'I'm frankly amazed': Another judge orders Republicans to prevent destruction of records in Gableman election review
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MADISON – A second judge Wednesday ordered Wisconsin Republicans to prevent the destruction of public records as they review the 2020 election at taxpayer expense.
Dane County Circuit Judge Valerie Bailey-Rihn said she was compelled to issue the order but was astonished she had to do it because the review is being overseen by former state Supreme Court Justice Michael Gableman.
"I'm frankly amazed that I have to say don't destroy records that are subject to an open records request or order that to occur. I think all of us know what the law is," Bailey-Rihn said at the end of a 30-minute hearing.
She said as a former justice Gableman should know what the records law requires and has an ethical obligation to follow it. Gableman has contended he is exempt from retaining records because the lawmakers who hired him are not required to hold onto records under state law.
Bailey-Rihn issued her order two weeks after Dane County Circuit Judge Frank Remington issued a similar order in another open records lawsuit. Those two lawsuits and a third one were brought by American Oversight, a liberal group that has been tracking the Assembly review of the presidential election.
A month ago, Bailey-Rihn found Assembly Speaker Robin Vos of Rochester in contempt of court for failing to release records about the election review. She will determine later whether Vos has now met his obligations and whether he should be fined.
Joe Biden beat Donald Trump by about 21,000 votes in Wisconsin. Recounts and courts upheld the results, but Assembly Republicans said they wanted more review and gave Gableman a $676,000 budget to look into it.
More: Gableman accuses two judges of dragging out cases over the Republican election review
Gableman has said Republican lawmakers should strongly consider rescinding the state's 10 electoral votes for Biden, a move that scholars and attorneys — including Gableman's own lawyer, James Bopp Jr. — have said is legally impossible.
During Wednesday's hearing, Bailey-Rihn repeatedly said she could not believe she had to issue her order on public records, saying she was "astounded" that she would have to take such a step to ensure a former justice was following the law.
Attorneys for the Legislature told Gableman in October he was required to hang onto records, but Gableman made his own determination that he did not have to do so.
Ronald Stadler, an attorney for the Assembly, said Wednesday he could tell Gableman not to delete records but contended he had no way to prevent him from doing so even though Vos and Assembly Chief Clerk Ted Blazel determine whether and when to pay Gableman.
"An order from this court simply telling me to tell somebody to comply with the law is a non-event," Stadler told the judge.
Bailey-Rihn reacted skeptically.
"I just can't believe the explanation is we can't control our contractors. That just doesn't seem to be satisfactory to the court since the contractors work for the Assembly," she said.
She said Vos, Blazel and the Assembly as an institution had an obligation to make sure Gableman hung onto records that were created over three months in the summer and all of 2021.
"Their contractors are their agents," she said. "They're under their control. So if those records get destroyed, I'm not holding the contractors in contempt. I'm holding the people that are in control of those contractors in contempt because they are the ones that are responsible for the public records for that three-month period."
Christa Westerberg, an attorney for American Oversight, said she is worried that records are being destroyed because Gableman has not turned over some documents the group has requested.
American Oversight recently received records from Arizona showing Gableman emailed Arizona Senate President Karen Fann in August about how a partisan review of the election in her state was being conducted.
Gableman should have provided a copy of that record to American Oversight but has not, Westerberg said.
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Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.
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This article originally appeared on Milwaukee Journal Sentinel: Judge orders Wisconsin Republicans to retain election review records
