MADISON, Wis. — Wisconsin Capitol Police have decided not to investigate the leak of a June Supreme Court abortion order, citing a conflict of interest. But the court’s chief justice told The Associated Press she is considering other options.
Chief Justice Annette Ziegler told the AP via 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 Monday asking what those other means were. Other justices also did not respond to a request for comment Monday.
Ziegler called for investigation on June 26 after a draft order was leaked showing the court had ordered a lawsuit filed by Planned Parenthood who wants to declare access to abortion a right protected by the state constitution. A week after the leak, the the court issued the order take the case.
The draft decision, which was not a ruling in the case itself, was obtained by the online news outlet Wisconsin Watch.
Ziegler said in June that all seven justices on the court — four liberals and three conservatives — “were united behind this investigation to identify the source of the apparent leak. The seven of us condemn this breach.”
Ziegler told the AP last week that the justices had asked the State Capitol Police to investigate the breach. The department is responsible for security at state buildings, including the Capitol, where the Supreme Court offices and hearing chambers are located. The police are part of the administration of Democratic Gov. Tony Evers.
That created a “clear conflict” given the governor’s “significant concerns about the outcome of the court’s decisions, in addition to the fact that he is named as a party in several cases currently pending before the Wisconsin Supreme Court,” said Britt Cudaback, a spokesperson for Evers’ administration.
Evers is not a party to the case in which the order was leaked, but he has spoken out in favor of legalizing abortions in Wisconsin.
Cudaback said the Capitol Police were conflicted because any investigation “will almost certainly require a review of internal operations, confidential correspondence and nonpublic court documents, and deliberations regarding a number of matters in which our government is a party or may be affected by the court’s decision.”
However, Cudaback said the Evers administration agreed there should be a thorough investigation, “and we remain hopeful that the Wisconsin Supreme Court will attempt to do that.”
Ziegler noted 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 inner workings of the Wisconsin Supreme Court are rare and fraught.
In 2011, Judge Ann Walsh Bradley accused then-Judge David Prosser of strangle herthe Dane County Sheriff’s Department led the investigation. That agency took over the investigation after the Capitol Police chief at the time said he had a conflict. But Republicans accused the sheriff of having a conflict because he was a Democrat who supported Bradley.
The Sauk County District Attorney served as special prosecutor in that case and refused to press charges.
The leaked order in June came in one of two abortion-related cases before the court. The court also accepted a second case that the abortion ban of 1849 because they are too old to enforce and are being overturned by a 1985 law that allows abortions until a fetus can survive outside the womb.
Oral arguments in both cases are expected this fall.