By M.D. Kittle | Wisconsin Reporter
MADISON, Wis. — Wisconsin taxpayers will pay for the Government Accountability Board’s failed attempt to intervene in a civil rights lawsuit that directly involves two of the agency’s actors — a lawsuit in which GAB could find itself a defendant.
The bill could max out at $25,000 to defend an agency that critics claim was intricately involved in an illegal investigation into conservative organizations, but the price tag could be more.
Late last month, a federal judge denied a motion by conservative activist Eric O’Keefe and the Wisconsin Club for Growth to add the GAB to the lawsuit as a defendant.
U.S. District Judge Rudolph Randa’s denial came without prejudice, meaning O’Keefe and the club could at a later date seek to add the GAB’s board members and its executive director, Kevin Kennedy, to the complaint.
The agency, which oversees state campaign and election law, was at the ground level of a multi-county, secret John Doe probe into at least 29 conservative organizations on a theory the groups may have illegally coordinated with Gov. Scott Walker’s campaign during Wisconsin’s partisan recall election season in 2011 and 2012.
Launched in late summer 2012 by Milwaukee County District Attorney John Chisholm, a Democrat, the politically charged probe, according to court documents, involved GAB contracted investigators Dean Nickel and Francis Schmitz, a former assistant U.S. attorney who subsequently was tapped as the proceeding’s special prosecutor.
In February, O’Keefe and the club filed their civil right lawsuit in federal court, claiming prosecutors had violated conservatives’ First Amendment rights in an investigation that, sources say, involved predawn, “paramilitary-style” raids at the homes of targets.
The plaintiffs followed up the federal lawsuit in late May with a state lawsuit in Waukesha County, alleging the GAB has created a “Frankenstein monster” out of its law enforcement authority.
The agency claims it shouldn’t be a party to the federal lawsuit, even as it has attempted to involve itself in the litigation that involves its two contracted employees.
Earlier this summer, the GAB asked the 7th Circuit U.S. Court of Appeals if it could intervene in the prosecutors’ appeal of Randa’s ruling to temporarily shut down the investigation. If it couldn’t do that, the agency said, it would at least like to submit an amicus brief in support of the prosecutors-turned-defendants.
The appeals court denied the request to intervene, but will allow the GAB to file an amicus brief.
While it resists being named a defendant in the federal court case, the agency protests it should be allowed to jump into the litigation and speak its peace, because the lawsuit “essentially involves third parties litigating by proxy the GAB’s view of Wisconsin campaign finance law.”
The motion to intervene totals 102 pages. That’s just a portion of the hundreds of pages and untold time the GAB’s legal counsel, Madison-based Lee, Kilkelly, Paulson & Younger, S.C., has logged in representing the board and its executive.
Who is paying for all of that legal time? Wisconsin taxpayers.
A contract obtained by Wisconsin Reporter spells out the obligations of the state and the law firm. The agreement, effective on May 23, 2014, one week before O’Keefe and the club filed the state lawsuit, is signed by Brian Hagedorn, the governor’s legal counsel, and the law firm’s Thomas H. Brush.
Under the terms of the deal, taxpayers are on the hook for a rate of $175 per hour, capped at a maximum payable amount, including expert/subcontracting fees and expenses, at $25,000.
“The State, however, will agree to reasonable amendments to this Contract to modify the maximum amount payable if litigation requires additional resources,” the contract states.
Invoices are subject to state audit to determine the “reasonableness and necessity of the charges,” the agreement stipulates.
Also spelled out in the contract is this line:
“The Attorney’s representation does not extend, and no payment will be made, for actions by the State not growing out of or committed in the lawful course of state duties.” That notion is at the heart of the conservatives’ lawsuits, that the prosecutors and the GAB didn’t act lawfully in conducting their extended investigation.
It remains unclear whether the GAB, through its attorneys, received clearance from Hagedorn to file the motion seeking to intervene in the federal lawsuit, or if doing so is included in the contract. The language of the agreement states:
“The Attorney accepts this appointment as counsel pursuant to (state statute) and agrees to provide professional legal services for the State relating to a civil-rights lawsuit by purported targets of a John Doe proceeding.”
Interesting to note that Walker, whose campaign appears to be in the crosshairs of the John Doe investigation, is responsible by state law for contracting legal representation for the agency — at least through a designee.
In January, a few weeks before O’Keefe filed the federal lawsuit, Walker wrote Hagedorn that he would turn over his authority to designate legal counsel for John Doe prosecutors to avoid any perceived conflict of interest.
Walker, in the letter, notes that state Attorney General J.B. Van Hollen declined to represent the state.
“In order to avoid any appearance of impropriety, you recommended that I delegate my authority under Chapter 14.11(2)(a)(2) to you for special counsel requests on this case, and erect a Chinese wall preventing me from any consultation or participation in appointing representation,” the governor wrote.
“Confirming our verbal conversation yesterday, I hereby so delegate my authority. With this delegation, I affirm that I will have no knowledge or decision-making authority in this matter, and further trust you to act in accordance with the state public interest in appointing counsel.”
Walker did the same in a June 18 letter to Hagedorn, “with the same ethical wall prohibiting my consultation or participation in special counsel appointments,” transferring his authority to appoint a legal representative for the GAB.
Hagedorn’s office said it couldn’t immediately respond to Wisconsin Reporter’s request for records related to expenses paid to date and work completed, but agreed to update the information when it is available.
GAB repeatedly has declined Wisconsin Reporter’s requests for comment on matters involving the lawsuit and the John Doe investigation.