Earlier this week, the Wisconsin Supreme Court issued its decision in State ex rel. Ozanne v. Fitzgerald and State ex rel. Huebsch v. Circuit Court for Dane County. The decision has rightly generated a good bit of commentary about open government, separation of powers, etc. My goal here is to clarify a very limited but important point of Wisconsin appellate procedure.
The issues in the decision came to the court in two ways: an appeal from a temporary order that had been certified by the Wisconsin Court of Appeals and a petition for a supervisory writ filed by Secretary Huebsch. The two cases were combined for briefing and oral argument. The majority’s order denied the certification, granted the petition for a supervisory writ, and then decided the issues contained in the petition for the writ.
In the court’s order, the majority refers to the writ request as a “petition for supervisory/original jurisdiction” (¶ 2) and a “petition for original action” (¶7). In his concurrence, Justice Prosser refers to the writ request as an “original action” which “satisfies several of the court’s criteria for an original action publici juris” (¶19).
Chief Justice Abrahamson, in her writing, will have none of this (¶¶97-101). She notes that the majority order “mistakenly asserts” that a “’petition for supervisory/original jurisdiction” was filed by Huebsch “pursuant to Wis. Stat. §§ (Rules) 809.70 and 809.71,” when in fact the Huebsch petition only references 809.71.
That may be true; in a later brief, the DOJ later suggested the court “recast” Huebsch’s petition as one for an “original action publici juris.” The Chief Justice goes on to say, “There is nothing ‘original’ or ‘in the first instance’ here. . . . [T]he order and Justice Prosser’s concurrence are blending the separate and distinct concepts of original and appellate jurisdiction.” She includes a footnote here, FN10, where she writes, “This case is not an original action in any sense of the phrase.” Lawyer-blogger Illusory Tenant picks up this theme as well, arguing that “supervisory/original jurisdiction” is a “fabrication from whole cloth” unsupported by the statute.
Here I think the Chief Justice and IT are incorrect. As I read the rules of appellate procedure, there are two types of original actions before the Supreme Court: what might be called “publici juris” original actions, which present a set of facts/questions to any court for the first time, and “supervisory” original actions, which are still original actions, but stem from the actions of a lower court in a separate case on the same facts. My primary evidence for this position is that the two rules, and only these two rules, are put under the same heading in the statute books (http://legis.wisconsin.gov/statutes/Stat0809.pdf): “ORIGINAL JURISDICTION PROCEDURE IN SUPREME COURT.” In other words, original actions (.70) and supervisory writs (.71) are both species of the court’s constitutional original jurisdiction. This is also how Justice Crooks sees it: “Let me be clear: taking this case as an original action [publici juris or supervisory authority] is not outside this court’s power” (language in brackets original) (¶145).
In his blog post, IT emphasizes Wis. Stat. § 809.51, which says, “A person may request the court to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and the presiding judge, or other person or body, by filing a petition and supporting memorandum.” IT notes the operative word “or,” setting supervisory jurisdiction and original jurisdiction as two separate types of jurisdiction. However, IT fails to note that .51 applies to the Court of Appeals – it comes under the subsection “DISCRETIONARY JURISDICTION PROCEDURE IN COURT OF APPEALS.” That doesn’t carry forward to .70 and .71, which detail the Supreme Court’s original jurisdiction.
In footnote 38, Justice Prosser writes that “the majority’s order does not give adequate consideration to the distinctions between a petition for a supervisory writ and a petition for an original action.” I think that could be said of much of the writing in and regarding this case. Hopefully this post helps to clarify the situation: petitions for original action publici juris under 809.70 and petitions for supervisory writs under 809.71 are both species of the Court’s original jurisdiction.