In yet another bit of tomfoolery and creative Wingnut Exceptionalism(tm) an ALEC insider in Wisconsin's legislature wants to set herself above the law governing open records.
Naturally, the attorney general is helping.
This is a press release from a FOIA list I lurk on, so it is reproduced in full below the widget.
The poster, Bekah Wilce of the Center for Media and Democracy, later added --
Just a little follow-up to this: Wisconsin State Journal, "Van Hollen defends senator's claim of immunity from lawsuits" - http://host.madison.com/...
Associated Press, "Wisconsin AG says he must defend legislator's immunity in open records lawsuit" - http://www.startribune.com/...
Bekah Wilce
Center for Media and Democracy, Wisconsin Attorney General Seeks to Vitiate Open Records Law to Protect ALEC’s National Treasurer (press release), September 13, 2013.
CONTACT: Alex Oberley, 608-260-9713, Alex@PRwatch.org
Madison -- Wisconsin Attorney General J.B. Van Hollen has taken the unprecedented step of asserting that a state legislator cannot be held accountable for refusing to disclose public records in response to a lawful open records request by the Center for Media and Democracy.
Van Hollen’s department asserted in court filings that Wisconsin Senator -- and American Legislative Exchange Council (ALEC) national treasurer -- Leah Vukmir cannot be served with a court order demanding that she comply with her legal responsibilities under the open records law.
This novel legal argument reverses the policy and practice of prior Attorneys General and would make any state legislator immune from enforcement of the state open records law and any other civil matter.
“Because the current practice of the legislature is never to be out of session, the Attorney General’s position means that state legislators can’t be held accountable for refusing to comply with their duties under the open records law. This is a radical departure from the clear language of the law, from the position taken by previous Attorneys General, and from Wisconsin’s long, proud history of transparency and commitment to open government,” said Brendan Fischer, General Counsel, Center for Media and Democracy.
A Wisconsin Constitutional provision from 1848 gives legislators limited immunity from arrest or civil process “during the session of the legislature,” which at the time only lasted for a few weeks or months. But today, the legislature remains in session continuously, even during recess, for a full two years. The same day that one session ends, the next one begins. Van Hollen’s position would close off any possibility of enforcing any civil action against a state legislator.
The Attorney General’s office has previously argued that the provision only applied during “floor session,” but is now reversing precedent and essentially arguing that a legislator can never be held accountable for defying the open records law. This position, if upheld by the court, would reverse decades of history and practice and effectively dismantle Wisconsin's public records law as it applies to the state legislature.
The Center for Media and Democracy filed suit against Senator Vukmir in June for her failure to release ALEC-related public records. Senator Vukmir is ALEC’s national treasurer. She attended ALEC’s Oklahoma City meeting in May 2013 and sponsored an ALEC “model” bill that was adopted by ALEC politicians and corporate lobbyists as ALEC policy. Now she is asserting she does not have a single record relating to the bill or the Oklahoma meeting responsive to CMD’s routine request.
“Senator Vukmir is acting like she is above the law, but Wisconsin's open records laws have always applied to legislators. I've seen her at ALEC resort meetings and cigar parties, and we have documented that as a state elected official she has sponsored numerous ALEC bills secretly voted on by corporations and politicians. We have uncovered that she has received thousands of dollars in ALEC 'scholarships' for these trips, and now she is trying to keep ALEC's communications with her secret from the people of Wisconsin by claiming no citizen of the state can enforce civil laws against legislators. What is she really hiding?" added Lisa Graves, CMD’s Executive Director, who formerly served as a senior advisor in all three branches of the federal government.
The Wisconsin State Journal reported on how Senator Vukmir’s staff berated and physically assaulted a process server trying to routinely serve the legislator with a court order. The process server’s sworn affidavit filed with the court can be viewed here.
The lawsuit arose in part because ALEC has been stamping its documents with an extraordinary “disclaimer” asserting that documents it sends to legislators are not subject to any state’s public records law, and distributing bills and other material via an Internet dropbox, which makes the records more difficult to access through open records. ALEC admitted to the Wisconsin State Journal in June that these tactics are part of the organization’s effort to evade open records laws.
Last year, CMD settled a suit against five Wisconsin ALEC members who tried evading the open records law by shifting ALEC correspondence to a personal email account. ALEC has faced increasing scrutiny since CMD launched its ALEC Exposed project in July 2011, making the entire ALEC library of more than 800 "model" bills publicly available for the first time.
Read more about ALEC's influence in Wisconsin in CMD's report ALEC Exposed in Wisconsin.
For more on this, see:
Milwaukee Journal Sentinel: Sen. Leah Vukmir tries to sidestep open records suit
Wisconsin State Journal: Process server says senator's aide chased and pushed him down
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Articles
Wisconsin Public Radio, Sept 16 – (right at the beginning)
State Capitol Report
http://wpr.org/...
Milwaukee Journal Sentinel, Sept 14 (Sunday print edition)
Democratic state senator says Van Hollen did reversal on open records
http://www.jsonline.com/...
Associated Press, Sept 13/14
Wisconsin: State senator tries to block open records lawsuit
http://www.twincities.com/...
Wisconsin State Journal, Sept 14 (Front page, Saturday print edition)
Open government advocates fume as GOP senator claims immunity from records law
http://host.madison.com/...
Capital Times, Sept 14
Leah Vukmir invokes defense that would gut open records law for Wisconsin lawmakers
http://host.madison.com/...
Wisconsin Public Radio, Sept 13
State DOJ: Senator Vukmir Immune from Civil Lawsuits
http://news.wpr.org/...
Milwaukee Journal Sentinel, Sept 12 (front page, Local Section)
Sen. Leah Vukmir tries to sidestep open records suit
http://www.jsonline.com/...
Associated Press, Sept 12 (Todd Richmond)
Lawsuit server says Wis. leg aide pushed him
http://host.madison.com/...
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Editorials
Milwaukee Journal Sentinel
Legislators are not above state's open records law
http://www.jsonline.com/...
LaCrosse Tribune
Our view: Openness applies to lawmakers, too
http://lacrossetribune.com/...
Capital Times
J.B. Van Hollen attacks public's right to know
http://host.madison.com/...
"It’s disappointing {the AG] thinks state legislators are apparently above the laws with which everyone else must comply" http://chippewa.com/...
Beloit paper: "The appropriate reaction from the people is a sputtering red rage at the depths of arrogance underlying such a claim" http://www.beloitdailynews.com/...
Milwaukee Journal Sentinel: Legislators are not above state's open records law
Sept. 16, 2013
"Wisconsin's open government laws promote democracy by ensuring that all state, regional and local governments conduct their business with transparency. Wisconsin citizens have a right to know how their government is spending their tax dollars and exercising the powers granted by the people."
That's from the Open Government page of the state Department of Justice's website. Yet Attorney General J.B. Van Hollen, the head of that department, is turning his back on virtually every word in that statement in his argument on behalf of fellow Republicanstate Sen. Leah Vukmir that state legislators can't be sued to provide records while they're in office.
Van Hollen's and Vukmir's argument flies in the face of the intent of the open records and open meeting's laws and in the previous practice of obtaining open records. It flies in the face of every principle of open government and transparency. If Van Hollen's argument prevails, legislators will be able to ignore the open records law at will and make open government an option rather than a requirement.
In the case in question, the liberal Center for Media and Democracy sued Vukmir (R-Wauwatosa) in June, contending she had violated the open records law by not turning over records related to her involvement with the American Legislative Exchange Council, Journal Sentinel reporters Patrick Marley and Jason Stein reported last week. ALEC works with corporations and conservatives to write model legislation that can be introduced in state legislatures throughout the country.
On Wednesday, Van Hollen filed a motion on Vukmir's behalf, claiming she is immune from lawsuit while she remains in office.
No other legislator who has faced such a case in recent years has argued that he or she is above the law. Those legislators have fought such cases or settled them. No one has said that the law doesn't apply to legislators.
Legislators do have a limited immunity from lawsuits while the Legislature is in session, which has been reasonably interpreted in the past to mean while the Legislature is actually meeting, not while it is technically in session but legislators are at home watching Packers games.
And Van Hollen seemed to agree with that interpretation in the past, as have other attorneys general. As Marley reported in a separate article, when the conservativeMacIver Institute sued Democratic Sen. Jon Erpenbach for emails related to the 2011 fight over collective bargaining, the attorney general declined to defend Erpenbach. A DOJ spokeswoman says the cases are different, but aside from one involving a Republican and one a Democrat, we fail to see how exactly.
This shouldn't be a partisan issue. In fact, Rick Esenberg, the conservative attorney MacIver hired to sue Erpenbach, told Marley that Van Hollen's latest interpretation of the law "would seem to extend the scope of the exemption provision well beyond its original meaning."
Vukmir's stance doesn't necessarily surprise; the conservative ideologue doesn't have a reputation as a champion for open government.
But Van Hollen does; he has generally been very good in advocating for transparency and making sure governments abide by the law. He even won the Political Openness Advocate of the Year Award from the Wisconsin Freedom of Information Council for "ongoing commitment" and "vigorous affirmations" of public records law, a fact he has touted.
But in a news release on Friday, the council said it was "shocked and saddened" by the stance taken by Vukmir and Van Hollen.
Every citizen of Wisconsin should join with the council in that reaction and demand that Van Hollen pull out of his support for Vukmir's attack on transparency and return to his role as a defender of open government.
Rebekah Wilce
Reporter and Researcher
The Center for Media and Democracy
(Winner of Sidney and Izzy Awards for excellence in journalism)
608-260-9713
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