Vol. 71, No.
5, May 1998
Letters
Lapsing of CCAP funds found constitutional
This is an update to our February article "Wisconsin's
Voyage to Computerized Courts." The article discussed Flynn
v. Dep't of Admin., which was then pending in the Wisconsin Supreme
Court. On March 13, 1998, the supreme court issued an opinion, which reversed
the decision of Judge Mark Frankel of the Dane County Circuit Court.
As background, in 1989 the Wisconsin Legislature created an appropriation
to fund a circuit court automation program (CCAP) to computerize information
processing in Wisconsin courts. A few years later, the Legislature passed
1993 Wis. Act 16, section 9253, which lapsed nearly $3 million earmarked
for CCAP into the state's general fund. This loss of funds hampered efforts
to computerize Wisconsin courts.
In 1995 Judge Flynn of the Racine County Circuit Court filed a lawsuit
on behalf of all court users requesting a declaratory judgment that Act
16 was unconstitutional. Judge Frankel found that the Act violated fundamental
public policy grounded in the constitution and therefore ordered the Department
of Administration to return the lapsed funds to the courts. The Department
sought appellate review of the decision, and the supreme court accepted
the challenge.
The case put the supreme court on the horns of an interesting dilemma.
On the one hand, it had a vested interest in protecting funds for the computerization
of Wisconsin courts. On the other hand, the court has long held that it
is the Legislature's prerogative to determine public policy and allocate
funds in accordance with it.
Sensing perhaps the awkwardness of serving as both judge and potential
beneficiary of this lawsuit, Justice Bablitch, representing the majority,
wrote:
"The power of this court to declare invalid duly enacted legislation
is an awesome one. It is a power that is largely unchecked, most always
final. If we are to maintain the public's confidence in the integrity and
independence of the judiciary, we must exercise that power with great restraint,
always resting on constitutional principles, not judicial will. We may differ
with the legislature's choices, as we did and do here, but must never rest
our decision on that basis lest we become no more than a super-legislature.
... The question is not what policy we prefer, but whether the Legislature's
choice is consistent with constitutional restraints. We find that it is
in this case." (Flynn v. Dep't of Admin., 1998 WL 107966 at
* 1 (1998).)
The court resisted the urge to rule in its own favor, but it did not
pass at the opportunity to chastise the Legislature. Justice Bablitch called
section 9253 "penny-wise and pound foolish" as well as a "poor
management choice." He recognized that the Legislature's lapsing of
$3 million posed a burden to CCAP, but the program had continued to receive
funds. As a result, Justice Bablitch lamented that the courts' computerization
needs would not be met as "sufficiently, economically, efficiently
or conveniently" as they would have liked.
Colleen D. Ball & R. Timothy Muth
Milwaukee
Just admit you blew it ...
I read the February article "Breaking
Up Is Hard To Do," and the Domnitz
letter and your editorial response in the March issue. You should put
some starch in your shorts and admit you blew it. It is unconscionable that
the Wisconsin Lawyer would print such unflattering statements about
a respected law firm in a statewide publication without first contacting
that firm and giving it a chance to comment. It is particularly distressing
because it sends the message that while the State Bar apparently believes
clients should have the right to confront accusers, our members do not.
You compounded your conduct by refusing to apologize when you were justifiably
called on the carpet. To say that the article "portrayed all concerned
in a positive light" proves that your ability to read is equal to your
sense of fairness. Shame on you.
Patrick O. Dunphy
Brookfield
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