Cross posted from Open Records Blog

In the case of Lautenschlager v. Gunderson, a Wisconsin appeals court has dismissed an appeal by Peg Lautenschlager of a lower court ruling. The lower court said that under Wisconsin’s sunshine laws, legislators are allowed to share drafts of legislation with lobbyists, while still being able to withhold drafts from the public.

The appeals court dismissal does not speak to the underlying merits of the lower court ruling. Instead, it dismisses the appeal because it was brought by Lautenschlager as a private citizen, when the original lawsuit was filed by the Wisconsin attorney general’s office during her tenure as head of that office. She no longer holds the office, and the current occupant of the office elected not to appeal the lower court ruling.

Thus, the lower court ruling stands. One interesting aspect of it is the claim by the judge that Wisconsin courts should not interfere with how state legislators draft legislation because that’s a core legislative function. This is a separation of powers argument.

Apparently in Wisconsin the separation of powers guarantees lobbyists access to draft legislation but keeps the public away.  It’s great to know that PublicMarkUp, a transparency bill drafted to be open to everyone, is illegal in Wisconsin.  I pretty sure this is not what our founders had in mind when they wrote about checks and balances.