Unoriginal Thoughts on Appellate Procedure

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. 

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Do Changes in Benefits for Public Employees Violate the Contracts Clause?

Paul Secunda has a new paper on SSRN that considers under what circumstances statutory changes affecting public-employee benefits might violate constitutional restrictions on the impairment of contracts.  Paul particularly focuses on a very timely case study: Wisconsin’s recent budget-repair bill and its impact on city employees in Milwaukee.  Here is the abstract:

The recent spate of high profile efforts by state governors to roll back public employee pension rights in light of recent budgetary challenges has shone the light directly on the importance to public employees of the Contracts Clause provisions of the federal and state constitutions. Using as an example the controversial budget repair bill in Wisconsin and the application of the bill’s pension provisions to Milwaukee City employee pension rights, this article has sought to show how, under certain specified circumstances, such legislative attempts may be constitutionally impermissible if such laws substantially impair employee contracts with the state without the necessary legal justification.

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Defendant Can Raise Tenth-Amendment Challenge to Her Conviction, SCOTUS Rules

Earlier today, in Bond v. United States (No. 09-1227), the Supreme Court ruled that the defendant should have been permitted to raise a Tenth-Amendment challenge to the chemical-weapons statute that she was convicted of violating.  In response to her indictment for violating 18 U.S.C. § 229, Bond had argued

that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07-cr-00528-JG-1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.

The Third Circuit, however, ruled that Bond lacked standing to raise her constitutional objections.

In reversing this decision, the Court did not address the merits of the objections.  As a result, it’s hard to say whether there is any sympathy on the Court for the basic claim that the Tenth Amendment may be violated when a federal law criminalizes conduct that is “local in nature.”  Still, it is interesting to put Bond alongside last month’s decision in Fowler, in which the Court cited similar federalism concerns in rejecting an expansive interpretation of a different federal criminal statute.  Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.

Cross posted at Life Sentences Blog.

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