State v. Fitzgerald
| Decision Date | 14 June 2011 |
| Docket Number | L.C No. 2011CV1244,No. 2011AP613-LV & 2011AP765-W,2011AP613-LV & 2011AP765-W |
| Parties | State of Wisconsin ex rel. Ismael R. Ozanne, Plaintiff-Respondent, v. Jeff Fitzgerald, Scott Fitzgerald, Michael Ellis and Scott Suder, Defendants, Douglas La Follette, Defendant-Petitioner-Movant. State of Wisconsin and State of Wisconsin ex rel. Michael D. Huebsch, Secretary of the Wisconsin Department of Administration, Petitioners, v. Circuit Court for Dane County, the Honorable Maryann Sumi Presiding, Ismael R. Ozanne, District Attorney for Dane County, Jeff Fitzgerald, Scott Fitzgerald, Michael Ellis, Scott Suder, Mark Miller, Peter Barca, Douglas La Follette, Joint Committee on Conference, Wisconsin State Senate and Wisconsin State Assembly, Respondents. |
| Court | Wisconsin Supreme Court |
State of Wisconsin ex rel. Ismael r. Ozanne Plaintiff-Respondent
v.
State of Wisconsin and State of Wisconsin ex rel.
v.
Circuit Court for Dane County, the Honorable
MaryAnn Sumi Presiding, Ismael r. Ozanne, District
Attorney for Dane County, Jeff Fitzgerald, Scott
Fitzgerald, Michael Ellis, Scott Suder, Mark
Miller, Peter Barca, Douglas La Follette, Joint
Committee on Conference, Wisconsin State Senate
and Wisconsin State Assembly Respondents.
For the Plaintiff-Respondent oral argument by Ismael R. Ozanne, Dane County District Attorney.
For the Defendant-Petitioner-Movant oral argument by Roger A. Sage, Roger Sage Law Office, Madison, WI.
For the petitioners oral argument by Kevin St. John, assistant attorney general.
For the respondents Dane County Circuit Court, Hon. MaryAnn Sumi, oral argument by Marie A. Stanton, Hurley, Burish & Stanton, Madison, WI.
For the respondents Dane County District Attorney, oral argument by Ismael R. Ozanne, Dane County District Attorney.
For the respondent Peter Barca, oral argument by Robert J. Jambois, Jambois Law office, Madison, WI.
For the respondent Mark Miller, oral argument by Lester A. Pines, Cullen, Weston, Pines & Bach, Madison, WI.
For the respondent Douglas La Follette, oral argument by Roger A. Sage, Roger Sage Law Office, Madison, WI.
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
STATE OF WISCONSIN IN SUPREME COURT
The Court entered the following order on this date:
¶1 This court has pending before it a certification by the court of appeals in a petition for leave to appeal a non-final order and accompanying motion for temporary relief in Case No. 2011AP613-LV (L.C #2011CV1244), pursuant to Wis. Stat. § (Rule) 809.61. The petition for leave to appeal a non-final order and motion arise out of a Dane County Circuit Court case in which Dane County District Attorney Ismael Ozanne alleged violations of the Open Meetings Law, Wis. Stat. § 19.81, et. seq. , in connection with the enactment of 2011 Wisconsin Act 10 (the Act), commonly known as the Budget Repair Bill;
¶2 This court also has pending before it a petition for supervisory/original jurisdiction pursuant to Wis. Stat. §§ (Rules) 809.70 and 809.71 in Case No. 2011AP765-W filed on behalf of the State of Wisconsin and State of Wisconsin ex rel. Michael D. Huebsch, Secretary of the Wisconsin Department of Administration; Peter Barca has moved to dismiss this petition; Mark Miller and Ismael Ozanne have moved to file supplemental briefs;
¶3 On June 6, 2011, this court held oral argument in Case No. 2011AP765-W and Case No. 2011AP613-LV; wherein this court heard argument addressing whether the court should accept either the certification or the petition for supervisory/originaljurisdiction or both; the court also heard argument on the merits of the pending matters. Based on the written submissions to the court and the oral arguments held on June 6, 2011;
¶4 IT IS ORDERED that the certification and motions for temporary relief in Case No. 2011AP613-LV are denied.
¶5 IT IS FURTHER ORDERED that the petition for original jurisdiction in Case No. 2011AP765-W is granted, State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983), and all motions to dismiss and for supplemental briefing are denied.
¶6 IT IS FURTHER ORDERED that all orders and judgments of the Dane County Circuit Court in Case No. 2011CV1244 are vacated and declared to be void ab initio. State ex rel. Nader v. Circuit Court for Dane Cnty., No. 2004AP2559-W, unpublished order (Wis. S. Ct. Sept. 30, 2004) (wherein this court vacated the prior orders of the circuit court in the same case).
¶7 This court has granted the petition for an original action because one of the courts that we are charged with supervising has usurped the legislative power which the Wisconsin Constitution grants exclusively to the legislature. It is important for all courts to remember that Article IV, Section 1 of the Wisconsin Constitution provides: "The legislative power shall be vested in a senate and assembly." Article IV, Section 17 of the Wisconsin Constitution provides in relevant part:
¶8 In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943) , the court focused on fundamental separation of powers principles and addressed whether a court has the power to enjoin publication of a bill duly enacted by the legislature. The court first explained that "governmental powers are divided among the three departments of government, the legislative, the executive, and judicial." Id. at 466-67. The court then explained that the Id. at 467. The court held that "[b]ecause under our system of constitutional government, no one of the co-ordinate departments can interfere with the discharge of the constitutional duties of one of the other departments, no court has jurisdiction to enjoin the legislative process at any point." Id. at 468. The court noted that Id.
¶9 Although all orders that preceded the circuit court's judgment in Case No. 2011CV1244 may be characterized as moot in some respects, the court addresses whether a court can enjoin publication of a bill. The court does so because whether a court can enjoin a bill is a matter of great public importance and also because it appears necessary to confirm that Goodlandremains the law that all courts must follow. State v. Cramer, 98 Wis. 2d 416, 420, 296 N.W.2d 921 (1980) (). Accordingly, because the circuit court did not follow the court's directive in Goodland, it exceeded its jurisdiction, invaded the legislature's constitutional powers under Article IV, Section 1 and Section 17 of the Wisconsin Constitution, and erred in enjoining the publication and further implementation of the Act.
¶10 Article IV, Section 17 of the Wisconsin Constitution vests the legislature with the constitutional power to "provide by law" for publication. The legislature has set the requirements for publication. However, the Secretary of State has not yet fulfilled his statutory duty to publish a notice of publication of the Act in the official state newspaper, pursuant to Wis. Stat. § 14.38(10)(c). Due to the vacation of the circuit court's orders, there remain no impediments to the Secretary of State fulfilling his obligations under § 14.38 (10) (c) .
¶11 IT IS FURTHER ORDERED that we have concluded that in enacting the Act, the legislature did not employ a process that violated Article IV, Section 10 of the Wisconsin Constitution, which provides in relevant part: "The doors of each house shall be kept open except when the public welfare shall requiresecrecy." The doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act. The doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public. WisconsinEye broadcast the proceedings live. Access was not denied.1 There is no constitutional requirement that the legislature provide access to as many members of the public as wish to attend meetings of the legislature or meetings of legislative committees.
¶12 It has been argued to the court that the legislature amended Article IV, Section 10 of the Wisconsin Constitution by its enactment of the Open Meetings Law. That argument is without merit. Article XII, Section 1 of the Wisconsin Constitution establishes the requirements that must be met in order to amend the Wisconsin Constitution through action initiated in the legislature. Article XII, Section 1 requires that both houses of the legislature pass the proposed amendment in two successive sessions of the legislature, and then the proposed amendment must be submitted to the people. It is only when the people have approved and ratified a proposed amendment initiated in the...
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Adams v. State, 2009AP608
...199 Wis. 2d at 665)). 10. Similar challenges have been made to Justice Gableman's participation in State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436; State v. Circuit Court for Dane County, No. 2011AP765-W (consolidated with Ozanne); and Clinard v. Brennan, 2011......