Judge kills lawsuit, allows payment of caucus legal fees
10:57 AM 10/07/02
Ed Treleven Courts reporter
indentA Dane County judge on Monday threw out a lawsuit that tried to block the payment of legal fees for state legislators and employees connected to the caucus probe.
indentCircuit Judge David Flanagan dismissed the lawsuit brought by Common Cause in Wisconsin, writing that the Legislature has the constitutional authority to decide whether the payment of legal fees for its employees serves the public interest.
indent"The Legislature's choice to pay or reimburse fees in this instance may or may not be a reasonable measure," Flanagan wrote. "It may or may not be a wise choice but is a choice which should be assigned to the Legislature and, based upon the factual record before the court, it should remain a choice for the Legislature, not a circuit court."
indentThe public purpose doctrine implicit in the state constitution requires payment or reimbursement of legal fees for state employees whose work was being done within the scope of their official duties, Flanagan wrote.
indentSenate Majority Leader Chuck Chvala, D-Madison, called Flanagan's decision "a clear and unequivocal decision consistent with advice given by the non-partisan Legislative Council some time ago," spokesman Mike Browne said.
indentTaxpayers so far have paid $590,924 for legal representation of staffers and lawmakers in the Assembly and Senate connected to the secret John Doe investigation of the Legislature's now-defunct partisan caucuses. That does not include fees for lawsuits and other actions related to the investigation being conducted by Dane County District Attorney Brian Blanchard and Milwaukee County District Attorney E. Michael McCann.
indentCommon Cause, which has 45 days to appeal the ruling, had argued that the payments violate the public purpose doctrine because they serve only the private needs of legislators and caucus employees who are under investigation for their roles in allegedly illegal campaign activity. The group asserted that the actions of those whose legal fees were paid were outside the scope of their legislative duties.
indentBut Flanagan wrote that Common Cause's complaint doesn't include or seek a finding that caucus employees were engaged in campaign activities during work hours and only mentions an investigation into that possibility, he wrote.
indentHad it been in the complaint, he wrote, such an allegation could be read to suggest that the employees were doing campaign work instead of their assigned legislative duties or that the duties assigned those employees improperly included campaign work.
indent"In the latter situation, the employee might well have been doing precisely what the Legislature hired that person to do, and would therefore have been within the scope of employment," Flanagan wrote.
indentHe also rejected Common Cause's argument because he said it suggested guilt on the part of those who are under investigation, including 19 people who have asserted their Fifth Amendment right not to testify during the John Doe hearings.
indent"It is a remarkable and a fundamentally wrong idea to suggest that this court should presume these people to be guilty of any crime," Flanagan wrote.
indentCommon Cause executive director Jay Heck said there's a "silver lining" in Flanagan's ruling, which comes less than a month before the Nov. 5 election.
indent"(The ruling) moves this issue out of the legal arena and into the public arena and puts it clearly in front of the voters as to whether (the payment of legal fees) is good public policy or not," Heck said. "Voters will now have to add this to the mix when deciding who to vote for in the governor's race or the Legislature."