Wisconsin Supreme Court – Page 15 – Marquette University Law School Faculty Blog

Separation of Powers and the Wisconsin Supreme Court

Post author:Edward A. Fallone
Post published:July 15, 2011
Post category:Constitutional Interpretation Wisconsin Law & Legal System Wisconsin Supreme Court

Yesterday, I participated in a panel discussion hosted by the Madison Chapter of the Federalist Society, entitled “Separation of Powers: Wisconsin Supreme Court’s Decision Upholding the Collective Bargaining Law.” The discussion was moderated by Justice Jon Wilcox of the Wisconsin Supreme Court (Retired) and along with myself the panel included Deputy Attorney General Kevin St. John, who argued the Ozanne v. Fitzgerald case on behalf of the State of Wisconsin. The entire discussion was recorded by Wisconsin Eye and can be viewed at this link.

What follows are my prepared remarks. However, I encourage interested readers to follow the above link in order to hear both Attorney St. John’s able defense of the Ozanne decision on separation of powers grounds, and also the questions and answers following our presentations. I want to thank Andrew Cook and the Federalist Society for the opportunity to present my views.

Ozanne v. Fitzgerald: Haste Makes Waste

Post author:Edward A. Fallone
Post published:June 25, 2011
Post category:Constitutional Interpretation Judges & Judicial Process Labor & Employment Law Wisconsin Law & Legal System Wisconsin Supreme Court

On June 23, I participated in a discussion concerning the Wisconsin Supreme Court’s decision in Ozanne v. Fitzgerald, 2011 WI 43, on the Wisconsin Eye public affairs show “Legally Speaking.” Rick Esenberg and I continued our ongoing difference of opinion regarding this litigation, which seems to generate an endless supply of novel and contentious legal questions. You can view the program at this link.

My criticisms of the unusual procedural posture of the case, and of the lack of wisdom exhibited by the four member majority’s rush to resolution, are fully stated in the video.

For the remainder of this post, I would like to expand on my criticism of the majority’s legal conclusion that the legislature lacks the power under the State Constitution to submit itself to the jurisdiction of the courts under the Open Meetings Law.

Unoriginal Thoughts on Appellate Procedure

Post author:Daniel Suhr
Post published:June 19, 2011
Post category:Wisconsin Law & Legal System Wisconsin Supreme Court

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.