Supreme Court clears way for liberal group to depose Assembly Speaker Robin Vos
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MADISON – The Wisconsin Supreme Court slammed down Assembly Speaker Robin Vos' attempt to avoid a deposition late Tuesday, setting the stage for him to take questions under oath Wednesday over whether he has followed the state's open records law.
It was the third court defeat for the Rochester Republican in a little over 24 hours as he sought to avoid answering questions from the liberal group American Oversight. The group has been seeking records of a partisan review of the 2020 election ordered by Vos.
The high court in a 4-3 ruling threw out Vos' last-minute request to cancel his deposition just hours after he made it. The majority consisted of the court's three liberals and Justice Brian Hagedorn, who was elected in 2019 with the support of Republicans.
It's the latest instance of Hagedorn splitting with the court's conservatives on politically charged issues.
Vos is slated to take questions just hours before he is scheduled to begin headlining a two-day fundraiser in Key West, Florida, for the Republican Assembly Campaign Committee. The $6,000-per-person event includes a tour of Ernest Hemingway's home and a catamaran sailing trip.
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Vos faced his first setback last week, when Dane County Circuit Judge Valerie Bailey-Rihn ruled that he and staff attorney Steve Fawcett would have to sit for depositions about how they responded to records requests and a court order.
Vos asked the District 3 Court of Appeals to keep him from having to sit for the deposition. On Monday, the appeals court unanimously declined to do that, saying Vos hadn't shown any harm he would suffer by answering questions.
On Tuesday, Bailey-Rihn again ruled in favor of the deposition, saying she would not stay her earlier decision.
"These open records (requests) have been pending for months; thus, additional delay may cause harm in the way of documents being destroyed or becoming stale," Bailey-Rihn wrote.
Vos then turned to the Supreme Court for help, contending American Oversight could not depose him at this stage of the lawsuit.
More: Dane County judge lets Gableman subpoenas of state elections officials stand for now
The Supreme Court quickly turned him down in a terse order.
In a concurring opinion, Hagedorn wrote that Vos was making a request that the justices "grant only in the rarest of cases." He noted that to prevail Vos needed to show the lower court had acted outside of its authority and he would suffer serious harm if the deposition were to occur.
"This petition comes nowhere close to meeting these legal standards," Hagedorn wrote.
The dissenters wrote that they would have canceled the deposition for the time being so they could consider weighty issues, including whether lawmakers can be forced to take questions while the legislative session is ongoing.
"The majority denies all relief without consideration of the constitution, caselaw, or basic principles of attorney-client privilege," the dissenters wrote.
The majority consisted of Hagedorn and Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky.
The dissenters were Chief Justice Annette Ziegler and Justices Rebecca Bradley and Patience Roggensack. The Bradleys are not related.
Election review is ongoing
Vos last summer hired former state Supreme Court Justice Michael Gableman to look into the 2020 election. Vos and other Assembly Republicans said they wanted the review even though recounts and courts have found Joe Biden beat Donald Trump in Wisconsin by about 21,000 votes.
Vos gave Gableman a taxpayer-funded budget of $676,000. They have released some records about their secretive review while holding back others.
American Oversight won a ruling from Bailey-Rihn in November requiring Vos to turn over more documents. The group maintains Vos hasn't produced all the records he should and has asked Bailey-Rihn to find Vos in contempt of court.
Bailey-Rihn has said she won't sanction Vos until she knows more about what happened. The depositions with Vos and Fawcett are meant to determine what records of the review they have maintained, whether they destroyed any records and what they did to search for documents when they received records requests.
She has said she does not understand why Vos has said he has so few records about the review. She emphasized that view in the ruling she issued Tuesday.
"If there are no documents responsive to the request, this begs the question, what are the Wisconsin taxpayers paying for?" she wrote.
Vos' attorney, Ronald Stadler, acknowledged in his filing to the Supreme Court that Vos might not possess some records because lawmakers are not required to hang onto the public documents they generate. Governors, frontline state workers and other public officials must retain public records for years, but lawmakers years ago carved themselves out from that requirement.
American Oversight has brought two other lawsuits against Vos and Gableman to try to obtain records. Those cases are ongoing.
Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.
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This article originally appeared on Milwaukee Journal Sentinel: Supreme Court clears way for liberal group to depose Speaker Robin Vos
