Flynn v. Department of Admin.

• Decision Date: 13 March 1998
• Docket Number: No. 96-3266,96-3266
• Citation: 216 Wis.2d 521,576 N.W.2d 245
• Parties: Dennis J. FLYNN, individually and on behalf of other citizen users of the Wisconsin Court System, Plaintiff-Respondent, v. DEPARTMENT OF ADMINISTRATION; Mark D. Bugher, the Secretary of Administration, and Jack C. Voight, the Wisconsin State Treasurer, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 245

576 N.W.2d 245

216 Wis.2d 521

Dennis J. FLYNN, individually and on behalf of other citizen

users of the Wisconsin Court System, Plaintiff-Respondent, v. DEPARTMENT OF ADMINISTRATION; Mark D. Bugher, the Secretary

of Administration, and Jack C. Voight, the

Wisconsin State Treasurer, Defendants-Appellants.

No. 96-3266.

Supreme Court of Wisconsin.

Argued Sept. 4, 1997.

Decided March 13, 1998.

For the defendants-appellants the cause was argued by Peter C. Anderson, Assistant Attorney General, with whom on the brief (in the court of appeals) was James E. Doyle, Assistant Attorney General.

For the plaintiff-respondent there were briefs (in the Court of Appeals) by J. Ric Gass, John F. Hovel, Joseph S. Goode and Kravit, Gass & Weber, S.C., and of counsel Eugene O. Duffy and O'Neil, Cannon & Hollman, S.C., Milwaukee, and oral argument by J. Ric Gass.

Amicus curiae brief was filed (in the Court of Appeals) by Christine Stoneman, and John F. Ebbot, Milwaukee for Legal Action of Wisconsin.

Amicus curiae brief was filed (in the Court of Appeals) by Ward I. Richter and Bell, Metzner, Gierhart & Moore, S.C., Madison for Wisconsin Chapter, American Board of Trial Advocates.

Amicus curiae brief was filed (in the Court of Appeals) by Daniel W. Hildebrand and DeWitt, Ross & Stevens, S.C., Madison for State Bar Assocation.

Amicus curiae brief was filed (in the Court of Appeals) by Stephen W. Hayes, William A. Jennaro and Milwaukee Bar Assocation and of counsel R. Timothy Muth, Colleen D. Ball and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C.; Michael J. Morse and von Briesen, Purtell & Roper, S.C.; William J. Mulligan and Davis & Kuelthau, S.C., all of Milwaukee for Milwaukee Bar Association.

¶1 WILLIAM A. BABLITCH, Justice

The power of this court to declare invalid duly enacted legislation is an awesome one. It is a power that is largely unchecked, most always final. If we are to maintain the public's confidence in the integrity and independence of the judiciary, we must exercise that power with great restraint, always resting on constitutional principles, not judicial will. We may differ with the legislature's choices, as we did and do here, but must never rest our decision on that basis lest we become no more than a super-legislature. Our form of government provides for one legislature, not two. It is for the legislature to make policy choices, ours to judge them based not on our preference but on legal principles and constitutional authority. The question is not what policy we prefer, but whether the legislature's choice is consistent with constitutional restraints. We find that it is in this case.

¶2 The issue is the validity of the Wisconsin Legislature's enactment of 1993 Wis. Act 16, § 9253, causing the lapse of $2,898,000 to the general revenue fund of unexpended program revenues designed for court automation. Dennis J. Flynn argues on behalf of himself and other citizen users of the Wisconsin court system that this statute is invalid because it violates fundamental public policy grounded in the constitution, and the separation of powers doctrine. We disagree with Flynn's arguments. Accordingly, we reverse.

¶3 In 1989, in response to a request by the judicial branch, the legislature created an appropriation for court automated information systems, later codified as Wis. Stat. § 20.680(2)(j) (1989-90) (reprinted in full below). ¹ "Automated information systems" for the judiciary includes electronic filing of documents, document imaging, computerized file tracking, judicial access to computerized research tools, Internet access to the Wisconsin court system, computerized court rooms, and integrating the computer information systems of all the circuit courts in the state through a circuit court automation program (CCAP).

¶4 Court automation is funded through program revenue (defined below). ² Several sections of Wis. Stat. ch. 814 provide that the clerks of court for each county in Wisconsin shall collect filing fees and remit them to the county treasurer. See Wis. Stat. §§ 814.61, 814.62, 814.63 (1993-94). ³ In addition to filing fees, court users pay a $3 court automation fee. See Wis. Stat. § 814.635. The county treasurer then submits a statutorily determined portion of the fees to the state treasurer. The state treasurer deposits the funds in the general revenue fund. Although the funds are held in the general revenue fund as program revenue, a certain portion, designated by statute, is credited to the court automation program. See Wis. Stat. §§ 20.680(2)(j), 814.61, 814.62 and 814.63.

¶5 Until the 1995-1997 biennium budget when court automation became an annual appropriation (defined below), ⁴ the court automation program revenue was classified as a continuing appropriation (defined below). ⁵ Expenditures made under a continuing appropriation from program revenues "are limited only by the available revenues from which the appropriation is made." Wis. Stat. § 20.001(3)(c).

¶6 At the time of the governor's 1993-95 budget proposal, the Department of Administration (the Department) projected that the court automation appropriation would have a positive balance of over $4 million at the end of fiscal year 1993. The court automation fees were also scheduled to sunset on December 31, 1993. See Wis. Stat. §§ 814.61(1)(a)2., (3)(b), (8)(am), 814.62(1)(b), (3)(a)2., (3)(d)2., (3)(d)3., 814.63(1)(b) (1991-1992).

¶7 The Legislative Fiscal Bureau offered four alternatives for the court automation program with respect to the anticipated $4 million balance for consideration by the Joint Finance Committee. The first alternative was the governor's proposal to extend the sunset of the court automation fees by two years, authorize approximately $3.24 million in addition to the base funding level, and lapse $3.5 million from the court automation program revenue continuing appropriation to the general fund. The second alternative suggested modifying the governor's recommendation by deleting the $3.5 million lapse. The third alternative would have deleted the $3.5 million lapse while authorizing additional expenditures of $2,372,900 to enhance the CCAP program. The fourth alternative suggested modifying the governor's proposal by reducing the lapse by $602,000 and authorizing additional expenditures of $301,000 in each year of the biennium for public access terminals.

¶8 The Joint Finance Committee reported out the fourth alternative, which was adopted by the full legislature. As a result, the legislature increased the appropriations for the court automation program authorized under Wis. Stat. § 20.680(2)(j) by nearly $1 million from the previous biennium, extended the CCAP fee sunset another two years, and lapsed $2,898,000 million from the court automation program revenue appropriation to the general fund. See 1993 Wis. Act 16, §§ 153, 3761, 3763, 3766, 3768-3772, 9253. Specifically, 1993 Wis. Act 16, § 9253 provided:

Notwithstanding section 20.001(3)(c) of the statutes, on the effective date of this subsection, there shall lapse to the general fund $2,898,000 from the appropriation to the supreme court under section 20.680(2)(j) of the statutes.

¶9 In March, 1995, Flynn, individually and on behalf of other citizen users of the Wisconsin court system, filed this action against the Department, requesting a declaratory judgment, under Wis. Stat. § 806.04, that 1993 Wis. Act 16, § 9253 is unconstitutional. Flynn challenges executive and legislative actions in enacting 1993 Wis. Act 16, § 9253 as violating public policy grounded in the constitution, statutes, common law and public expectations. He further challenges § 9253 as a violation of the separation of powers doctrine. The parties filed cross motions for summary judgment.

¶10 The circuit court granted Flynn's motion for summary judgment and declared 1993 Wis. Act 16, § 9253 invalid as a violation of fundamental public policy grounded in thE wisconsin constitution. the circuit court, however, denied Flynn's claim that the statute was invalid because it violated Wis. Stat. § 20.001(3)(c), and the court did not address Flynn's argument that the statute violated the separation of powers doctrine. After hearing arguments pursuant to the court's Order to Show Cause, the circuit court ordered that the funds lapsed to the general revenue fund be returned to the court automation program which, at the time, was funded through an annual appropriation rather than a continuing appropriation. The circuit court granted Flynn's motion for attorneys fees awarded out of the common fund. The circuit court also ordered a brief interim stay, pending determination by the court of appeals of the Department's motion to stay execution of the judgment pending appeal. The defendants then filed their notice of appeal. This court granted Flynn's petition to bypass the court of appeals according to Wis. Stat. § 809.60.

¶11 The parties agree, and correctly so, that this court's review of the circuit court's grant of summary judgment is de novo, applying the same summary judgment methodology of Wis. Stat. § 802.08. See Millers Nat. Ins. Co. v. Milwaukee, 184 Wis.2d 155, 164, 516 N.W.2d 376 (1994). Additionally, both parties moved for summary judgment which is equivalent to a stipulation of facts, thus permitting the circuit court to decide the case only on legal issues. See Friendship Village of Greater Milwaukee v. Milwaukee, 181 Wis.2d 207, 219, 511 N.W.2d 345 (Ct.App.1993).

I.

¶12 In part I. of his brief, Flynn argues that 1993 Wis. Act 16, § 9253 is not entitled to a presumption of constitutionality. It is unclear from his brief and from oral argument what the basis is for his assertion. We discern two possible alternative grounds for Flynn's assertion. One possibility is that § 9253 is a private or local bill; thus, the process by which it was enacted into law is not deserving of the presumption of constitutionality. Alternatively, Flynn could be arguing...