Judge orders former conservative justice to produce records from work advising Vos on impeachment

Liberal watchdog group argued group violated Open Meetings, Open Records laws

A sign says "Dane County Courthouse" on the outside of a building.
The Dane County Courthouse on Thursday, May 25, 2023, in Madison, Wis. Angela Major/WPR

A Dane County judge has ordered former conservative Wisconsin Supreme Court Justice Patience Roggensack to turn over records related to her work advising Republicans on the possibility of impeaching newly-elected liberal Justice Janet Protasiewicz.

The order released Friday from Circuit Court Judge Frank Remington is the latest development in a lawsuit filed by the liberal watchdog group American Oversight, seeking transparency about the work of a panel of three former conservative justices convened by Assembly Speaker Robin Vos, R-Rochester.

Vos has said he asked the group to study the possibility of impeachment proceedings against Protasiewicz, a liberal who won election to the state Supreme Court earlier this year by a whopping 11 percentage points.

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American Oversight filed a lawsuit in September, arguing that Vos’ impeachment panel violated Wisconsin’s Open Meetings Act by not holding public meetings. In October, the group amended its complaint to include allegations that the panel violated the state’s Open Records law.

“The threats to impeach a duly elected justice are very significant — it’s one branch of the government threatening an independent branch of the government,” Heather Sawyer, American Oversight’s executive director, said in an interview with Wisconsin Public Radio. “We wanted to make sure … that the Wisconsin people were able to understand in real time as this was happening exactly what was happening, who was involved and why … they were taking potential action.”

American Oversight obtained records from former Justices David Prosser and Jon Wilcox, including records showing Prosser had advised Vos against impeachment. Wilcox told the Associated Press he also advised against impeachment.

But attorneys with American Oversight say they are still waiting for records requested from Roggensack. Under a writ of mandamus from Remington, she will be required to produce the records to American Oversight within 30 days.

Roggensack spent 20 years on Wisconsin’s highest court, including several years as chief justice. She chose not to run for re-election after her latest 10-year term expired in 2023.

In an email to WPR, Robert Shumaker, Roggesnsack’s attorney, wrote that Roggensack was out of the state when attorneys for American Oversight apparently attempted to serve her with a subpoena to attend Friday’s court hearing.

In an October letter to an attorney for American Oversight, Shumaker rejected the premise that Roggensack had documents to provide under the state’s public records law, and asserted that she was not a legal custodian of any public records. He also wrote that the group of former justices advising Vos did not amount to a governmental body which would be subject to Open Records and Open Meetings laws.

“Speaker Vos never asked Mrs. Roggensack to be part of a governmental committee or other governmental body and he never ordered Mrs. Roggensack to do anything,” Shumaker wrote. “Instead, Mrs. Roggensack understood Speaker Vos’s request to be that she, as a private citizen, who had previously been a Wisconsin Supreme Court justice, share her views with him.”

Vos and other GOP lawmakers have floated the possibility of pursuing impeachment proceedings against Protasiewicz, citing her refusal to recuse herself from cases they argue she has “prejudged.” As a candidate for the court, Protasiewicz referred to Wisconsin’s Republican-drawn legislative map as “rigged,” but she has declined to recuse herself from a lawsuit challenging the map, saying the law requires her to hear the case.

In a memo to Vos, Prosser wrote that Wisconsin’s Constitution allows civil officers to be impeached for crimes and misdemeanors or “corrupt conduct in advice.” But Prosser also told Vos that Protasiewicz’s conduct has not amounted to any of those impeachable offenses.

“Impeachment is very severe and ought to be very rare,” Prosser wrote in the memo he provided to American Oversight. “In my view, ‘corrupt conduct’ is not a term that is open to a mere political grievance. If that were the case, legislative bodies could be trading questionable impeachments with considerable frequency.”

Protasiewicz’s victory in April over former conservative Justice Dan Kelly was the most expensive state judicial race in U.S. history. When she took office on Aug. 1, Protasiewicz shifted the court’s balance in favor of liberals for the first time in 15 years.

Along with cases on gerrymandering, Wisconsin’s Supreme Court could weigh in on contentious issues ranging from voting rules to abortion rights.