July 15, 2011

An extraordinary writ is a supervisory remedy

Affirmed the Wisconsin Supreme Court, yesterday:
A supervisory writ is an extraordinary remedy to prevent a court from refusing to perform, or from violating, its plain duty.
So, is that what Dane County Circuit Judge Maryann Sumi did?

No, of course not. Which is apparently why the same Wisconsin Supreme Court, by a majority composed of the same four conservative justices who just one month ago needed to invent a novel form of judicial authority, which it dubbed "supervisory/original jurisdiction," to avoid precisely the requirement the Wisconsin Supreme Court now affirms.

The court elaborates:
[A] petition for a supervisory writ will not be issued unless the duty of the circuit court is plain [and the circuit court's] refusal to act within the line of such duty or its intent to act in violation of such duty is clear.
I'm paraphrasing. Yesterday's majority supplies the underlining.

Not only did the Supreme Court, in Huebsch v. Dane County Circuit Court, fail to describe either what Judge Sumi's plain duty was or how exactly she refused it or intended to violate it — and yesterday the Supreme Court confirmed that a supervisory court must do both — in fact neither the term "plain" nor the term "duty" even appear in the court's June 14 order in the context of Judge Sumi's deliberations.

Thus may one puzzle as to how the Supreme Court might issue a supervisory writ without even addressing the criteria by which it exercises its authority to issue a supervisory writ, let alone explaining it.

Simple: Invent a novel source of judicial authority, what any self-respecting conservative jurisprude would do, of course. For we are assured they are conservatives, even by those judges themselves.

Granted, they are conservative Republicans. But conservative in the sense of the oft-invoked and sacred canons of "judicial restraint"? Considerably less so, expediency permitting. Indeed if anyone was carefully mindful of conservative principles of restraint, it was Sumi.

And, more remarkably, yesterday the court clarified that "a supervisory writ is dedicated to the discretion of the court of original jurisdiction."

That's ambiguous, but what it means is the supervisory writ is aimed at the discretion of the court of original jurisdiction. That is, it's the discretion of the court of original jurisdiction, and the alleged abuse of that discretion, which a supervisory writ is dedicated to supervising.

And in Huebsch, the court of original jurisdiction was the one named in Huebsch's petition, the one presided over by Dane County Judge Sumi. That's what original jurisdiction means: the first court to hear the case.

In fact the Supreme Court was the third court to have been presented the case, the second being the District IV Court of Appeals, which passed the Department of Justice's previous motion for permission to appeal on to the Supreme Court.* So how in the world could the Supreme Court exercise any claimed definition of original jurisdiction over this case?

Again, piece of cake: Slap together with some punctuation the court's supervisory authority and its power to hear cases in original jurisdiction.

The Wisconsin constitution empowers the Supreme Court with four separate avenues of authority: superintending (a.k.a. supervisory), administrative (which is not at issue in Huebsch v. Dane County), appellate jurisdiction (the Huebsch Court dismissed the DOJ's petition to exercise its appellate jurisdiction), and original jurisdiction. Original jurisdiction was off the table in March. As Justice Crooks flatly stated, "No petition for original jurisdiction ... was filed in this court by any party. . . . There is nothing 'original' or 'in the first instance' here."

The Department of Justice clearly understood this, as is evident from the entire procedural history of this case, and from all of the DOJ's paper filings. The Supreme Court maneuvered the DOJ into position to act as the Supreme Court's proxy in order to achieve the result that a majority of the Supreme Court sought. There is no other explanation.

There's certainly no other satisfactory explanation. Take a look at this bland assertion made by the Huebsch v. Dane County majority:
¶5 IT IS FURTHER ORDERED that the petition for original jurisdiction in Case No. 2011AP765-W is granted, State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983), and all motions to dismiss and for supplemental briefing are denied.
Case No. 2011AP765-W is a petition for supervisory writ, and not a petition for original jurisdiction. On the other hand, La Follette v. Stitt was a petition for original jurisdiction. The Huebsch majority does not tell us where exactly to look in La Follette v. Stitt to support its rationale; it merely cites the entire case. But presumably, it means this:
We granted the petition to commence an original action because this matter is publici juris and requires a prompt and authoritative determination by this court in the first instance.
However the (judge-made) doctrine of publici juris** is invoked in Stitt to justify the granting of La Follette's petition to the Supreme Court to accept original jurisdiction over his case. Indeed, Stitt itself cites to this prior caselaw: "If the matter is publici juris, this court may elect to take original jurisdiction if asked to do so." This underlining added.

Which the Huebsch Court wasn't asked. Its ¶5 is pure magical fiat.

Any conservative could tell you that.

Footnote footnote: Yesterday's footnote 6 is also pretty cute. It reads, "Wisconsin Stat. § 809.51 is the appellate rule that governs petitions for a '[s]upervisory writ and original jurisdiction to issue prerogative writ.'"

This is true as far as it goes but the fact of the matter is, Wis. Stat. § 809.51 also distinguishes between supervisory and original jurisdiction, presenting as it does a choice to prospective petitioners as to whether they will proceed in accordance with one or the other form of authority.

But the distinction is not so much germane to Huebsch, where the majority conjured a petition for an original action from a petition for a supervisory writ, and Huebsch doesn't get to § 809.51 except by way of § 809.71, which is the Supreme Court rule exclusive to its supervisory jurisdiction. While § 809.51 presents both options, the presence of two separate statutory provisions, § 809.71 and § 809.70, reinforces the contention that "supervisory/original jurisdiction" makes as much sense as "disorderly/theft" or "sexual assault of a/moveable property."***

On the other hand, the Supreme Court helpfully disabuses the absurdist notion that the only court referred to in Wis. Stat. § 809.51 is the court of appeals, a notion published in apparent seriousness on, of all places, the front page of the Marquette University Law School's faculty blog.

* And which the Supreme Court dismissed on June 14 — unanimously.

** Publici juris simply means "public right." The public also retains a couple of more fundamental rights: the right to draft constitutions and enact rules that define and delineate the powers of the courts and the right to not draft constitutions and not enact rules which authorize courts to combine those powers into new, judicially manufactured ones.

*** Notwithstanding Lt. Gov. Rebecca Kleefisch's table/marriages.

23 comments:

Cindy K. said...

Looky! Now you are pretending to be a Supreme Court Justice, too.

Gosh you are talented.

illusory tenant said...

pretending to be a Supreme Court Justice, too.

I certainly hope you're not implying a Supreme Court justice is pretending to be a Supreme Court justice.

Mike said...

Congratulations to Cindy K. on pointing out the errors in Illusory Tenant's reasoning.

illusory tenant said...

Just like every cowboy sings his sad, sad song
Every blog has its troll

CJ said...

Honestly, it sounds like they really don't know what they're doing and they're making up nebulous, fluffy stuff that can be interpreted any way the want as long as they have a majority consensus.

Maybe they DO know what they're doing after all....

illusory tenant said...

They know what they're doing but their method violates first principles conservatives otherwise pledge their undying allegiance to.

illusory tenant said...

They're making up nebulous, fluffy stuff that can be interpreted any way they want as long as they have a majority consensus.

Which is effectively what the Chief Justice said.

gnarlytrombone said...

Now, we're not ones to go 'round spreadin' rumors.

Cindy K./Misty Rowe spreadin' the love/hate.

Anonymous said...

On 06-02-2011 the Court (without noted dissent) ordered the parties to address "whether this courts exercise of original jurisdiction may include the appellate power to review a circuit court judgment absent the filing of an appeal." The parties did so, and the Court was asked to exercise original jurisdiction.

That pretty much lays waste to your argument.

gnarlytrombone said...

the Court was asked to exercise original jurisdiction

By whom?

illusory tenant said...

Just as I said: The Supreme Court maneuvered the DOJ into position to act as the Supreme Court's proxy in order to achieve the result that a majority of the Supreme Court sought.

Justice Crooks addresses the court's intermingling of original and appellate jurisdiction. I am addressing its intermingling of supervisory and original jurisdiction, which is what the June 14 order explicitly says the majority is doing.

According to the majority's apparent rationale, anything might be considered a matter for original jurisdiction simply because a party -- in this case Huebsch, who wasn't a party to any of it in the months preceding -- raised some issue not directly addressed by the actual court of original jurisdiction.

illusory tenant said...

"The court was asked to exercise original jurisdiction."

By whom?

The court.

Anonymous said...

Incorrect. The Court ordered (without noted dissent) the parties to brief that question. The parties could have said "no, thanks. We are cool with our initial request and we do not plan to modify it." But that did not happen. When ordered to brief the issue, one of the parties argued for the court exercising original jurisdiction. The Court did. You may think that they shouldn't have, but the procedure was properly followed.

Courts ask parties all the time to brief additional issues or to address whether their petition for A should be treated as a petition for B.

illusory tenant said...

Courts ask parties all the time to brief additional issues or to address whether their petition for A should be treated as a petition for B.

Certainly, but those additional briefings do not transform the case into an original action.

Anonymous said...

If additional briefings ask for that transformation (especially in light of new developments) I don't see why not.

No one is seriously disputing that the case could have been filed from the start as a petition for either a supervisory or original writ (pleading in the alternative). There is no reason why that alternative request cannot be added later on.

gnarlytrombone said...

one of the parties argued for the court exercising original jurisdiction

Here's what St. John said: "This court may exercise it's original jurisdiction through any number of manners, including a supervisory writ."

Back down the rabbit hole.

illusory tenant said...

There is no reason why that alternative request cannot be added later on.

But where in the constitution or the statutes or the rules (or even the case law) might it be both (i.e., "supervisory/original")? That's what I don't find, or see anywhere near adequately explained in either the 15 paragraphs of "order" or in Justice Prosser's "additional analysis."

Anonymous said...

The fact that a lawyer may have spoken inartfully during oral arguments, or even the fact that the lawyer is just downright terrible and simply misstates the law is not particularly relevant. The question is was the Court asked to exercise original jurisdiction? The answer is that yes it was. Your argument to the contrary is lacking in factual basis.

illusory tenant said...

"This court may exercise its original jurisdiction through any number of manners, including a supervisory writ."

This sort of argument ignores the State's fundamental constitutional and statutory framework and renders the very idea of original jurisdiction as without meaning. Mr. St. John also referred to Judge Sumi's most recent order as both a final judgment and not a final judgment during the same presentation to the Supreme Court so I don't know that I'd trust him to legislate from -- or through, in this case -- the bench.

gnarlytrombone said...

was the Court asked to exercise original jurisdiction

So what are we talking about here? Did St. John ask to amend his petition? Or did he ask/suggest the court take a particular tack?

illusory tenant said...

The question is was the Court asked to exercise original jurisdiction? The answer is that yes it was.

But the court wasn't asked to exercise original jurisdiction until the court itself asked Huebsch, 'Why don't you ask us if we'd like to exercise original jurisdiction?' and Huebsch said, 'Sure! Whatever works.' So it was not so much a request by Huebsch as it was an affirmation by Huebsch of the court's constructively requesting itself to exercise original jurisdiction (and then calling it "supervisory/original jurisdiction" but subsequently failing to justify the very requirements for the granting of a supervisory writ it reaffirmed in its MMSD opinion yesterday).

illusory tenant said...

And Anon, come on. That forward slash has got to trouble you.

John Foust said...

You know, some girls cannot tell a lie. Some girls cannot tell the truth. You girls cannot tell the difference.

It's too bad the Snowman didn't add "Some girls think because they have an opinion, it's just as valid as any other." Because that might apply in this Kilkenny case.