Conservative law firm files lawsuit against Madison’s Police Civilian Oversight Board

MADISON, Wis. — A conservative law firm is suing the City of Madison over its Police Civilian Oversight Board, saying the board’s racial diversity quotas are unconstitutional.

In September 2020, the Madison Common Council voted to create a civilian oversight board responsible for conducting police assessments and making recommendations about police use-of-force protocols. Four of the 11 members were required to belong to the following racial groups: African-American, Asian, Latinx and Native American. The Common Council also voted to require 50% of the board’s members be Black.

The Wisconsin Institute of Law and Liberty is representing Madison resident David Blaska who said he was rejected from serving on the board because he is white.

“That disqualified me from the getgo,” Blaska said. “If we have to have this board I would hope there would be more inclusiveness.”
The Police Civilian Oversight Board has two white members currently serving but Blaska said having a racial requirement as to who can serve on certain seats is “un-American.”

The law firm is filing the federal lawsuit on Wednesday in the Western District of Wisconsin, just over six months after filing a Notice of Claim against the city, warning a lawsuit would come if it didn’t change its policy requiring the oversight board to meet certain racial diversity requirements.

“The City of Madison was warned that imposing racial quotas is unconstitutional,” WILL President and General Counsel Rick Esenberg, said. “The return of race classifications and quotas is a troubling and dangerous step backwards.”

Madison City Attorney Michael Haas disagreed.

“I believe the City Council’s action was legal and was constitutional,” Haas said. “This is not simply to help communities of color, although that’s an important goal. It’s to help our police department, our government, our society in general, we want to be able to hear all voices and give everyone an opportunity to contribute.”
Haas said the point of the board’s creation was to bring historically marginalized voices to the table to help improve policing practices.
“It’s important we hear from those individuals and that they have an opportunity to participate in the board,” Haas said.
Esenberg said regardless of the history or policing practices, the requirements are unconstitutional.
“The problem is that Madison is reserving certain seats for members of various racial groups. That type of explicit racial preference and quota is unconstitutional,” Esenberg said. “There are all sorts of ways that Madison could decide to compose its police oversight review board. They could do it based upon where someone lives in a city. It can do it based upon various types of election. What it can’t do is it can’t take a public office and then make it available to people based on the color of their skin.”

The lawsuit asks that the racial diversity quotas be ruled unconstitutional and that the board be reformed without any diversity requirements.

WILL, which is based in Milwaukee, is the same law firm behind lawsuits targeting absentee ballot drop boxes, Dane County’s coronavirus restrictions and the state’s former mask mandate.

“WILL is developing quite a track record of cases,” Madison Mayor Satya Rhodes-Conway said. “They are against common-sense public health measures, like shutting schools when a highly contagious disease hits; they want to rip out our ballot drop boxes because they don’t like the candidates our voters are casting their ballots for; they want tear down the Civilian Oversight Board because they don’t recognize the expertise that over-policed communities bring to a conversation about over-policing.​”