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Wisconsin Capitol Police have declined to investigate the leak of a Supreme Court abortion ruling in June, citing a conflict of interest, but the court’s chief justice told the Associated Press she is exploring other options.
Chief Justice Annette Ziegler told AP by email Thursday that she “continues to pursue other means to get to the bottom of this leak.” She did not respond to messages last week and on Monday asking what those other means were. Other justices also did not respond to requests for comment Monday.
Ziegler called for the investigation on June 26 after a draft order was leaked indicating that the court would take a case brought by Planned Parenthood seeking to declare abortion access a right protected by the state constitution. A week after the leak, the court issued the order to take the case.
The draft order, which was not a decision on the case itself, was provided to the online news channel Wisconsin Watch.
Ziegler said in June that all seven of the court’s justices – four liberals and three conservatives – “are united behind this investigation to identify the source of the apparent leak. The seven of us condemn this violation.”
Ziegler told the AP last week that the justices had asked the State Capitol Police to investigate the leak. The department is responsible for security in state office buildings, including the Capitol, where the Supreme Court’s offices and hearing room are located. The police are part of the administration of Democratic Gov. Tony Evers.
This has created a “clear conflict of interest” because the governor “has significant concerns about the outcomes of the court decisions and is also named as a party in several cases currently pending before the Wisconsin Supreme Court,” said Britt Cudaback, spokeswoman for Evers’ administration.
Evers is not a party to the case that leaked the order, but has been outspoken in support of legalizing abortion in Wisconsin.
Cudaback said the Capitol Police had a conflict of interest because any investigation “would almost certainly require a review of internal procedures, confidential correspondence, and nonpublic court documents and deliberations on a range of matters involving our government or that could be affected by the court’s decision.”
However, Cudaback said Evers’ administration agrees that there must be a thorough investigation, “and we remain hopeful that the Wisconsin Supreme Court will make such efforts.”
Ziegler pointed out that, unlike the U.S. Supreme Court, the State Supreme Court does not have an independent law enforcement agency that can conduct investigations.
Investigations into the internal workings of the Wisconsin Supreme Court are rare and difficult.
When Judge Ann Walsh Bradley accused then-Judge David Prosser of choking her in 2011, the Dane County Sheriff’s Department led the investigation. That agency took over the investigation after the then-chief of the Capitol Police said he had a conflict of interest. But Republicans accused the sheriff of having a conflict of interest because he was a Democrat who supported Bradley.
The Sauk County District Attorney served as special prosecutor in the case and declined to file charges.
The ruling, leaked in June, was one of two abortion-related cases before the court. The court has also accepted a second case challenging the 1849 abortion ban on the grounds that it is too old to be enforced and is being overtaken by a 1985 law that allows abortions up to the point that a fetus can survive outside the womb.
Oral hearings in both cases are expected this fall.
