August 20, 2010

Wisconsin's conservative activist justices

Concludes Wisconsin Supreme Court Justice David Prosser:
[T]he court clearly has jurisdiction to take all actions necessary to consider whether to exercise its original jurisdiction over the substance of the matter. Wis. Const. Art. VII, § 3 (may hear original actions and proceedings) ...
Emphasis added.

What the Wisconsin constitution says is:
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.
An original action is one filed directly to the Supreme Court. Original actions are exceptional to the Supreme Court's primary constitutional roles as a court of appeals and as the superintendent of lower courts. If and when the Supreme Court accepts an original action, it has "found" that exceptional original jurisdiction.

In the present case, the Supreme Court has yet to find original jurisdiction. Nevertheless, last Friday the court issued a writ of injunction against the defendants, who comprise an executive branch agency of government, barring them and it from enforcing a rule that has enjoyed at least the tacit approval of the legislative branch.

So, does that writ of injunction fall within the constitutional purview described by "in aid of [the court's] jurisdiction" where the court hasn't even taken jurisdiction of the case?

Justices Prosser and Gableman seem to think so, although they were inspired to rewrite the State constitution — "all writs necessary" becomes "all actions necessary" and, most significantly, "in aid of its jurisdiction" becomes "whether to exercise its jurisdiction" — in order to judicially reach across both separation of powers divides.

Those are quite expansive readings, which judicial conservatives otherwise claim to eschew on judicially conservative principles.

And the two conservative justices argue that because the legislature has authorized the court by statute to order (only) legal briefing and argument before it decides to find original jurisdiction, that such orders are the functional equivalent of ordering a writ of injunction.

But an injunction is a legal remedy that provides relief to a party, a different category from orders the court might issue to the parties to help facilitate the court's understanding of the facts and law at issue in the case, which are all that the statute specifically authorizes.

Is this writ of injunction "in aid of" jurisdiction the court has yet to even exercise? Is the condition of still deciding whether to exercise jurisdiction the same thing as actually exercising jurisdiction?

Justices Prosser and Gableman say yes, but don't — imho — explain why very convincingly.* Justices Roggensack and Ziegler say yes as well, but don't join Justice Prosser's justification, giving none.

It's not an easy question, and the Wisconsin constitutional language "in aid of" jurisdiction doesn't seem to so easily or readily translate to the judicially created language "whether to exercise" jurisdiction.

At least, it doesn't translate so well for the purposes of this particular writ of injunction which, as Justice Bradley in dissent (joined by Chief Justice Abrahamson and Justice Crooks) observes, was ordered "even though the petitioners have not requested it."**

* e.g., Justice Prosser construes a statute designed to grant a civil right to citizens as instead the granting of power to the judiciary. Such a reading is no hallmark of the qualities of judicial modesty and restraint for which conservative judges are often applauded.

Additionally, Justice Prosser cites two prior Wisconsin cases for support: One where an injunction was granted in advance of the court finding jurisdiction, and one where an injunction was denied in advance of the court finding jurisdiction (but that court issued a variety of different orders other than injunctive relief to a party).

In the former case, the request for injunctive relief was made as a separate filing from the petitioner's request for original jurisdiction, unlike the present "in the alternative" situation (see ** below).

Nor does that case contain any discussion of the "in aid of" provision in the constitution nor whether the writ of injunction issued was in conformance with the constitutional language. So in effect Justice Prosser's citation stands only for the proposition, 'We did it once before.' Associate Justice Clarence Thomas, for one, would likely never abide with such an unqualified reliance on stare decisis.

** The petitioners did request it, but only "[i]n the alternative" to their primary demands, which are that the Supreme Court find original jurisdiction to accept the case and then pronounce the Government Accountability Board's rule unconstitutional.

Therefore if the Wisconsin Supreme Court does decide to find original jurisdiction sometime next month, the court will have granted both of what were presented as two "alternative" requests.

And my own inner strict constructionist is telling me now that "alternative" means "either one or the other" and it's also reminding me that the logical operator "or" can rarely be mistaken for "and."

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