Q&As mark next step in House of Correction lawsuit (UPDATE)

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The outcome of a lawsuit over control of the House of Correction in Franklin could depend on Milwaukee County’s responses to written questions from the attorney representing Sheriff David Clarke Jr.

Clarke sued the county in December to prevent it from transferring control of the House of Correction from him to a superintendent. Michael Whitcomb, Clarke’s attorney, has said he must depose a county employee to ask questions about the intent of the budget provision that authorized that transfer.

The county, claiming it has the statutory authority to shift control no matter the intent, has requested summary judgment in the case. A hearing on that motion is scheduled for April 18.

Ron Stadler, an attorney with Milwaukee-based Gonzalez Saggio & Harlan LLP who represents the county, argued last week that the people best suited to answer Whitcomb’s questions about intent are Milwaukee County supervisors, and they are protected by legislative privilege, which prevents legislators from providing depositions about the decisions they make in the legislative process. That protection also extends to the county executive, Stadler said Monday.

Milwaukee County Circuit Judge Paul Van Grunsven last week delayed a decision on Whitcomb’s request. Van Grunsven said he wanted to consider Stadler’s motion for summary judgment.

While still not ruling on that request Monday, Van Grunsven brokered a compromise between the sides. Whitcomb would send a list of questions to Stadler, who would then provide the county’s answers.

Van Grunsven said he is wary of handcuffing Clarke’s attempt to sustain his lawsuit in case the responses to the questions are integral to his response to the motion for summary judgment.

The county’s answers to Whitcomb’s list of questions will help determine whether a deposition is necessary, Van Grunsven said. If it is clear that Whitcomb still must question a county employee to make the case against summary judgment, the judge said the county’s response should clarify who beyond the bounds of legislative privilege could answer those questions.

Whitcomb must submit his written questions to Stadler by March 4, and Stadler must provide those answers by March 13.

While information might come from the supervisors or executive, Stadler said, the county’s response will not fall under legislative privilege. Stadler said he would present the position of the county as a whole, which does not fall under the privilege.

However, he said, if Whitcomb were to depose a single supervisor, for example, that would violate legislative privilege because that supervisor would be giving only his or her opinions.

If the county’s response doesn’t answer all his questions, Whitcomb said, he believes the question of legislative privilege would be moot.

“I find it fanciful to even suggest,” he said after the hearing, “that the only people who have knowledge concerning the 2013 budget are county supervisors.”