Ex-Wisconsin Supreme Court justice fights subpoena over Protasiewicz impeachment advice

A former Wisconsin Supreme Court justice is fighting a subpoena ordering her to appear in court in a lawsuit related to advice she gave about possible impeachment of a current liberal justice, calling it "unreasonable and oppressive."

Republican lawmakers have threatened possible impeachment of current Justice Janet Protasiewicz related to comments she made during the campaign calling GOP-drawn legislative maps "rigged" and "unfair." She joined with the liberal majority of the court in agreeing to hear a lawsuit supported by Democrats that seeks to overturn the GOP maps and enact new ones.

Wisconsin Republican Assembly Speaker Robin Vos asked three former conservative Supreme Court justices for advice on impeachment. Two of the three told him that impeaching Protasiewicz was not warranted. The third, former Chief Justice Patience Roggensack, has not said what her advice was and Vos has repeatedly refused to disclose it.

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The liberal watchdog group American Oversight filed a lawsuit alleging that the three former justices researching impeachment for Vos had violated both the state open meetings and open records laws. American Oversight wants the judge to order the former justices to meet in public and to release records related to their work. It was also seeking attorneys fees.

Last week, Roggensack received a subpoena compelling her to attend a hearing in the case was scheduled for this Thursday. On Monday, she asked to be released from the subpoena.

"I believe it would be unreasonable and oppressive to require me to appear at a hearing on a motion for preliminary injunction and even for the Court to consider such a motion," Roggensack wrote.

The judge scheduled another hearing for Wednesday afternoon, likely to address Roggensack's request.

Roggensack, in her affidavit with the court, said the order being sought, which included requiring the former justices to meet in public, would impair her First Amendment rights of freedom of expression, peaceably assembling and petitioning the government.

Roggensack said that Vos, the Republican legislator, asked for her advice on impeachment. Roggensack said she told him she had been researching the issue on her own "because I found the topic to be interesting and because I had not previously considered the standards for impeachment of a Supreme Court justice."

Roggensack said she never considered Vos’s request to mean she was becoming part of a governmental body or committee as American Oversight alleged in its lawsuit.

Vos himself called the effort a panel when he announced in September that he was seeking their advice.

Roggensack said she had a lunch with the other two former justices, David Prosser and Jon Wilcox, along with Vos’s attorney. Prosser and Wilcox have also said that was the only meeting the three former justices had. They all said that they separately advised Vos and did not collaborate on their advice.

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American Oversight filed open records requests with the former justices. Prosser released the email he sent Vos that included his impeachment advice, as well as voicemail messages from Roggensack and text messages they exchanged.

Neither Wilcox, Roggensack, nor Vos’ office have responded to its requests for records, American Oversight said.

Vos originally said he was considering impeachment if Protasiewicz did not recuse herself from the redistricting case. She didn’t recuse. Vos didn't move to impeach her, following the advice against impeachment from the former justices. But now he's suggesting he may attempt to impeach her if she does not rule in favor of upholding the current Republican maps.

The Wisconsin Constitution reserves impeachment for "corrupt conduct in office, or for crimes and misdemeanors."