State ex rel. Swan v. Elections Bd.

• Decision Date: 16 October 1986
• Docket Number: Nos. 84-1344-,84-1345-W,s. 84-1344-
• Citation: 133 Wis.2d 87,394 N.W.2d 732
• Parties: STATE ex rel. Monroe SWAN, Petitioner, v. ELECTIONS BOARD, an independent agency of the State of Wisconsin, Gary J.N. Aamodt, in his official capacity as Chairman of the Elections Board, and Kevin Kennedy, in his official capacity as Executive Director of the Elections Board, Respondents-Petitioners.
• Court: Wisconsin Supreme Court

Page 732

394 N.W.2d 732

133 Wis.2d 87

STATE ex rel. Monroe SWAN, Petitioner, v. ELECTIONS BOARD, an independent agency of the State of Wisconsin, Gary J.N. Aamodt, in his official capacity as Chairman of the Elections Board, and Kevin Kennedy, in his official capacity as Executive Director of the Elections Board, Respondents-Petitioners.

Nos. 84-1344-W, 84-1345-W.

Supreme Court of Wisconsin.

Oct. 16, 1986.

William H. Wilker, Asst. Atty. Gen., Bronson C. La Follette, Atty. Gen., for Elections Bd.

Mark F. Borns and Richard B. Jacobson, Madison, for Monroe Swan.

David L. Walther, Patricia L. Grove and Walther & Halling, Milwaukee, for amicus curiae.

The following order was filed on August 29, 1984:

"A petition for review pursuant to sec. 808.10, Stats., having been filed on behalf of respondents-petitioners Elections Board, Gary J.N. Aamodt, and Kevin Kennedy, and considered by the court,

"And the court having determined that the court of appeals had no original jurisdiction to issue a prerogative writ in this matter, in the absence of appellate or supervisory jurisdiction,

"And the court being evenly divided as to whether to take original jurisdiction pursuant to the request of Monroe Swan, Chief Justice Heffernan, Justice Shirley S. Abrahamson and Justice Steinmetz being of the opinion that original jurisdiction should be exercised, Justice Day, Justice Callow, and Justice Ceci being of the opinion it should not, and Justice William A. Bablitch taking no part,

"IT IS ORDERED that the decision of the court of appeals is vacated and the petition for review is dismissed.

"IT IS FURTHER ORDERED that all orders of the court of appeals prior to its decision in this matter are dissolved, and the petition for original jurisdiction filed in the court of appeals is dismissed. An opinion explaining the reasons for this order will be filed at a later date.

"SHIRLEY S. ABRAHAMSON, J. (dissenting). On the basis of the language of art. VII, sec. 5(3), Wis. Const., and the briefs submitted, I conclude at this time, as did the court of appeals, that the court of appeals had jurisdiction. I would grant the petition for review.

"WILLIAM A. BABLITCH, J., did not participate."

PER CURIAM.

The Elections Board has petitioned for review of a decision of the court of appeals directing it to certify Monroe Swan as a candidate for the Democratic Party nomination for state senator from the 6th senate district at the September 1984 primary election. We have concluded that the court of appeals did not have jurisdiction over this action. So concluding, by order dated August 29, 1984, we have vacated the decision of the court of appeals and dismissed the petition for review. This opinion explains our reasons for that order.

This action was commenced in the court of appeals by Swan utilizing the procedure for commencing original actions in this court. The petition on behalf of Swan described a dispute between Swan and the staff of the Elections Board, which had denied certification of Swan as a candidate entitled to have his name placed on the ballot. The petition asked the court of appeals to exercise original jurisdiction because the matter was publici juris. The relief sought was a declaration that sec. 8.30(4), Stats., providing that the name of an unpardoned felon should not be placed on the ballot for state or local office, was unconstitutional. The petition asked that the finding of unconstitutionality be implemented by a writ of mandamus ordering the Elections Board to certify Swan, who had been convicted of two federal felonies and had served his sentence, as a candidate for state senator from the 6th senate district.

After the petition for original jurisdiction had been filed in the court of appeals, but before it had been ruled on, Swan petitioned this court for bypass of the court of appeals. Bypass was denied. The court of appeals then reached its decision purporting to exercise original jurisdiction and finding sec. 8.30(4), Stats., unconstitutional because it prescribed qualifications for the office of state senator in addition to those prescribed by the constitution. It also exercised its discretion to grant relief by mandamus. One judge of the court of appeals dissented from the decision to grant mandamus, but agreed with the decision on other issues.

When the board's petition for review of the decision of the court of appeals was filed, we raised sua sponte the question whether the court of appeals had jurisdiction of an original action and ordered the parties to brief the point. Our order of August 20, 1984, noted that the court of appeals had not been granted supervisory jurisdiction over the Elections Board and had not been granted direct appellate jurisdiction over the decisions of the board.

The parties briefed the jurisdictional issue pursuant to our order, and a brief amicus curiae was filed. The parties and the amicus curiae argued that the court of appeals had jurisdiction over this action. We are not persuaded.

Art. VII, sec. 5(3) of the Wisconsin Constitution provides as follows:

"The appeals court shall have such appellate jurisdiction in the district, including jurisdiction to review administrative proceedings, as the legislature may provide by law, but shall have no original jurisdiction other than by prerogative writ. The appeals court may issue all writs necessary in aid of its jurisdiction and shall have supervisory authority over all actions and proceedings in the courts in the district."

This provision grants the court of appeals supervisory jurisdiction over actions and proceedings in the circuit courts. It does not grant supervisory jurisdiction over matters pending before administrative bodies. In fact, the court of appeals has held in a well reasoned opinion that it has no supervisory jurisdiction over the chief judge of a judicial administrative district acting in his administrative capacity. State ex rel. Gilboy v. Circuit Court for Waukesha County, 119 Wis.2d 27, 349 N.W.2d 712 (Ct.App.1984).

Art. VII, sec. 5(3) permits the legislature to grant appellate jurisdiction to the court of appeals, including jurisdiction to review the decisions of administrative agencies. The legislature, however, has granted the court of appeals appellate jurisdiction only over the judgments and orders of circuit courts, sec. 808.03, Stats. Jurisdiction over an action to review the decision of an administrative agency is granted to the circuit court, sec. 227.16(1)(a), appeal from the final judgment of that court being to the court of appeals, sec. 227.21.

The question is whether art. VII, sec. 5(3) grants the court of appeals power to issue an original prerogative writ in cases where there is no basis for exercising its supervisory or appellate powers. Prior to the creation of the court of appeals this court recognized two uses of the prerogative writs. One use was to exercise superintending control or to facilitate appellate review. The other was to exercise original jurisdiction in cases raising questions publici juris. At one time the decided cases suggested that the circuit courts, which also had power to issue prerogative writs, did not have authority to use them as the vehicle for raising questions publici juris. However, in Petition of Heil, 230 Wis. 428, 284 N.W. 42 (1939), it was held that the jurisdiction of the circuit courts in such matters was concurrent with the supreme court, subject to exclusion if this court exercised its power to hear original actions.

The reference to prerogative writs in art. VII, sec. 5(3) is ambiguous. It might be taken to mean a pleading initiating an action to determine a question publici juris. That is how the parties and amicus curiae would have us construe it. It might also be taken to mean an application for relief by one of the traditional writs when supervisory or appellate jurisdiction exists and there is no other adequate remedy. That is how we construe it.

Being ambiguous, the language of art. VII, sec. 5(3) must be construed in the light of other constitutional provisions and the purpose behind creation of the court of appeals. Under the court reorganization plan of the constitutional revision in 1977, there are two levels of court with original jurisdiction. In addition to having appellate jurisdiction over all courts, the supreme court "may hear original actions and proceedings." Art. VII, sec. 3(2). Except as otherwise provided by law, the circuit courts have original jurisdiction in all civil and criminal matters. Art. VII, sec. 8. The court of appeals has appellate jurisdiction as provided by law, "but shall have no original jurisdiction other than by prerogative writ." (Emphasis supplied.) Art. VII, sec. 5(3). When the constitution grants original jurisdiction to the supreme court and the circuit courts, it does so not hedged about with the qualifications that are found in the constitution with respect to the court of appeals.

It is significant that the constitutional grant of power to the court of appeals is phrased differently than the grant to the supreme court. The supreme court's jurisdiction is clearly plenary, while the grant to the court of appeals is on its face something less: "The appeals court ... shall have no original jurisdiction other than by prerogative writ." This limitation is reflected in sec. 752.01(2), Stats., which provides, "The court of appeals has original jurisdiction only to issue prerogative writs." (Emphasis supplied.)

It should also be noted that the jurisdictional section, art. VII, sec. 5(3), of the constitution, by limiting the exercise of original jurisdiction to a prerogative writ, specifically precludes the possibility of bringing an original action in the court of appeals by declaratory judgment, the usual method of commencing an original action in this court or in the circuit court. There could hardly be stronger evidence that the original action jurisdiction of the court of appeals is...