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.