Green for Wisconsin v. State Elections Bd., 2006AP2452-OA.

• Citation: 2006 WI 120,723 N.W.2d 418
• Decision Date: 31 October 2006
• Docket Number: No. 2006AP2452-OA.,2006AP2452-OA.
• Parties: GREEN FOR WISCONSIN and Mark Green, Petitioners, v. STATE of Wisconsin ELECTIONS BOARD and Kevin J. Kennedy, in his official capacity as Executive Director of the State of Wisconsin Elections Board, Respondents.
• Court: Wisconsin Supreme Court

723 N.W.2d 418

2006 WI 120

GREEN FOR WISCONSIN and Mark Green, Petitioners, v. STATE of Wisconsin ELECTIONS BOARD and Kevin J. Kennedy, in his official capacity as Executive Director of the State of Wisconsin Elections Board, Respondents.

No. 2006AP2452-OA.

Supreme Court of Wisconsin.

October 31, 2006.

The Court entered the following order on this date:

The court having considered a petition for leave to commence an original action filed on behalf of petitioners, Green for Wisconsin and Mark Green, a response filed on behalf of respondent, State of Wisconsin Elections Board, and further responses filed by the parties in response to the court's orders of October 11, 2006 and October 18, 2006.

The court has worked diligently to assess and determine the legal and factual issues presented by the parties and to reach a consensus on how to proceed; we have explored the difficult substantive and procedural issues in an attempt to bring order out of complex and confusing filings, all to no avail.

The court also having considered a motion filed by the Wisconsin Democracy Campaign for leave to file a brief amicus curiae concerning the petition for leave to commence an original action by Green for Wisconsin and Mark Green;

IT IS ORDERED the motion of the Wisconsin Democracy Campaign is granted. The amicus brief is accepted for filing.

IT IS FURTHER ORDERED, consistent with the procedure followed by this court in prior cases, including Panzer v. Doyle, 2004 WI 52, 271 Wis.2d 295, 680 N.W.2d 666, and Wisconsin Professional Police Assn., Inc. v. Lightbourn, 243 Wis.2d 512, 627 N.W.2d 807, that within 10 days of the date of this order the petitioners shall file an amended petition in the form of a complaint which, in numbered paragraph form, specifies the precise facts and legal theories upon which they rely. Within 10 days thereafter, the respondents shall file an answer to the amended petition/complaint. The court will then submit these documents to a reserve judge, to be named later, who will function under the continued jurisdiction of this court. The judge shall conduct such proceedings as he/she may deem necessary within the exercise of his/her discretion, including of an evidentiary nature, to determine what factual issues are in dispute and whether they relate to the identified legal issues.

These further proceedings will be conducted in accordance with directives from the judge to the parties that will be forthcoming. The judge's findings on disputed, relevant facts, if any, shall be submitted to the court no later than November 30, 2006.

Because this court is not a fact-finding tribunal, it generally will not exercise its original jurisdiction in matters involving contested issues of fact. In re Exercise of Original Jurisdiction, 201 Wis. 123, 128, 229 N.W. 643 (1930) ("This court will with the greatest reluctance grant leave for the exercise of its original jurisdiction. . . where questions of fact are involved."); Wisconsin Supreme Court Internal Operating Procedures II.B3.

This court has on two occasions issued orders asking the parties to clarify the facts upon which the court would have to resolve the matter and to identify disputed facts, if any. It appears from the parties' submissions in response to those orders that there are truly contested issues of fact.

The parties do not appear to agree on what facts are relevant, nor do they agree on the characterization of many facts. The parties' stipulation of facts was for the circuit court proceeding and it does not cover all of the facts at issue here. The respondent says the only relevant facts are the Elections Board's record in creating the emergency rule and issuing the September 6, 2006 order. Petitioners say that the court must also consider the history of the Elections Board's actions regarding previous "conversions" of federal campaign accounts to state campaign accounts. Petitioners' "record" for purposes of an original action would apparently consist of the "record" transmitted by the Dane County Circuit Court from the earlier circuit court case, the Elections Board record, documents regarding the complaint filed with the Federal Election Commission, and "factual assertions offered by the parties." In response, although the respondent's filings have cited certain paragraphs in the petitioners' filings to which it takes exception, it has failed to identify clearly the specific factual allegations that it allegedly disputes. The parties' seemingly inconsistent statements on the existence of disputed factual issues impinges upon this court's ability to evaluate at this point in time whether the case is of the type that should be resolved through the court's original jurisdiction, which is designed to resolve important legal questions but not to referee factual disputes.

The court recognizes that this case may implicate important and complex issues such as due process, freedom of speech, potentially retroactive rule-making, the federal campaign statutes, and administrative procedure/review. Nonetheless, the current posture of the proceedings does not provide the appropriate posture for this court to undertake an original action for final determination of the validity of the merits of the Board's interpretation and application of chapter 11 of the Wisconsin Statutes and the Emergency Rule to Green for Wisconsin/Green.

Even with respect to the legal issues, the parties' submissions follow different paths. For example, the parties disagree as to whether the court must decide an issue of federal law in order to resolve this matter, and they disagree as to whether this court must follow the procedure for judicial review of administrative agency decisions in reviewing the Elections Board's actions. The legal issues identified will require additional extensive briefing by the parties.

IT IS FURTHER ORDERED that within 10 days of the date of this order, each party shall provide the court with a detailed list of the issues of law which it intends to brief and which it believes the court must decide in order to resolve this matter. In framing the issues the parties should bear in mind the issues identified in this court's orders of October 11, 2006 and October 18, 2006, including original, appellate or administrative review jurisdiction.

The parties are advised that in the event that all factual disputes are settled, the legal issues presented are adequately set forth, and the jurisdictional issues resolved, the case may then be in an appropriate posture for this court to grant the petition for leave to commence an original action.

The parties shall be subsequently notified whether the court will assume original jurisdiction over this action and, if the court decides to grant the petition for leave to commence an original action, the parties shall be notified of the briefing schedule.

¶ 1 JON P. WILCOX, J. (dissenting).

I respectfully dissent from the above order requiring further pleadings to address whether or not disputed factual issues exist.

¶ 2 Our October 18, 2006 order asked the parties about disputes of fact. Both parties responded that disputes of fact did not exist. Further pleadings and factual development will not shed any more light on whether this court should decide to exercise its original jurisdiction.

¶ 3 The petition for original jurisdiction raises serious allegations. It raises questions about retroactive rulemaking by a governmental agency, the right of free speech, and the right to due process. In the context of a pending gubernatorial election, these allegations are all the more troubling.

¶ 4 Further pleadings are unnecessary. Accordingly, I respectfully dissent from the order.

¶ 5 I am authorized to state that Justices DAVID T. PROSSER and PATIENCE DRAKE ROGGENSACK join this dissent.

¶ 6 DAVID T. PROSSER, J. (dissenting).

Petitioners Green for Wisconsin and Mark Green ask this court to grant an original action to challenge an emergency rule, an "order" based on that rule, and public accusations by the State Elections Board that have damaged Green's campaign for governor. The petitioners indicate that time is of the essence. The court's order delays an answer to the request and thus denies the petitioners every scintilla of timely relief.

¶ 7 When the court received the petition for an original action, my first preference was to grant it, hear argument, and decide the case before the election. This is what our court is supposed to do when it is faced with an urgent matter of critical importance to the people of Wisconsin.

¶ 8 My second preference was to grant the petition without comment and decide the case after the election. This course would have allowed the petitioners to claim that this court had acknowledged the seriousness of the issues they presented but would not have allowed them to claim victory. It would have stopped the bleeding even though it did not heal the wound.

¶ 9 My third preference was to deny the petition with a frank explanation that the court recognized the serious issues presented but did not see the case as quite ready for decision because the Elections Board's "order" had no legal effect without a subsequent circuit court judgment. Our order could have stated that the court might not be able to do justice to a multitude of important questions in a short time frame and did not want to issue a decision that could affect the election. This candor would probably have deterred the Elections Board from proceeding with any enforcement action in court.

¶ 10 The majority rejects these options in favor of obfuscation and delay, forcing me to file a dissent.

¶ 11 Congressman Green is a candidate for governor. On January 25, 2005, Green's federal campaign committee — Mark Green for Congress — converted or transferred more than $1.2 million in campaign funds to his newly created state campaign committee — Green for Wisconsin.

¶ 12 Some states have acted timely to prevent or limit this...