[Wis. Stat. Sec.] 165.25(1) [The department of justice shall] appear for the state and prosecute or defend all actions and proceedings, civil or criminal, in the court of appeals and the supreme court, in which the state is interested or a party, and attend to and prosecute or defend all civil cases sent or remanded to any circuit court in which the state is a party.Here's another interesting and thus far overlooked tidbit from last Monday's marathon session of the Wisconsin Supreme Court, wherein Deputy Attorney General Kevin St. John concedes directly to the Chief Justice that the Department of Justice is appearing not on behalf of Secretary of Capitol Building Maintenance Mike Huebsch, but on the explicit direction of the governor, Scott Walker. And what Walker is complaining about is, ironically, a separation of powers violation.
165.25(1m) If requested by the governor or either house of the legislature, appear for and represent the state, any state department, agency, official, employee or agent, whether required to appear as a party or witness in any civil or criminal matter, and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or the people of this state may be interested.
During St. John's oral presentation, the Chief Justice is engaging the lawyer on some procedural posturings. Recall that while the hearings were underway in Dane County Circuit Judge Maryann Sumi's court in Ozanne v. Fitzgerald, Judge Sumi issued a temporary restraining order. A TRO is not a "final judgment" and the difference between a TRO and a final judgment is determinative of how Scott Fitzgerald and the other defendants may attack a judge's disposition, be it final or temporary.
In Wisconsin there exists a right to appeal final judgments, but if the defendant Republican legislators here wish to attack the TRO, they must be granted permission to do so by the court of appeals. Thus did the Department of Justice file a motion for permission to appeal a non-final order (the TRO) on March 21 with the District IV Court of Appeals.
The court of appeals declined to entertain that motion, but rather certified ("passed on," or "kicked upstairs," in the vernacular) the DOJ's petition to the Supreme Court. The Supreme Court announced nothing further with regard to that petition until June 3, when it issued an order consolidating it with the DOJ's petition for a supervisory writ, as in the interim between scheduling oral arguments on whether to entertain the supervisory writ, Judge Sumi did indeed issue a final judgment.
So the Chief Justice is wondering about from whence comes the DOJ's authority to bring the petition for a supervisory writ (a writ is a court order, and in this case the DOJ is seeking an order vacating Judge Sumi's disposition based on the Supreme Court's supervisory authority over the circuit courts). The petition for a supervisory writ was filed in the name of Mike Huebsch, but what the record transcribed below reveals is that the order came directly from Governor Walker himself, something Mr. St. John appears to be distinctly uncomfortable with admitting.
The exchange between the Chief Justice and the deputy AG, related to the foregoing issues of who gets to do what and when begins at 00:43:10 of Wisconsin Eye's video of the oral arguments and the CJ gets to the Walker's Point at 00:45:10. The ellipses are pauses, not edits.
CJA: Under what authority does the State bring this proceeding?He goes on. But he's already admitted to the Chief Justice, who is more interested in the express language of the State statutes, that in this case what he's relying on is a request from the governor, Scott Walker.
KSJ: The State brings this proceeding under [Wis. Stat. Sec. 165.25(1)(m) — see above].
CJA: 165 ... yes.
KSJ: 165.25, sub. 1m.
CJA: Point 25, one ...
CJA: What does that say, counsel?
KSJ: That provides, that says that the attorney general and I ... quote the statute [KSJ retrieves Volume 3 of the Wisconsin Statutes and Annotations] ...
CJA: 165 ... 25 ...
KSJ: It needs to be read in conjunction with sub. 1, but 1m provides that if requested by the governor or either house of the legislature ...
KSJ: ... may ...
CJA: Did the governor make any request?
CJA: Is that on record?
KSJ: It's not part of the record for petition [for a supervisory writ]. The State appears in many actions at the request of the governor or on the legislature and wouldn't file that with the court. We'd be happy to do so if that were required.
CJA: Therefore, and represent the State. Okay, the court will take that under advisement. Is that what you're relying on, 'If requested by the governor, appear for and represent the State'?
KSJ: Mm hmm. In any matter in which the State or the people of this State may be interested. There's been a determination made ...
CJA: Oh wait, what about the sentence, "whether required to appear as a party or witness"? That clause.
KSJ: Mm hmm. In any ...
CJA: Well ...
KSJ: And prosecute or defend ...
CJA: Are you required to appear here as a party? Here?
KSJ: Uh, there's no requirement ...
CJA: Okay. So you're going on to, "and prosecute in any court," right?
KSJ: That's correct.
CJA: "In which the State or the people may be interested."
KSJ: That's correct.
CJA: Okay. This is one of the things that is ... and on page four of your Ozanne you rely on 165.25, but there you say only that the AG decides whether what's the best interest of the State so now you're relying on the governor, is that it?
KSJ: There is authority in this case from the governor, there is also authority in this court's precedent that says that the attorney general may appear before this court with or without the governor's approval to advance an interest of the State.
So you have Republican Scott Walker, the chief executive branch officer, petitioning the Republican-controlled Supreme Court,* the top entity within the judicial branch, to in effect discipline a lower court because it ruled against his Republican pals and allies in the legislative branch. And what Walker is complaining about ultimately is a violation of the doctrine of constitutional separation of powers. That is one not-too-subtle irony.
Deputy AG St. John's pursed "mm hmms" indicate he was none too comfortable with the Chief Justice's line of inquiry. Witnesses at trial who answer "mm hmm" rather than "yes" are often admonished by the court for not speaking up clearly and affirmatively. I wonder why St. John was so reticent at providing this information, that the Department of Justice is acting on the direct order of Governor Scott Walker.
Because the named petitioner clearly has no idea what's going on.
Since Monday a slew of additional documents were filed with the State Supreme Court, but this space doesn't know whether Walker's directive to the DOJ is among them. It may well be quite an edifying read.
* Let's dispense with the "nonpartisan" façade for a moment. Everybody knows how many millions of dollars (and thousands of logically fallacious and unethical teevee ads) Republican-affiliated outfits have produced and spent to ensure and protect the current make-up of the court.