Van Hollen says it's his responsibility to defend lawmakers who wish to invoke legislative immunity.
Wisconsin Attorney General J.B. Van Hollen has stuck close to his conservative roots since taking office in 2006. He has made defending the state's Voter ID law -- a Republican initiative -- a priority. And he has refused to defend the state's domestic partnership law, which was championed by Democrats. But his handling of the state's open records and meetings law rose above the fray of partisan politics -- until now.
Critics are lambasting Van Hollen's decision to argue in court that state Sen. Leah Vukmir, a conservative Republican from Wauwatosa, is immune from lawsuits while in office. Vukmir is being sued by the liberal Center for Media and Democracy, which contends she violated the state's open records law by not turning over documents related to an American Legislative Exchange Council task force meeting she attended in May. Vukmir told the Center she had no records from the meeting.
ALEC has come under intense scrutiny in recent years for its practice of developing model legislation in concert with corporations. The legislation is then pushed by conservatives in statehouses around the country.
Because the Wisconsin Legislature is now a full-time body, the attorney general's contention that Vukmir has legislative immunity from the Center's lawsuit could have far-reaching implications.
"Basically it means lawmakers can never be sued," says Bill Lueders, president of the Wisconsin Freedom of Information Council. "And the very fact they've been sued before successfully shows just how radical an interpretation it is."
It also appears to be unprecedented nationally.
"This is a brand new defense to me," says Kenneth Bunting, executive director of the National Freedom of Information Council. "I have heard of state legislatures that have said [their members] can't be compelled to appear during session, but that is different from being entirely above the law."
Van Hollen defended his decision in a statement Tuesday. He said he remained committed to open government but is bound to uphold a state constitutional provision stating that lawmakers "shall not be subject to any civil process, during the session of the Legislature."
"Whether the framers' decision to provide this unique protection to legislators was a proper balancing of interests is a debatable question," Van Hollen said. "What is not debatable is my responsibility to defend its application when it is invoked."
Van Hollen also responded to criticism that he chose to defend Vukmir, a Republican like himself, but not Sen. Jon Erpenbach, when the Democratic lawmaker from Middleton was sued by the conservative MacIver Institute for providing records with redacted personal information.
Van Hollen argued that Vukmir complied with the open records request, while Erpenbach asserted he was not required to "disclose the name of any person who contacted his office about a controversial piece of legislation."
Attorney Susan Crawford, a former assistant attorney general and chief legal counsel to Gov. Jim Doyle, doesn't buy it.
"Sen. Erpenbach won his case in the circuit court," says Crawford, now a partner with Cullen, Weston, Pines & Bach, a frequent legal foe of Gov. Scott Walker's administration. "There clearly was a viable legal defense that the AG was simply unwilling to make for political reasons. And this has become a pattern for this attorney general."
Crawford says attorneys in Van Hollen's office have otherwise dutifully carried out their statutory functions relating to the state's open records and meetings law.
"I think what you're seeing here is when the AG leaves it to his staff of civil servant attorneys to advise and counsel public officials on their obligations under the public records law, they do an excellent job," says Crawford. But, she adds, "It seems clear to me that the AG has gotten involved in this one for political reasons."
Dana Brueck, spokeswoman for Van Hollen, calls that assertion "absurd."
"Attorney Crawford's analysis has no basis in the law and belies the lack of a clear understanding of the facts and the constitution."