GREEN FOR WISCONSIN v. STATE ELECTIONS BD., 2006AP2452-OA.
| Decision Date | 25 April 2007 |
| 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 |
The Court entered the following order on this date:
The parties have agreed that this case may be dismissed, with prejudice, without costs, and without further notice to any party.
IT IS ORDERED that the original action is dismissed, with prejudice and without costs to any party.
While I concur in the order dismissing this matter, based on the unopposed motion of the petitioners, I write in order to respond to the lengthy concurrence of Justice David T. Prosser.
¶ 2 Several years ago, Grant County Circuit Court Judge Richard W. Orton, a distinguished trial judge, ordered summary judgment in a case. In doing so, he characterized the plaintiffs' case as "hogwash, pure hogwash." That phrase aptly fits those portions of the concurrence of Justice Prosser where he denigrates the actions of members of this court. The following unfair and inaccurate phrases are used in his concurrence: the court "used every imaginable pretext to avoid making a decision" (¶ 16); the "court did not care" (¶ 17); was "indifferent" to the facts of the case (¶ 23); was "overwhelmed by the difficulty of the facts and issues" and "threw up its hands" (¶ 28).
¶ 3 The fact is that this court spent many, many hours working on the petition asking to commence an original action, as well as on the various submissions of the petitioners, the respondents, and the amicus. The October 31, 2006 order of this court accurately sets forth the extensive efforts that were made to try to get this matter into an appropriate posture, so that a decision could be made as to whether to grant the petition, and thus, take this case invoking our original jurisdiction. We did, of course, ultimately take the case once there were no factual disputes. This court grants petitions for original jurisdiction "`with the greatest reluctance . . . especially where questions of fact are involved. . . .'" Petition of Heil, 230 Wis. 428, 436, 284 N.W. 42 (1938) (citing State ex rel. Hartung v. City of Milwaukee, 102 Wis. 509, 78 N.W. 756 (1899)).
¶ 4 The March 12, 2007 order of this court came in response to the changes brought about by the legislature and the governor in eliminating the State Elections Board and the State Ethics Board, and in creating a new Government Accountability Board. That new board has the authority to review, and, by its action or inaction, to affirm or nullify decisions by the two boards that were eliminated. See 2007 Wis. Act 1, § 209(2)(e). The settlement of this case came shortly after we issued that order, asking the parties whether oral argument should be scheduled despite the changes, or whether it was prudent to wait until the new Government Accountability Board had an opportunity to act or decline to act.
¶ 5 Much is made in the concurrence of Justice Prosser about how this court was once a "great court," and how we no longer fit that description. Justice Prosser's concurrence, ¶¶ 16, 37. In order to be a "great court," I believe that the members of such a court must be persons who care deeply about truth, justice, and fairness. I have great respect for my colleagues on the Wisconsin Supreme Court, but it is for others, not for us, to judge whether we continue to be a "great court." What I observed in the handling of this case by my colleagues convinced me that each of them cared deeply about truth, justice, and fairness for the parties. To denigrate, now, their actions is wrong and I must, therefore, respond to such unfair and inaccurate characterizations of the court and its actions in this case. Accordingly, I respectfully concur.
The petitioners, Green for Wisconsin and Mark Green, move this court for an order to dismiss their original action. Their motion is based upon a Stipulation of the parties to settle the case. The petitioners' motion was filed by an assistant attorney general representing the respondents, which underscores the settlement agreement. In view of the settlement, I reluctantly concur in the Order to dismiss the action. Nonetheless, because this case always warranted the court's urgent attention, I believe additional comment is necessary.
¶ 7 There have been many notable cases in the history of this court. By all accounts, one of the most significant was The Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567 (1856). See Joseph A. Ranney, Trusting Nothing to Providence 84-88 (1999); John Bradley Winslow, The Story of a Great Court 96-107 (1912). The case involved a disputed election for governor in which the court in essence removed a governor from office.
¶ 8 In 1855 Governor William A. Barstow ran for re-election. Although his party dominated Wisconsin politics, Barstow had apparently antagonized many voters, and he ran well behind the rest of the ticket. The election was very close and remained unresolved for weeks. On December 17, 1855, the last day allowed by law, the state board of canvassers certified Barstow's reelection by 157 votes. Winslow, supra, at 97.
¶ 9 Barstow's opponent, Coles Bashford, claimed fraud. He asserted that slow returns from Chippewa, Waupaca, and several other northern counties contained fictitious precincts and manufactured votes. Winslow, supra, at 97, 101. Bashford moved to file a writ of quo warranto in the supreme court, challenging Barstow's election and his right to hold the office of governor. Winslow, supra, at 99.
¶ 10 The newly elected attorney general took control of the quo warranto so that a member of Barstow's party could manage the action. Eventually, however, he stepped aside. Winslow, supra, at 99, 101.
¶ 11 Barstow vigorously opposed the court's jurisdiction to hear the case. Winslow, supra, at 102. When the court decided otherwise, Barstow refused to file a substantive answer, thereby permitting a default judgment. Barstow's attorneys withdrew after delivering a communication from Barstow threatening to resist any removal order from the court "with all the force vested in this department." Winslow, supra, at 104-05.1
¶ 12 The court was not deterred. Rather than enter a default against Barstow, however, it required Bashford to make his proofs and demonstrate his title to office. He did. Winslow, supra, at 106. Once the "irregularities and fraudulent returns were amply proven," the court entered judgment. Winslow, supra, at 106. Several days before judgment, Barstow resigned, transferring the office to the lieutenant governor who promptly honored the court's order. Winslow, supra, at 107.
¶ 13 In explaining the court's jurisdiction to decide this "political case," Chief Justice Edward Whiton observed that the court Ranney, supra, at 85 (quoting Bashford, 4 Wis. at 659).
¶ 14 Throughout the proceedings, the court was united. Justice Abram D. Smith, a member of Barstow's party, wrote on every important issue before the court. Future Chief Justice Edward G. Ryan, also a member of Barstow's party, played a leading role in arguing and proving Bashford's case. Ranney, supra, at 84; Winslow, supra, at 99.
¶ 15 The case of Bashford v. Barstow, according to historian Joseph A. Ranney, "conclusively established the Supreme Court's role as the final interpreter of the law." Ranney, supra, at 84. It also assured the integrity of the electoral process. It thus represented a pivotal moment in Wisconsin legal history.
¶ 16 Bashford v. Barstow was decided more than a century-and-a-half ago. We live now in different times. If there is ever a sequel to Justice Winslow's The Story of a Great Court, the Green case will not be included. In the midst and aftermath of an important gubernatorial election, this court did nothing to ascertain and enforce rights, or to assure the integrity of the electoral process. Instead, it used every imaginable pretext to avoid making a decision.
¶ 17 Some citizens believe that petitioner Green and his committee were campaign violators, even though the Elections Board deprived them of the opportunity to use lawfully collected, publicly reported political contributions in Green's campaign. Other citizens believe that Green was the victim of an abuse of government power. No matter how one sees it, history will show that this court did not care.
¶ 18 From the outset, Green contended that he and his committee had complied in every respect with existing state and federal law. The Elections Board now stipulates that:
When Green for Wisconsin . . . converted the disputed funds from Petitioner Mark Green's federal campaign committee to his state campaign committee on January 25, 2005, it complied with: (1) previous Board determinations with respect to similar matters; (2) E1Bd 1.39, as written and interpreted at the time; and (3) instructions provided by the Board's staff.
¶ 19 What more is there to say? When the parties also "acknowledge that the Board's position in this litigation was based on the Board's current interpretation of the relevant statutes," the parties acknowledge an irrelevancy. (Emphasis added.)
¶ 20 This court recognized in Elections Board v. Wisconsin Manufacturers & Commerce, 227 Wis.2d 650, 597 N.W.2d 721 (1999), that retroactive rulemaking—at least in the area of speech—is a violation of due process of law. This court said: "Because we assume that persons are free to...
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Green for Wisconsin v. State Elections Bd., 2006AP2452-OA.
...N.W.2d 750 2007 WI 45 GREEN FOR WISCONSIN and Mark Green, 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. April 25, 2007. The Court ......