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    Wisconsin Lawyer
    May 01, 1998

    Wisconsin Lawyer May 1998: Letters to the Editor

     


    Vol. 71, No. 5, May 1998

    How to Submit a Letter to the Editor

    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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