Ordinarily, high courts decide appeals. Occasionally, however, they decide cases in the first instance. Sometimes, the mere uncertainty of the answer to a legal question causes irreparable harm. Cases presenting these kinds of questions are like untreated wounds, which fester over time. The longer the case goes without a final resolution, the more damage occurs. High courts are justified in exercising original jurisdiction to treat these figurative wounds.
2020 was not an ordinary year. The outbreak of COVID-19 and the presidential election caused numerous legal issues. In turn, the Wisconsin Supreme Court was inundated with petitions for leave to commence an original action.1 This inundation has raised questions regarding the scope of the court’s original jurisdiction and whether it can be limited by statute.2
This article explains that the scope of the Wisconsin Supreme Court’s original jurisdiction is extraordinarily broad and cannot be limited by statute. Furthermore, it suggests that the court’s original jurisdiction helps it serve the public.
The Court’s Original Jurisdiction Is Extraordinarily Broad
Article VII, section 3(2) of the Wisconsin Constitution prescribes the Wisconsin Supreme Court’s subject-matter jurisdiction. Section 3(2) states: “The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.”
Skylar Reese Croy, U.W. 2019, is the interim legal advisor to the Director of State Courts, in Madison. Previously, he served as executive assistant to Wisconsin Supreme Court Chief Justice Patience Drake Roggensack and as her law clerk. The opinions expressed in this article are solely the author’s and are not necessarily those of the Director, Justice Roggensack, or any other member of the court. Get to know the author: Check out Q&A below.
The plain language of Article VII, section 3(2) indicates the incredible breadth of the Wisconsin Supreme Court’s original jurisdiction. Indeed, the text of section 3(2) does not place any limits on it. All section 3(2) says on the topic is that “[t]he supreme court … may hear original actions and proceedings.” As indicated by the use of the word “may,” the Wisconsin Supreme Court has “absolute discretion” in determining whether to grant a petition for leave to commence an original action.3 In one case, the court said that its original jurisdiction is “clearly plenary.”4 A professor at Marquette University Law School has described the court’s original jurisdiction as “practically unlimited in scope.”5
Article VII, section 3(2) confers significantly broader original jurisdiction than has been conferred on other high courts. For example, Article III, section 7 of the U.S. Constitution provides: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the [U.S.] supreme Court shall have original Jurisdiction.” The plain language of this clause indicates that the U.S. Supreme Court has original jurisdiction only if a particular party (for example, an ambassador) is involved in the case. In contrast, Article VII, section 3(2) contains no language limiting the scope of the Wisconsin Supreme Court’s original jurisdiction.
The Court’s Original Jurisdiction Cannot Be Limited by Statute
Several sources support the proposition that the Wisconsin Supreme Court’s original jurisdiction cannot be limited by statute. Recently, in separate writings, several justices have reached this conclusion,6 and no majority opinion says otherwise.7 For example, Justice Rebecca Grassl Bradley wrote in a dissent: “No statute … can circumscribe the constitutional jurisdiction of the Wisconsin Supreme Court to hear this (or any) case as an original action. ‘The Wisconsin Constitution IS the law – and it reigns supreme over any statute.’”8
Precedent supports that the Wisconsin Supreme Court’s original jurisdiction cannot be limited by statute. More than one century ago, the court concluded that “there can be no legislative extension or limitation” of its constitutionally prescribed subject-matter jurisdiction.9 The court continued, “[a] legislative enactment, so far as it purports to do that, is to that extent manifestly void.”10
More recently, the Wisconsin Supreme Court has indicated analogous skepticism toward attempts to limit the subject matter jurisdiction of the circuit court, which is particularly relevant because the text of the Wisconsin Constitution suggests that the Wisconsin Supreme Court has even broader original jurisdiction. In the 2020-21 term, the Wisconsin Supreme Court concluded that the circuit court “is never without subject matter jurisdiction.”11
In the early 2000s, the Wisconsin Supreme Court similarly concluded, “no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever.”12 It also stated, “the subject matter jurisdiction of the circuit courts cannot be curtailed by statute.”13 Notably, the court has concluded otherwise but only on rare occasions and only because the text of the Wisconsin Constitution seems to allow it.14
Other provisions of Article VII of the Wisconsin Constitution also provide evidence that the Wisconsin Supreme Court’s original jurisdiction cannot be limited by statute. Section 3 is titled “Supreme court: jurisdiction.” Nowhere in section 3 is there any mention of the legislature.
In contrast, Article VII, section 5(3), which establishes the Wisconsin Court of Appeals’ subject matter jurisdiction, provides, in relevant part: “The appeals court shall have such appellate jurisdiction in the district, including jurisdiction to review administrative proceedings, as the legislature may provide by law….” (Emphasis added.) Similarly, section 8, which is titled “Circuit court: jurisdiction,” provides, in relevant part: “Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by law.” (Emphasis added.)
Other provisions of Article VII of the Wisconsin Constitution also provide evidence that the Wisconsin Supreme Court’s original jurisdiction cannot be limited by statute.
With regard to the “[e]xcept as otherwise provided by law” language, the Wisconsin Supreme Court has stated: “It does not permit the legislature to divest the constitutional grant of jurisdiction from the unified court system …. [T]he legislative authority to reallocate judicial power and to transfer it from one court to another could not abrogate the court system’s powers.”15 This statement is yet another example of skepticism toward jurisdiction stripping – if the legislature wants to strip the circuit court of jurisdiction, the legislature might have to vest it somewhere else.
Consistent with canons of construction, these differences in language should be given weight.16
The history of Article VII, section 3(2) confirms that the Wisconsin Supreme Court’s original jurisdiction cannot be limited by statute. For context, section 3, as originally enacted in 1848, read: “The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, but in no case removed to the supreme court shall a trial by jury be allowed. The supreme court shall have a general superintending control.”17 The language presently found in section 3(2) came by way of an amendment in 1977.
In 1973, a member of the Wisconsin Assembly proposed an amendment to Article VII, section 3 that would have explicitly empowered the legislature to prescribe the Wisconsin Supreme Court’s subject matter jurisdiction:
“Section 3. The supreme court, except in cases otherwise provided in this constitution, shall have appellate jurisdiction
only which shall be coextensive with throughout the state; but in no case removed to the supreme court shall trial by jury be allowed. The legislature shall by law prescribe the jurisdiction of the supreme court.”18
The proposed amendment failed. Just two years later, in 1975, the language that became the 1977 amendment was proposed in the legislature.19
The difference in language between the failed 1975 proposal and the 1977 amendment is no coincidence. William A. Bablitch, who later became a Wisconsin Supreme Court justice, served in the Wisconsin Senate from 1972 to 1983. In a 1998 interview, he stated:
“[O]ur Supreme Court was unanimous, nearly unanimous, in terms of what the jurisdiction of the court should be, etc. You look at other courts today … and the Legislature almost invariably from state to state has forced certain cases upon the Supreme Court; whether in Minnesota, for instance, the Supreme Court has to hear all worker’s compensation claims, things of that sort. And our court was quite unanimous in that the Supreme Court should be able to exercise its own jurisdiction.”20
As Justice Bablitch explained, the justices were concerned that the legislature would interfere with the exercise of the court’s subject matter jurisdiction. They lobbied for and received near-total control.21
The legislature knew how to draft language that – if ratified by the people of Wisconsin – would have given it the power to limit the Wisconsin Supreme Court’s subject matter jurisdiction. The legislature’s deliberate choice to use different language must be given effect.22
In summary, the Wisconsin Supreme Court has extraordinarily broad original jurisdiction that cannot be limited by statute.
Broad Original Jurisdiction Helps the Court Serve the Public
The Wisconsin Supreme Court’s broad original jurisdiction is beneficial. In 1874, the Wisconsin Supreme Court explained: “[T]he purpose of the constitution was, to make this court indeed a supreme judicial tribunal over the whole state; … a court of first resort on all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.”23
2020 saw the rise of numerous legal issues affecting the people’s liberties. For example, the Wisconsin Supreme Court exercised its original jurisdiction in Wisconsin Legislature v. Palm.24 To control the outbreak of COVID-19, the Secretary-designee of the Department of Health Services (DHS), Andrea Palm, issued a “Safer at Home Order.”25 A violation of the order’s mandates, according to the order, subjected the violator to criminal penalties.26 Secretary-designee Palm had made clear that such mandates would continue until she believed that they were no longer necessary.27
The Wisconsin Supreme Court concluded that 1) almost all of the order was an unpromulgated rule, and 2) Secretary-designee Palm exceeded her statutory authority. Almost all of the order was, therefore, “unlawful, invalid, and unenforceable.”28
But these conclusions are not what is important for the purposes of this article. What matters is the court’s rationale for exercising its original jurisdiction: “The dispute in this case involves whether the Secretary-designee of DHS issued an order in violation of the laws of Wisconsin – an order that impacts every person in Wisconsin, as well as persons who come into Wisconsin, and every ‘non-essential’ business. Exercising original jurisdiction is appropriate in this dispute.”29 Secretary-designee Palm had, allegedly, issued an unlawful order that significantly impacted millions of people. As Chief Justice Patience Drake Roggensack explained in a different case: “[W]hen it is presented to us that fundamental personal liberty is suppressed by an unelected official, we must act. Waiting until the matter proceeds through a circuit court and the court of appeals will be justice denied.”30 The people had a “right to know” – definitively and as soon as practicable – whether the Safer at Home Order was illegal.31
Imagine if Palm had gone to the circuit court first, instead of the Wisconsin Supreme Court. A week after the case is filed, the circuit court strikes some parts of the order but not others. At the same time that the case is on appeal, Secretary-designee Palm amends parts of the order in response to emerging scientific data. Some parts of the circuit court’s declaration are upheld by the court of appeals, some are not. The case finally reaches the Wisconsin Supreme Court after a month or so. A week or two later, the Wisconsin Supreme Court renders a final decision. Similar lawsuits have been filed during the case’s pendency.
In this scenario, during the several weeks before a final resolution, what happened? The public heard conflicting guidance regarding the state of the law, creating chaos and confusion. Perhaps worse, public health officials struggled to craft orders to combat a serious pandemic because they were subjected to conflicting court decisions, each coming from a judge or panel of judges with a different understanding of the law. As two law professors recently argued, “robust judicial review not only helps to smoke out pretext for government actions during an emergency, but also has value for the government – which can use the case law its policies generate to help define the boundaries of its future approaches.”32
Had the Wisconsin Supreme Court declined to exercise its original jurisdiction in Palm and instead the dispute was first heard in the circuit court, irreparable harm would have resulted from the delay. A speedy resolution, and one with clarity and finality, was in the public’s best interest. Palm is an example of the Wisconsin Supreme Court fulfilling its “institutional responsibilities.”33
Ideally, each case should follow normal appellate procedures, that is, cases should not be heard in the first instance by a high court. But the world is not perfect. Norms established to handle ordinary cases should be cautiously applied to unusual cases. That is the essence of the rationale behind the Wisconsin Supreme Court’s extraordinarily broad original jurisdiction.34
In conclusion, the Wisconsin Supreme Court has broad original jurisdiction. Its original jurisdiction cannot be limited by statute. The court’s broad original jurisdiction, when exercised properly, provides a safeguard against the deprivation of the people’s liberty and ensures that the court can properly fulfill its institutional responsibilities.
» Cite this article: 94 Wis. Law. 30-34 (July/Aug 2021).
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1 Gymfinity Ltd. v. Dane Cnty., No. 2020AP1927-OA, unpublished dispositional order, at 1 (Wis. Dec. 22, 2020) (Roggensack, C.J., dissenting from denial of petition for leave to commence an original action).
2 E.g.,Governor Tony Evers’ Opp’n to Pet. for Original Action, at 7, Trump v. Evers, No. 2020AP1971-OA, unpublished dispositional order (Wis. Dec. 3, 2020); see also Katelyn Ferral, The Outlier: Brian Hagedorn Explains Why He Breaks Rank with Other State Supreme Court Conservatives, Cap. Times (Dec. 24, 2020), https://tinyurl.com/2xzprmsp.
3 See William A. Bablitch, Court Reform of 1977: The Wisconsin Supreme Court Ten Years Later, 72 Marq. L. Rev. 1, 18-19 (1988) (quoting interview with Chief Justice Nathan S. Heffernan, Wisconsin Supreme Court, in Madison, Wis. (Jan. 11, 1988)).
4 State ex rel. Swan v. Elections Bd., 133 Wis. 2d 87, 93, 394 N.W.2d 732 (1986) (per curiam).
5 Jay E. Grenig, 1 Wisconsin Pleading and Practice Forms § 2:34 (2020).
6 Wisconsin Voters Alliance v. Wisconsin Elections Comm’n, No. 2020AP1930-OA, unpublished dispositional order, at 5 (Wis. Dec. 4, 2020) (Roggensack, C.J., dissenting from denial of petition for leave to commence original action); Trump, No. 2020AP1971-OA, at 3 (Wis. Dec. 3, 2020) (Roggensack, C.J., dissenting from denial of petition for leave to commence original action); Trump, No. 2020AP1971-OA, at 5-6 (Rebecca Grassl Bradley, J., dissenting from denial of petition for leave to commence original action).
7 Justice Brian Hagedorn, in a concurrence to a denial for leave to commence an original action, which no one joined, implied that the Wisconsin Supreme Court could be made incompetent by statute. Trump, No. 2020AP1971-OA, at 2 & n.2 (Hagedorn, J., concurring with denial of petition for leave to commence original action). Competence is different than subject matter jurisdiction. As a recent article in the Wisconsin Lawyer summarizes, “[c]ompetency refers to whether a court can adjudicate the specific case before it; subject matter jurisdiction refers to whether a court can adjudicate the kind of case before it.” Douglas James Hoffer, Threshold Issues in State Court Civil Litigation, Wis. Law., Jan. 2019, www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?volume=92&issue=1&articleid=26780. Intriguingly, Justice Hagedorn did not cite any opinion of the Wisconsin Supreme Court that says that it can be made incompetent by statute. The only case he cited discusses competency with respect to the circuit court. Trump, No. 2020AP1971-OA, at 2 n.2 (citing Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶ 9-10, 273 Wis. 2d 76, 681 N.W.2d 190.). Perhaps this is why he couched the limits of his implication by stating, “[t]he constitution would obviously override these legislative choices where the two conflict.” Id.
8 Trump, No. 2020AP1971-OA, at 5-6 (Rebecca Grassl Bradley, J., dissenting from denial of petition for leave to commence original action) (quoting Wisconsin Legis. v. Palm, 2020 WI 42, ¶ 67 n.3, 391 Wis. 2d 497, 942 N.W.2d 900 (Rebecca Grassl Bradley, J., concurring)).
9 Seiler v. State, 112 Wis. 293, 299, 87 N.W. 1072 (1901).
10 Id. at 300 (citing Klein v. Valerius, 87 Wis. 54, 57 N.W. 1112 (1894)).
11 State v. Hinkle, 2019 WI 96, ¶ 2 n.4, 389 Wis. 2d 1, 935 N.W.2d 271 (quoting Mikrut, 2004 WI 79, ¶ 1, 273 Wis. 2d 76).
12 Mikrut, 2004 WI 79, ¶ 8, 273 Wis. 2d 76 (quoting Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790 (1982)).
14 State ex rel. CityDeck Landing LLC v. Circuit Ct. for Brown Cnty., 2019 WI 15, ¶¶ 32-36, 385 Wis. 2d 516, 922 N.W.2d 832 (concluding that circuit court did not have subject matter jurisdiction to stay arbitration proceeding); cf. In re Bush, 2005 WI 103, ¶ 17, 283 Wis. 2d 90, 699 N.W.2d 80 (indicating that circuit court could lack subject matter jurisdiction if proceeding is premised on facially unconstitutional statute).
15 In re Eberhardy, 102 Wis. 2d 539, 550, 307 N.W.2d 881 (1981).
16 See generally State ex rel. Swan v. Elections Bd., 133 Wis. 2d 87, 394 N.W.2d 732 (1986) (per curiam) (examining differences in language in Article VII of the Wisconsin Constitution).
17 Wis. Const. art. VII, § 3 (1848).
18 1973 Wis. Assemb. J. Res. 5.
19 1975 Wis. J. Res. 13.
20 4 Justice in Their Own Words: An Oral History of the Wisconsin Courts 16 (1998) (statement of William A. Bablitch) (on file with the Wisconsin State Law Library).
21 See also Bablitch, supra note 3, 18-19.
22 Cf. State v. Hall, 207 Wis. 2d 54, 89, 557 N.W.2d 778 (1997) (“Obviously, the legislature knew how to immunize dealers under Wis. Stat. § 139.91 from direct and derivative use, yet chose different language. Consequently, we arrive at the inevitable conclusion that the legislature knew how to craft a confidentiality provision prohibiting derivative use, yet deliberately chose not to do so.”).
23 Attorney Gen. v. Chicago & N.W. Ry., 35 Wis. 425, 518 (1874) (citing Attorney Gen. v. Blossom, 1 Wis. 317 (1853)).
24 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900.
25 Id. ¶ 7.
27 Id. ¶¶ 7-8, 27.
28 Id. ¶¶ 58-59 & n.21.
29 Id. ¶ 11.
30 Gymfinity Ltd. v. Dane Cnty., No. 2020AP1927-OA, unpublished dispositional order, at 1 (Wis. Dec. 22, 2020) (Roggensack, C.J., dissenting from denial of petition for leave to commence original action).
31 Cf. Hawkins v. Wisconsin Elections Comm’n, 2020 WI 75, ¶ 14, 393 Wis. 2d 629, 948 N.W.2d 877 (Roggensack, C.J., dissenting from denial of petition for leave to commence original action).
32 Lindsay F. Wiley & Stephen I. Vladeck, Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial Review, 133 Harv. L. Rev. Forum 179, 183 (2020).
33 Wis. S. Ct. IOP III (2019).
34 State ex rel. Nader v. Circuit Ct. for Dane Cnty., No. 2004AP2559-W, unpublished dispositional order, ¶ 2 (Wis. Sept. 30, 2004) (Butler, J., concurring with order granting leave to commence original action) (explaining that normal “appellate procedures” are important but that the Wisconsin Supreme Court should favor reaching “a fair and just decision” if circumstances hinder the ability for compliance with such procedures).