Steven Walters
The State of Politics

A Supreme Court of First Resort?

Many petitions defy precedent, ask Wisconsin Supreme Court to bypass lower courts.

By - Dec 7th, 2020 10:39 am
Wisconsin Supreme Court. Photo by Dave Reid.

Wisconsin Supreme Court. Photo by Dave Reid.

That old adage that calls a Supreme Court the “court of last resort” isn’t true anymore, at least not in Wisconsin. The state Supreme Court must now decide how much it wants to become the “court of first resort.”

The high court has received a record number of “original action” filings recently — pleas to take important cases and decide them directly, bypassing lower circuit courts or the four state courts of appeals. Those lower courts were created to fact-find and resolve cases, setting precedents that the Supreme Court may or may not review.

But now it seems, you simply ask to override the system:

-If you’re the campaign of President Donald Trump, and you want 220,000 votes cast on Nov 3 tossed because they were absentee ballots or cast by voters who declared themselves as “indefinitely confined,” you file an original action (OA) petition.

-If you think the Wisconsin win by Democrat Joe Biden should be overturned, and the Republican-controlled Legislature allowed to name the state’s 10 Electoral College voters, you turn to the Supreme Court with an OA appeal.

-If you’re Republican legislators, a wealthy Republican donor, or business group opposing repeated “emergency” declarations by Democratic Gov. Tony Evers asking residents to stay at home, wear face masks in enclosed areas and limit room and business occupancies to 25% of capacity to fight the pandemic, you file OA requests with the Supreme Court..

-If you want an order telling the City of Racine it can’t — for now — close public and private schools because of the Covid-19 pandemic, file an OA and have a divided court issue that order..

-If you own Gymfinity, a gymnastics training center in Dane County, and want to overturn Dane County’s public safety orders that limit your business practices, ask the court to intervene by filing an OA.

-If you’re the clerks of Outagamie and Calumet counties, and you want legal advice on how to handle 13,000 absentee ballots that were misprinted in ways that prevent voting machines from reading them, file an OA appeal.

-And if you’re Atty. Gen. Josh Kaul and Evers, and you think Republican legislators illegally infringed on the state Justice Department’s ability to negotiate legal settlements with a lame-duck session law passed in December 2018, file an OA appeal.

When the Court ruled 4-3 (with four conservatives in favor, three liberals dissenting) that Racine public safety guidelines couldn’t close public and private schools, Justice Rebecca Dallet said the OA practice was being abused and the court was being manipulated.

In her dissent, Dallet cited language from a 1978 ruling by the court. “This court is not ‘a performing bear, required to dance to each and every tune’ litigants play for it,” Dallet wrote.

“The majority’s frequent exercise of Original Action and injunctive authority has transformed the court into the preferred forum for Wisconsinites to second guess public-health policy choices,” she added. “The adjudication of fact-intensive disputes over local policies instead belongs in circuit court in front of locally elected judges. This court should not accept this original action or enjoin the City of Racine Public Health Department’s health order.”

Referring to the growing practice of groups filing OAs, Dallet wrote: “This court has turned into a one-stop shop for undoing local policymaking by discounting long standing limitations on our original jurisdiction and injunctive-relief authority….This court historically has respected two principles counseling against its exercise: Do not intervene in wholly local disputes and do not resolve questions of disputed fact.”

When he cast the key vote rejecting the OA plea from President Trump’s campaign to disqualify 220,000 votes,  Justice Brian Hagedorn agreed with Dallet. The countering arguments made by Trump’s campaign and state government lawyers as to whether Democrat Joe Biden’s 20,600-vote win in Wisconsin must stand, “reveal important factual disputes that are best managed by a circuit court,” Hagedorn wrote. “The parties clearly disagree on some basic factual issues… I do not know how we could address all the legal issues raised  in the [Trump] petition without sorting through these matters, a task we are neither well-positioned nor institutionally designed to do. The statutory process assigns this responsibility to the circuit court.”

On Friday, Hagedorn again cast the deciding vote dismissing the second suit to invalidate Biden’s win and allow Republican legislators to name Electoral College members. The legal appeal “falls far short of the kind of compelling evidence and legal support we would undoubtedly need to countenance the court-ordered disenfranchisement of every Wisconsin voter,” Hagedorn wrote.

And he added a concern about bypassing the lower courts: “The petition does not even justify the exercise of our original jurisdiction. As an initial matter, the Wisconsin Supreme Court is not a fact-finding tribunal. Yet the petition depends upon disputed factual claims.”

Many other OA requests are pending before the high court, however.

Maybe that acronym — OA — doesn’t apply anymore.  A better acronym may be “HM” — as in the filing of “Hail, Mary” appeals.

Steven Walters is a senior producer for the nonprofit public affairs channel WisconsinEye. Contact him at stevenscotwalters@gmail.com

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2 thoughts on “The State of Politics: A Supreme Court of First Resort?”

  1. Dan Wilson says:

    I am not unsympathetic to filing direct to the State Supreme Court, in view of the fact this court has no use for lower court opinions or rulings no matter how legally sound they may be. Especially if it is a politically charged case the Supremes are willing to impose their version of the law no matter how much legal scholarship a local judge may have applied. So why waste time and expense in the lower courts? The court has brought this upon themselves.

  2. brthompson says:

    A major factor, I think is arrogance. With the exception of Hagedorn, the conservative justices seem to regard themselves as far more intelligent than others and therefore have nothing to learn, Rebecca Bradley is the worst. In overruling Evers attempt to control the pandemic, she dismissed Secretary Palm as “unelected.” She used the same term for members of the Wisconsin Election Commission.

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