*1 Green, and Mark Green Wisconsin Petitioners, State of Wisconsin Elections Board Kennedy, capacity and Kevin J. in his official as Executive Director of the State Wisconsin Respondents.
Elections Board,
Supreme Court
April
No. 2006AP2452-OA. Decided
IT ORDERED that IS any party. prejudice costs and without to missed, with {concurring). ¶ CROOKS, While J. 1. N. PATRICK dismissing matter, based on in the order this I concur petitioners, unopposed I in of the write motion the lengthy respond of to the concurrence Justice order to Prosser. David T. County years ago,
¶ Circuit 2. Several Grant distinguished Judge Orton, trial Court Richard W summary doing judgment judge, in a case. ordered "hogwash, plaintiffs' case so, he the as characterized portions phrase aptly pure hogwash." of That fits those denigrates Prosser where he concurrence of Justice the following this court. The of members of the actions phrases in his concur- are used unfair and inaccurate imaginable pretext every to avoid rence: the court "used (¶ 16); making not "court did care" the a decision" (¶ 23); (¶ 17); of the case the facts was "indifferent" to by difficulty of facts and the the was "overwhelmed 28). (¶ up "threw its hands" issues" and many, many spent is that this court fact asking working petition an to commence on the hours original of action, the submissions as well as on various petitioners, respondents, the amicus. and accurately sets 31, order of this court 2006 October try get that made to extensive efforts were forth the posture, appropriate so that an this matter into grant be made as whether decision could invoking petition, our thus, take this case ultimately jurisdiction. the case course, of take did,We grants disputes. court no factual This were once there 165 " petitions original jurisdiction greatest 'with the especially questions reluctance ... where are fact involved of Heil, Petition 230 Wis. (1939) (citing Hartung City N.W State rel. ex (1899)).
Milwaukee, 509, 102 Wis. 78 N.W.756 12, 4. The March 2007 order of this court came response changes brought by legis- in to the about governor eliminating lature and the the State Elec- creating tions Board and the State Ethics Board, Accountability a new Government Board. That new authority board has the to review, and, its action or nullify inaction, to affirm or decisions the two boards 209(2)(e). § that were eliminated. See Wis. Act shortly The settlement of case came after we issued asking argument order, whether oral *3 despite changes, should be scheduled or whether it prudent was until wait the new Ac- Government countability opportunity Board had an to act or decline to act.
¶ 5. is Much made the concurrence of Justice "great Prosser about how this court was court," once a longer description. and how we no fit that Justice "great ¶¶ concurrence, Prosser's In order to be a court," I believe that the of members such a court must persons deeply justice, be who care truth, about great respect my colleagues fairness. I have for on the Supreme Court, Wisconsin others, but it is for not for judge "great us, to whether we continue to be a court." handling by my IWhat observed in of this case colleagues deeply convinced me that each of them cared justice, parties. truth, about and fairness for the To denigrate, wrong now, their must, actions and I respond therefore, to such unfair and inaccurate char- of acterizations its court and actions in this case. Accordingly, respectfully I concur. {concurring). PROSSER, T. J. The
¶ 6. DAVID petitioners, Green, for and Mark move Wisconsin Green their action. for an order to dismiss this court upon Stipulation a of the based Their motion is petitioners' was filed the case. The motion to settle attorney respon- general representing the an assistant agreement. In the settlement dents, which underscores reluctantly concur in the settlement, I view of the Nonetheless, because this the action. Order to dismiss always urgent attention, I the court's case warranted necessary. comment is believe additional many cases in the notable 7. There have been By history most accounts, court. all one of this Attorney significant The rel. was General ex Bashford (1856). Ranney, Joseph A. Barstow, 4 See Wis. (1999); Trusting Nothing 84-88 John to Providence Story Bradley Court Winslow, a Great 96-107 (1912). gover- disputed involved election case governor removed nor the court essence in which from office. ran for A. Barstow 1855 Governor William Although party dominated Wisconsin his
re-election. many apparently antagonized politics, Barstow had of the ticket. The ran well behind the rest voters, he very unresolved for day and remained election was close *4 allowed December last weeks. On Barstow's certified law, state board of canvassers supra, at Winslow, 157 votes. reelection opponent, claimed Bashford, Coles 9. Barstow's Chippewa, from returns He that slow fraud. asserted con- Waupaca, counties other northern and several precincts votes. manufactured fictitious tained
167 supra, 97, Winslow, at 101. Bashford moved to ñle a quo supreme challenging in court, writ warranto right Barstow's election and his to hold the office of governor. supra, Winslow, at 99. newly attorney general
¶ 10. The elected took quo control of the warranto so that member of party manage Eventually, Barstow's could the action. stepped supra, however, he aside. Winslow, at vigorously opposed ju- ¶ 11. Barstow the court's supra, risdiction hear the case. Winslow, at 102. otherwise, When court decided Barstow refused to thereby permitting file a answer, substantive a default judgment. attorneys Barstow's withdrew after deliver- ing threatening a communication from Barstow any resist removal order from the all court "with department." supra, force Winslow, vested at 104-05.1
¶ 12. The court was not deterred. Rather than against required enter a Barstow, default however, it proofs Bashford to make his and demonstrate his title supra, to office. He Winslow, did. at 106. Once the "irregularities amply and fraudulent returns were proven," judgment. supra, the court entered Winslow, at days judgment, resigned, 106. Several before Barstow 1As Justice later Winslow wrote: "This plainly was a threat of armed resistance in case the proceeded Court to seat Bash- Especially significant ford. was the threat in view of the fact that arms were known to have been stored in the state house for emergency." Winslow, use case of an Bradley John Story (1912). a Great Joseph Ranney Court adds: "Tensions ran high. Militia units from supporting areas Barstow came to inauguration Madison for his stayed fight him if necessary." Joseph Ranney, Trusting Nothing A. to Providence (1999). *5 governor transferring who office to the lieutenant supra, promptly Winslow, order. at the court's honored 107. jurisdiction explaining
¶ de- In the court's 13. "political case," Justice Edward Whiton cide Chief pro- the mere instrument that the court "is observed and enforce to ascertain the constitution vided rights Barstow's] [Bashford's that in- as fixed and in all is the same as controversies Its office strument. rights, party party; not to create but to between Ranney, supra, at 85 and enforce ascertain them." 659). (quoting 4 Wis. at Bashford, Throughout proceedings, ¶ the court was Smith, a member of Barstow's Abram D. united. Justice every important party, the court. issue before wrote on Ryan, G. also a member Future Chief Justice Edward arguing party, leading played role in a Barstow's proving Ranney, supra, 84; Winslow, at Bashford's case. supra, at according Barstow, case of 15. The Bashford Ranney, "conclusively Joseph A. established
to historian interpreter Court's] Supreme [the final role as the Ranney, supra, at 84. It also assured the law." process. represented integrity thus electoral It of the legal history. pivotal moment Wisconsin r—IhH than decided more v. Barstow was 16. Bashford ago. century-and-a-half live in different times. now We Story sequel Justice ever a Winslow's If there Court, not be included. the Green case will a Great of the midst gubernatorial important and aftermath of an nothing enforce did to ascertain and election, this court rights, integrity process. or to assure of the electoral *6 every imaginable pretext Instead, it used to avoid making a decision. petitioner
¶ 17. Some believe citizens that Green campaign and his committee were violators, even though deprived op- the Elections Board them of the portunity lawfully publicly reported to use collected, political campaign. in contributions Green's Other citi- zens believe that Green the was victim of an abuse of government power. history No matter it, how one sees will show that this court did not care. outset, 18. From the Green contended that he complied every respect
and his committee had in with existing state and federal law. The Elections Board now stipulates that:
[W]hen Green for Wisconsin ... converted disputed funds from Petitioner Mark campaign Green's federal campaign committee to his state January committee on (1) complied previous it with: Board determi- (2) respect matters; nations with 1.39, similar ElBd (3) written interpreted time; as and at the and instruc- provided tions the Board's staff. say?
¶ 19. What more is there to When "acknowledge position also that Board's litigation interpreta- was based on the Board's current parties acknowledge tion of the statutes," relevant added.) irrelevancy. (Emphasis an recognized ¶ 20. This court Board Elections v. Commerce, Wisconsin & Wis. 2d Manufacturers (1999), 650, 597 N.W.2d 721 retroactive rulemaking speech least in the area of a viola —at —is process tion due of This law. court said: "Because we [persons are] assume that free to steer between lawful give conduct, unlawful we insist that laws intelligence opportu ordinary person a reasonable may [or she] nity prohibited, so that he what is to know City Grayned (quoting accordingly." v. Id. at 676-77 act (1972)). is a 104, 108 "Such notice 408 U.S. Rockford, of basic (citing Grayned, process." requirement Id. of due 108). atU.S. on: First Amend- 21. The court went "Because govern- breathing space survive, freedoms need ment only speci- may regulate in the area with narrow ment Buckley ficity." (quoting Valeo, 424 U.S. Id. at 677 (1976)). 41 n.48 Department attorneys were
¶ 22. When Justice upon the Elections Board's rules called to defend they trying content with to defend "order," were not *7 rulemaking. publicly repeatedly They and retroactive violating position a that law, Green of federal accused directly formal inter- the Elections Board's contradicted astounding pretation of and disturb- federal law.2This rule emergency explanation Board's its The Elections part: reads in emergency the exists in The Board that an Elections finds permits change in law
recent transfer of funds federal campaign account candidate committee's in a federal campaign committee account.... candidate's state November, 2004, Congress amended the Federal Election permit of a Campaign the transfer federal candidate's Act... campaign state campaign to the candidate's committee's funds subject committee, permitted, and to the state law's if state law requirements and restrictions. November, 2004, money Congress' in which Because of action BICRA, and state under not been available to a committee had political purposes might qualified for in not have for use which campaign other noncom- source or because of because of its state law, be transferred a state pliance state could now with law, committee, permitted. under Wisconsin if state law Code, rule, 1.39 Adm. allows current ElBd Wis. Board's ing position may why Attorney be the former reason Peggy Lautenschlager's conspicuously General name missing Department attorneys from all the briefs filed in this case.
¶ 23. To these hard facts the court has been procedural history indifferent. The extensive of this is set case out below. petition 9, 2006, 24. On October Green filed a
for an action this court. responded 11, 2006, On October court promptly by issuing two orders. One ordered the Elec- response tions Board to file a 16, October 2006. The other ordered Green to secure and transfer to this court relating pro- records from the Elections Board to its ceedings, Emergency January its 26, 2005, Rule and September papers 6, 2006, its "order,"as well as all and transcripts from Green's unsuccessful effort to obtain injunction against an the Board's "order" the Dane (Case 2006CV3055). County Circuit Court No. ¶ 26. 18, 2006, On October this court ordered the petitioners respondents ques- to file answers to 11 Appendix tions October 19, 2006. See A. ¶ 27. On October the court issued third order. 2006 300, WI Wis. 2d 723 N.W.2d order stated that: diligently court has worked to assess and legal
determine the presented by factual issues *8 and to reach parties proceed; a consensus on how to we explored have the difficult procedural substantive and in an to attempt bring issues order out complex of added.) confusing filings, all to no (Emphasis avail. committees, campaign funds, conversion and their to a federal of campaign regard state committee without to source the those of regard and without (Emphasis to contribution limitations. funds added.) of difficulty the overwhelmed Seemingly hands and court threw its issues, up the the facts and "in to file an amended petition the petitioners ordered which, in numbered paragraph a complaint the form of upon facts and theories legal the form, specifies precise then ordered to The were respondents they rely." which the The order stated the new "complaint." answer ato reserve these documents court would then submit are in factual issues determine "what who would judge the identified legal relate to they and whether dispute alleged the on at about length The court went issues." of facts: jumble disputed issued orders court has on two occasions
This clarify the upon the facts which asking- parties the identify have to the matter and court would resolve facts, any. parties' It from the appears if disputed that there are response to those orders submissions truly issues of fact. contested agree on what facts appear do not
The agree characterization relevant, they nor on the do are of facts was parties' stipulation many of facts. all of does not cover court and it proceeding the circuit says only the respondent at issue here. the facts record cre- the Elections Board's relevant facts are September issuing the ating emergency rule and the say court must also that the 2006 order. Petitioners actions history the Elections Board's the consider campaign of federal regarding previous "conversions" accounts. Petitioners' campaign state accounts to appar- would of an action purposes "record" for by the Dane ently consist the "record" transmitted circuit court from the earlier County Circuit Court record, regarding case, documents Elections Board Federal Election Commis- filed with the complaint parties." sion, offered and "factual assertions filings have cited although respondent's response, it filings to which petitioners' in paragraphs certain *9 exception, takes identify clearly it has failed to specific allegations factual allegedly that it disputes. parties' seemingly inconsistent statements on the of disputed factual impinges upon existence issues this ability point court's at evaluate in time whether is of the type through case that should be resolved original the court's jurisdiction, designed which is important legal resolve questions but not to referee factual disputes. justices
¶ 29. Three dissented from this order. pleadings Justice Jon Wilcox wrote: "Further and fac- development any light tual will not shed more on original whether this court should decide exercise its jurisdiction.... pleadings unnecessary." Further are (Wilcox, Green, dissenting). ¶¶ 300 164, 2, Wis. 2d J, Roggensack Justice Patience wrote: "Neither further development pleading necessary factual nor further for this court to decide whether to exercise its jurisdiction.. unnecessarily delays .. . . . order making a decision on this issue until after the Novem- (Roggensack, 7, ber Id., ¶¶ 2006 election ." 23, ... J., dissenting).
¶ 30. On November the court issued an appointing order the Honorable William F. Eich to proceedings conduct the described its 31, October 2006, order. Judge
¶ 31. On 12, December Eich issued report. petitioners' petition his He noted that amended "thirty separate paragraphs" reciting listed facts. He "Respondents thirty stated that admit each of allegations factual of the Amended Petition." He stated parties agreed legal that on the issues. Then he agreed represented declared: "The have necessary the material to determination of the facts pleadings, matters are, as contained issues above *10 undisputed." (Emphasis any and, event, are record added.) Appendix B. See January 23, 2007, the ¶ later, on 32. Six weeks jurisdic- accepting original order, a court issued fourth enumerating eight setting briefing schedule, and a tion, Appendix C. See issues. a fifth
¶ 12, 2007, the court issued 33. On March asking parties "desirable and whether it was order, delay arguments prudential matter until this oral Accountability [newly created] Board Government Appendix hinted at D. This order has acted." See argument delaying 2008. late 2007 or even until days the case ¶ later, the Four settled and filed a motion to dismiss. argu- oral
¶ court schedule 35. At no time did the ment. speaks procedural for itself. record 36. This sequel Story to The If there is ever a Court, included. But with this case will not be
Great likely many not to be one, there is more cases like sequel.