August 22, 2010

"In aid of" a jurisdiction yet to be found

The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.
— Wis. Const. art. VII, § 3.
Item: On August 20, the Wisconsin Supreme Court granted the State Government Accountability Board a week's extension in filing its response to the complaint lodged in this action. The GAB's response is now due on August 27. On August 13, the court had ordered an injunction against the GAB preventing it from enforcing an election law rule even though the court has not yet taken jurisdiction of the case, nor will the court decide to do so until at least September 13.

Of some further interest to an arcane but important topic:
[C]ongressional enactment of sections 13 and 14 of the Judiciary Act of 1789, as well as early Supreme Court interpretation of these provisions, strongly suggests that Congress intended the power to issue writs to be "derivative" of jurisdiction previously established.[fn]157. . . .

[fn]157 It also has been argued by Professor Akhil Reed Amar, based on the language of the Judiciary Act of 1789, that section 14 was not intended to be a source of original jurisdiction. Professor Amar points out that sections 14, 15, and 17 of the First Judiciary Act reveal a distinction between the word "power" and "jurisdiction." Thus, in section 14, federal courts have the "power" to issue writs which may be necessary for the exercise of their respective "jurisdictions." Parsing the Act’s text in this manner, Professor Amar concludes "it is clear from context that the Act is investing courts with certain authority if and when they have independently founded jurisdiction. . . . 'Jurisdiction' must be established first, and independently; 'power' then follows, derivatively."
— Lonny Sheinkopf Hoffman, Removal Jurisdiction and the All Writs Act, 148 U. Penn. L. Rev. 401, 436-37 (citations omitted).

Much as I was suggesting.

Federal removal jurisdiction — whereby federal courts might assume jurisdiction over cases initiated in State courts — is a separate matter again, obviously, but I have always understood conservative judges to claim as a central component of their adjudicative methods the tracing of constitutional language to "original intent" and common law origins. At least, that's their election campaign promise.

Justice Prosser (together with Gableman) undertook to explain that a majority of the court had found a type of jurisdiction not enumerated in the Wisconsin constitution — subject matter jurisdiction — but they didn't argue the point very convincingly. I wonder whether the Government Accountability Board will raise the issue. It should.


Pyrrho said...

I'm not really sure it's fair to criticize the conservative justices as failing to trace the constitutional language to "original intent" and "common law origin" because they did not follow federal law on the issue. After all, the Wisconsin Constitution's treatment of jurisdiction is not even remotely similar to the U.S. Constitution. It is well-established that circuit courts in Wisconsin are "never without subject matter jurisdiction." Village of Trempeleau v. Mikrut, 2004 WI 79, 273 Wis. 2d 76. So what Professor Hoffman is talking about here - which pertains to Congress's control of federal court jurisdiction - really has no analog in Wisconsin, where the constitution's grant of judicial authority is much broader.

illusory tenant said...

Thanks for reading. I don't question whether circuit courts are never without subject matter jurisdiction. But the constitution's grant of original jurisdiction to the Supreme Court doesn't necessarily subsume the jurisdictions of the circuit courts. If it did, Justice Prosser could have just as easily disposed of the matter by saying so.

I cited Hoffman in aid of (so to speak) establishing the contention that the term "in aid of jurisdiction" refers to jurisdiction already found. That is the construction I would expect from a self-advertised conservative judge.

What do you think of the fact that Justices Prosser and Gableman actually had to change the words of the Wisconsin constitution in justification of their issuing the writ?