Waity v. LeMahieu

• Citation: 2022 WI 6,400 Wis.2d 356,969 N.W.2d 263
• Decision Date: 27 January 2022
• Docket Number: No. 2021AP802,2021AP802
• Parties: Andrew WAITY, Judy Ferwerda, Michael Jones and Sara Bringman, Plaintiffs-Respondents, v. Devin LEMAHIEU, in his official capacity and Robin Vos, in his official capacity, Defendants-Appellants-Petitioners.
• Court: United States State Supreme Court of Wisconsin

400 Wis.2d 356

969 N.W.2d 263

2022 WI 6

Andrew WAITY, Judy Ferwerda, Michael Jones and Sara Bringman, Plaintiffs-Respondents,

v.Devin LEMAHIEU, in his official capacity and Robin Vos, in his official capacity, Defendants-Appellants-Petitioners.

No. 2021AP802

Supreme Court of Wisconsin.

Oral Argument: November 1, 2021

Opinion Filed: January 27, 2022

For the defendants-appellants-petitioners, there were briefs filed by Misha Tseytlin, Kevin M. LeRoy and Troutman Pepper Hamilton Sanders, Chicago. There was an oral argument by Misha Tseytlin.

For the plaintiffs-respondents, there was a brief filed by Lester A. Pines, Tamara B. Packard, Aaron G. Dumas, Leslie A. Freehill, Beauregard W. Patterson and Pines Bach LLP, Madison. There was an oral argument by Lester A. Pines.

There was an amicus curiae brief filed on behalf of Wisconsin Democracy Campaign by Jeffrey A. Mandell, Douglas M. Poland and Stafford Rosenbaum LLP, Madison; and Mel Barnes and Law Forward, Inc.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

ANNETTE KINGSLAND ZIEGLER, C.J.

¶1 This case is before the court on bypass pursuant to Wis. Stat. § (Rule) 809.60 (2019-20).¹ On bypass, we review an order of the Dane County circuit court,² Waity v. LeMahieu, No. 2021CV589 (Dane Cnty. Cir. Ct. Apr. 29, 2021), granting summary judgment in favor of Respondents, Andrew Waity, Judy Ferwerda, Michael Jones, and Sara Bringman, and against Petitioners, Devin LeMahieu and Robin Vos.³ In its order, the circuit court enjoined the Petitioners from issuing payments under two contracts for legal services, and it declared the contracts void ab initio.

¶2 Petitioners, on behalf of the legislature, entered into contracts for attorney services regarding the decennial redistricting process and resulting litigation. Respondents claim that Petitioners lacked authority to enter into the contracts, and they ask us to declare the agreements void ab initio. Because Petitioners had authority under Wis. Stat. § 16.74⁴ to "purchase[ ]" for the legislature "contractual services," the agreements at issue were lawfully entered. The circuit court's decision to enjoin enforcement of the contracts was improper.

¶3 We reverse the circuit court's grant of summary judgment in Respondents’ favor, and instead, we remand this case to the circuit court with instructions to enter judgment in favor of Petitioners. In addition, we clarify the standard for granting a stay of an injunction pending appeal. The circuit court in this case incorrectly applied that standard and refused to stay its injunction pending appeal of its decision. Further explanation from this court is needed to ensure the standard for stays pending appeal is correctly followed in the future.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 For decades, the Wisconsin Legislature has hired attorneys to provide competent legal advice on redistricting. Faced with the inherent challenges of drawing new political boundaries in the state, described both as a "thicket," Jensen v. Wis. Elections Bd., 2002 WI 13, ¶11, 249 Wis. 2d 706, 639 N.W.2d 537, and "a critical ... part of politics," Rucho v. Common Cause, 588 U.S. ––––, 139 S. Ct. 2484, 2498, 204 L.Ed.2d 931 (2019), the legislature has repeatedly consulted specialists to assist them in developing maps and to prepare for subsequent litigation. See Jensen, 249 Wis. 2d 706, ¶10, 639 N.W.2d 537 ("[R]edistricting is now almost always resolved through litigation rather than legislation ...."); see also, e.g., Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630 (E.D. Wis. 1982) (redistricting litigation for the 1980 census); Prosser v. Elections Bd., 793 F. Supp. 859 (W.D. Wis. 1992) (litigation regarding redistricting after the 1990 census); Baumgart v. Wendelberger, Nos. 01-0121 & 02-C-0366, 2002 WL 34127471, unpublished slip op. (E.D. Wis. May 30, 2002) (redistricting litigation surrounding the 2000 census); Baldus v. Members of Wis. Gov't Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012) (litigation challenging maps enacted by the Wisconsin Legislature and signed by the governor after the 2010 census); Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis. Sept. 22, 2021, amend. Sept. 24, 2021) (granting petition for leave to commence an original action on redistricting for the 2020 census).

¶5 For the 1980 and 1990 redistricting processes, the legislature hired attorneys to provide advice and represent its interests in litigation in federal and state court. Similarly, for the 2000 and 2010 processes, the Senate Committee on Organization authorized payments for attorney services for the Wisconsin Senate, while the Wisconsin Assembly obtained counsel for redistricting through separate agreements.

¶6 In line with historical precedent, the substantial legislative demands redistricting created, and the need for pre-litigation advice, both houses of the legislature retained legal counsel for the 2020 redistricting process. On December 23, 2020, Petitioners, on behalf of the senate and assembly, executed an attorney services contract to begin on January 1, 2021, with the law firm Consovoy McCarthy PLLC ("Consovoy"), in association with Attorney Adam Mortara. Consovoy and Mortara agreed to consult with the legislature on "possible litigation related to decennial redistricting," "provide strategic litigation direction," and "provide ... day-to-day litigation resources."⁵

¶7 On January 5, 2021, the Committee on Senate Organization issued authorization for purchase of attorney services. The committee voted to "authorize[ ] the senate ... to retain and hire legal counsel" for redistricting. The authorization was to remain "in force the entire 2021-2022 legislative session," and it provided Senator LeMahieu with the authority to "approve all financial costs and terms of representation."

¶8 On January 6, 2021, Senator LeMahieu, acting on behalf of the senate, signed an engagement agreement with the law firm Bell Giftos St. John LLC ("BGSJ"). The firm agreed to advise the legislature on redistricting, including the "constitutional and statutory requirements," "the validity of any draft redistricting legislation," and for "judicial ... proceedings relating to redistricting."

¶9 On March 24, 2021, the Committee on Assembly Organization followed the lead of the senate committee and voted to authorize Speaker Vos to "hire ... law firms, entities or counsel necessary related to ... legislative redistricting." In addition, the committee noted that Speaker Vos "has always [been] authorized" to contract for attorney services "beginning on January 1, 2021."

¶10 To perform their contract obligations, the legislature followed the same procedure it follows for all billings and expenditures for the legislative branch. A bill or statement was provided to business managers at the senate and assembly. The managers entered the billing information into an online software program called PeopleSoft; the information in PeopleSoft was checked by the chief clerks, who then approved the purchases and transmitted the information to the Department of Administration ("DOA"). The DOA, as with all purchases made by the legislature, received details through the PeopleSoft software on the payments requested by the legislature. The agency received: (1) the names of the billing entities and individuals (here the law firms contracted to provide services); (2) invoice codes specific to the purchases at issue; (3) invoice dates; (4) total dollar amounts requested; and (5) a general accounting code that categorized the types of purchases requested, i.e., legal services. After receiving this information from the legislature, DOA approved the purchases and transferred the requested funds to the senate and assembly.

¶11 On March 10, 2021, Respondents filed this taxpayer lawsuit in Dane County circuit court. They sought a declaration that the two attorney services agreements the legislature entered into were void ab initio. The complaint alleged that no legal authority permitted the Petitioners to sign the contracts on behalf of the senate and assembly. Soon after filing the complaint, Respondents moved for a temporary injunction barring the legislature from issuing payment under the attorney services contracts and prohibiting Petitioners from seeking legal advice other than from the Wisconsin Department of Justice.

¶12 Petitioners moved to dismiss the complaint. After a hearing, the circuit court denied the request for a temporary injunction and converted Petitioners’ motion to dismiss into a motion for summary judgment.⁶ The circuit court ordered additional briefing. In a response brief to the motion for summary judgment, Respondents stated that the court should not only deny Petitioners’ motion, but also grant summary judgment in Respondents’ favor.

¶13 On April 29, 2021, the circuit court issued a written decision agreeing with Respondents. The circuit court held that there was not statutory or constitutional authority by which Petitioners could enter into and perform on the attorney engagement agreements with Consovoy, Mortara, and BGSJ. Specifically, the court quoted Wis. Stat. § 16.74(1), which states, in relevant part: "All supplies, materials, equipment, permanent personal property and contractual services required within the legislative branch shall be purchased by the joint committee on legislative organization or by the house or legislative service agency utilizing the supplies, materials, equipment, property or services." (Emphasis added.) The circuit court read the provision as allowing the legislature to purchase supplies, materials, and contractual services, but only contractual services that are "relate[d] to" and "required" by purchases of other physical property. Thus, while the legislature could hire a repairman to inspect an air conditioning...