.P. Stadtmueller and Seventh Circuit Court Judge Diane Wood—said they have been clear from the start and "will not suffer the sort of disinformation, foot-dragging, and obfuscation now being engaged in by Wisconsin's elected officials and/or their attorneys."

Attorney Olson emailed the Shepherd to state, "We will, of course, comply with the order and the fees will not be passed on in any way to the client and taxpayer."

Will Money Come From Taxpayers?

Although the judges are penalizing the individual attorneys, state Rep. Fred Kessler (D-Milwaukee) is concerned that taxpayers will somehow end up paying for the Republicans' lack of cooperation.

In a letter dated Jan. 6, Kessler asked Senate Majority Leader Scott Fitzgerald (R-Juneau) and Assembly Speaker Jeff Fitzgerald (R-Horicon) for clarification on the legal fees.

He wondered why private attorneys were hired to create the new map in the first place, since the Legislature has legal counsel that could have done the work. Instead, Republican legislative leaders hired outside attorneys—including Michael Best—and consultants, to the tune of $400,000.

Now private attorneys are defending those maps in federal court and racking up fines for their "sandbagging, hide-the-ball trial tactics."

Kessler is worried that the attorneys could pass the costs along to the taxpayers.

"Will these fees be paid directly from the firm and the lawyers named by the panel?" Kessler asked the Fitzgeralds in his letter. "Or, will the money come from the taxpayers of Wisconsin through past and future public funds paid to Michael Best and Friedrich?

"Or, maybe, the fee could be paid by those responsible for creating the legislation in question and the ones that stand to benefit from the tactics used by their private legal counsel. The Republican Party of Wisconsin will undoubtedly be the biggest beneficiary from the redistricting plan they designed behind closed doors, a plan that has been fraught with controversy and has faced many allegations of blatant gerrymandering and disenfranchisement."

Michael Best represented the Republican-led state Legislature in last year's collective bargaining suit—earning at least $290,000—and until recently it represented the Republicans in a challenge to the recall statute. Attorney Eric McLeod also defended state Supreme Court Justice Michael Gableman in an ethics case; Gableman didn't disclose that he did not pay the firm for its work and went on to hear cases involving Michael Best before the state's highest court. Gov. Walker's campaign fund has paid the firm $60,000 for work relating to the John Doe investigation and other matters.

Kessler hadn't received a response from the Fitzgerald brothers by Tuesday. Representatives for the Fitzgeralds did not respond to the Shepherd's request to comment.

The redistricting case is scheduled for trial before the three federal judges on Feb. 21.


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