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State Senator tries to sidestep open records suit

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By Patrick Marley and Jason Stein/Milwaukee Journal Sentinel
September 13, 2013

Madison — State Sen. Leah Vukmir is trying to sidestep an open records lawsuit by claiming she can't be sued while in office — a legal argument that, if successful, would let all lawmakers ignore the open records law.

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. ALEC works with corporations and conservatives to write model legislation that can be introduced in state legislatures throughout the country.

On Wednesday, Vukmir filed a motion in Dane County Circuit Court arguing she is immune from lawsuit while she remains in office. The motion was filed on her behalf by Republican Attorney General J.B. Van Hollen's Department of Justice.

The position Vukmir and Van Hollen are taking differs sharply from those taken by other lawmakers who have been sued in recent years under the open records law. In those cases, legislators from both parties have either acknowledged they violated the records law and turned over documents or fought the cases in court.

"It's pretty shocking," said Brendan Fischer, general counsel for the center that brought the suit.

"Open records are a basic part of their legislative duties," he said. "To not be able to hold them to account has the potential to undermine the law, clean government and citizens' trust in government."

Vukmir declined comment through an aide. Steven Means, Van Hollen's executive assistant, declined to comment on the specifics of the case but said the state constitution is clear on legislative immunity.

The state constitution says lawmakers are not "subject to any civil process during the session of the Legislature." Vukmir contends in her motion that the current legislative session lasts the entire term of a state representative — meaning legislators could be in session from the moment they are first sworn in until they leave office, perhaps many years later.

Susan Crawford, a Madison attorney who has served as an assistant attorney general and chief counsel to former Democratic Gov. Jim Doyle, said she had never seen the Department of Justice raise such a defense. She said the immunity provision is in the constitution to protect the public from losing its voice in the Legislature because of legal proceedings, not to help legislators avoid complying with laws.

"I think the attorney general's position is a radical misinterpretation of that provision" of the constitution, Crawford said.

"I've never heard a legislator asserting they're above the law, which is what she's doing. You have to wonder what she's trying to hide."

Vukmir's argument that she is immune from lawsuit resulted in a bizarre match of cat and mouse in the Capitol.

According to affidavits in the lawsuit and an interview with Vukmir aide Jason Rostan, process server Bruce Lowrey tried on Aug. 30 and Sept. 3 to serve Vukmir at her office. On the second visit to her office, Lowrey left the papers with Rostan.

Lowrey left the office and was followed by Rostan, who attempted to push the papers back at Lowrey. Both men claim the other swore at them. In the squabbling, Lowrey fell down, with Lowrey claiming he was pushed by Rostan and Rostan claiming Lowrey tripped while backing away.

Chris Lowrey, Bruce's wife and the head of their Madison business, came back to the office to serve Vukmir and had another dispute with Rostan over whether she could serve the senator by giving him the papers. Emphasizing that she was a registered Republican who was simply acting on behalf of a client, Lowrey said she's served other politicians and never had their aides behave in such an "embarrassing" way.

Rostan said he was following the instruction of the Department of Justice and denied doing anything inappropriate. He blamed the servers for the incidents.

Vukmir's response to the lawsuit is at odds with how five of her Republican colleagues reacted when sued last year by the same center for ALEC records. In October, those five legislators quickly settled their cases by turning over records they had been withholding.

The center is demanding that Vukmir turn over records related to her May visit to an ALEC task force meeting in Oklahoma City.

ALEC has come under scrutiny in recent years over its support for proposals such as voter ID laws and "stand-your-ground" gun laws, and some corporations have parted with ALEC because of the controversy.



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