Thursday, June 16, 2011

The Abrahamson / Bradley Dissent

The text of the judicial dissent to the majority holding for the plaintif and re-instating the collective bargaining "law" is below the fold.  Reminiscent of the 2001 United States Supreme Court ruling in Bush v Gore where a court took a political stand to enforce a desired political outcome (the election of Bush) over the judicial independence of the Florida court system.

Republican ends justify any Republican means, including the corruption of our judicial system.  At what point do we declare them a criminal syndicate and prosecute the whole lot of them?  The situation on the Wisconsin Supreme Court is more serious than anything that has come before in the fight for civil rights in our state.  Like the kangaroo courts of the Jim Crow south where no white man would ever be convicted of killing a black man, the Wisconsin Supreme Court now endorses any and all means necessary to achieve Republican ends.  For if the state courts are ultimately corrupt and citizens, for whatever reason, cannot seek redress through the Federal courts, Wisconsin will have become, at long last, the GOP Banana Republic of their dreams.

From the Wisconsin State Bar Association:


¶134 In addition to the procedural morass that the majority's terse, hasty order attempts to sweep under the rug, there are important legal issues pertaining to the merits of these cases that it fails to fully resolve. To explain just what these issues are, I first provide an overview of the legal landscape.

¶135 At the center of these matters, and at the heart of the Open Meetings Law, is the mandate in Wisconsin's constitution that "[t]he doors of each house shall be kept open except when the public welfare shall require secrecy."(17) The legislature enacted the Open Meetings Law, in part, to comply with this constitutional directive.(18)

¶136 Relevant to this case, the legislature required meetings of a "governmental body" be properly noticed and open to the public.(19) It also appeared to make it clear that these access and notice requirements apply to itself and its committees.(20) The legislature authorized the district attorney to prosecute violations.(21) And finally, it directed courts to enjoin or void actions taken in violation of the Open Meetings Law.(22)

¶137 It is this court's obligation to harmonize the existing precedent and to apply this explicit statutory language to give effect to the legislative intent. The core legal issues presented by this case are not as easily resolved as the majority's order suggests: (1) Are the Open Meetings Law's access or notice provisions as constitutionally based requirements enforceable against the legislature or its committees? (2) If so, is declaring an act void among the sanctions a court may impose regarding a legislative action taken in violation of this law? (3) Does a court have the authority to enjoin the publication, implementation, or effectiveness of an act, where some part of the legislative process was conducted in violation of the Open Meetings Law, but the act was passed by the legislature and signed by the governor? Instead, a review of precedent raises additional questions that the majority does not address.

¶138 In Goodland v. Zimmerman, this court provided that "the court has power to declare invalid an act of the legislature which contravenes constitutional provisions. That principle . . . is no longer open to debate."(23) However, we also stated that "[t]he judicial department has no jurisdiction or right to interfere with the legislative process."(24) In light of Goodland, may a court ever prevent the publication or implementation of an Act, or must it wait to void an Act until after it is published? What if the legislature chose to impose a check on itself, enforceable in court, and tied to its constitutional mandate to provide access? Can the court be said to invade the province of the legislature when the legislature has invited it into that process?

¶139 In State ex rel. La Follette v. Stitt, we stated that courts will not review or void an act of the legislature based on its failure to comply with its own procedural rules, unless those rules embody a constitutional requirement.(25) Consistent with this principle, we recently reviewed the validity of a legislative action based on a question of the legislature's compliance with a procedural statute that was tied to a constitutional requirement.(26) So a key question is: what part of the Open Meetings Law embodies a constitutional requirement? If any Open Meetings Law provisions that are tied to the constitution were violated in this case, was the circuit court permitted to void the act?(27)

¶140 All of these highly important questions, which define the respective authority and duty of the legislature and the courts, are left without complete answers and thorough discussion. These cases implicate this court's obligation to interpret, apply and develop the law. The tough questions raised by an examination of the relevant precedent could be resolved by a thoughtful application of the plain language of the Open Meetings Law to this precedent. Instead, the majority brushes these questions aside in its hasty decision and fails to fully examine our precedent. "Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts."(28) Justice Cardozo's admonition applies equally to deciding the substantive issues presented here as to choosing the best procedural way to accept these cases for review.


¶141 For both practical and institutional reasons, the right way to go about answering these weighty and significant questions would be for these issues to be presented to this court as a direct appeal of the final judgment entered by the circuit court for Dane County.

¶142 The practical reasons that a direct appeal makes the most sense are based on the desirability of deciding these issues with all the available information, and in the most focused and efficient way. They have to do with the nuts and bolts of the process of receiving cases for various types of review at this court. These matters did not come to us as a direct appeal of a judgment but rather through two separate methods: an appeal and certification of a temporary order and a rarely used process, a supervisory writ, provided by statute, both filed before the circuit court's findings, conclusions and judgment.

¶143 Due to the unusual posture, we have no access to the complete record that was compiled in the circuit court that included the transcripts of the days of testimony taken in the circuit court,(29) the exhibits entered into evidence, and the briefs filed there.(30) Many people would likely find it puzzling that under these circumstances we, the highest court in the state, cannot simply order up whatever information is needed from relevant court proceedings, especially since information on the testimony and evidence has been publicly disseminated, but statutes and rules prescribe the manner that cases proceed through the judicial system, and should be followed. Those procedures matter. When a case arrives before us in the posture of a direct appeal, and we grant the petition for review, certification or bypass,(31) we have access to all the information, evidence and arguments that have been presented to the court below to answer the questions presented. These cases did not arrive in that posture, and those boxes of documents, transcripts and evidence that we ordinarily review were not made available to us. When this court heard oral arguments on the question of whether to take these cases and in what manner, we heard arguments from counsel representing six parties for more than six hours. It is rather astonishing that the court would choose to decide to take and decide such an unusual and complex case without benefit of the complete record.

¶144 The ready availability of a direct appeal by aggrieved parties makes this all the more puzzling. The majority does not really come to grips with the obvious fact that an appeal is an available remedy here. As many of the parties to these cases have argued, it would be a simple matter for an aggrieved party to intervene in this matter and file an ordinary appeal, which would proceed the usual way.(32) This would have the added benefit of briefs and arguments solely focused on the merits of the substantive legal issues presented, what the heart of the case is really about, with the benefit of a complete record. It would be followed by the ordinary written decision fully explaining this court's analysis. And taking that path would, in addition, avoid creating unfortunate precedent; it would take the prudent approach, considering all the relevant evidence, and follow the way we handle many thorny issues that are presented to us: without rush or impatience or needless deviation from well-settled practice. For this very practical reason----having all the information that was presented in the circuit court for our review and being able to give the biggest questions presented our full attention----these matters, especially given the significant questions involved, would best be reviewed in the posture of a direct appeal.

¶145 But as compelling as those practical reasons are, the greater reason that a direct appeal is the best way is that it is the procedurally correct way ­ no shortcuts, no cut corners, no unnecessary invocation of rarely used powers. Let me be clear: taking this case as an original action [publici juris or supervisory authority] is not outside this court's power; it is just the wrong choice under these circumstances. These matters, after all, are at bottom about rules and procedures. It is about whether the legislature's stated intent to abide by the Open Meetings Law provisions, in accordance with constitutional requirements, can be enforced by way of voiding a law resulting from legislative meetings that did not comply with the law. These matters are about the integrity of the rules that one branch imposes on others and apparently on itself to govern procedures. Especially in light of the public focus and intense scrutiny we must not depart from the usual method of handling cases and employ a method that disposes of the issues with atypical speed and insufficient explanation. As this court stated, "The independence of the judiciary and the legitimate exercise of judicial discretion is necessary to maintain the balance of power among the branches of government. The judiciary is cognizant . . . that it must function within established rules and precedents to maintain public trust in the integrity of the judicial process."(33) That principle is aptly illustrated here. The high-profile nature of these matters only gives more force to the necessity of proceeding in a way that is least likely to undermine public confidence in the independence of the judiciary. There is not only no reason to depart from the preferred method of direct review, there are many reasons to prefer it.

¶146 Conversely, there are many infirmities in the alternatives that are argued by the State. There are two cases before us that we considered taking for review. I agree with the majority that one of them, the certification from the court of appeals concerning the issuance of a temporary restraining order in State ex rel. Ozanne v. Fitzgerald, is now moot, since a final judgment has been issued. Accepting the certification is therefore no longer an appropriate course of taking jurisdiction.(34) The petition for a supervisory writ is the wrong way, because our case law makes clear that if an appeal is an available remedy, a petition for a supervisory writ must fail.(35) As we stated in State ex rel. Kalal v. Circuit Court for Dane Cnty, "A supervisory writ 'is considered an extraordinary and drastic remedy that is to be issued only upon some grievous exigency.'"(36) We made clear in that case that "[a] petition for a supervisory writ will not be granted unless [among other things] an appeal is an inadequate remedy."(37) An appeal is a simple matter and is not an inadequate remedy in this case, especially given this court's power to take a directly appealed case from the court of appeals on its own motion.

¶147 These cases should not be converted into a petition for an original action and taken using our original jurisdiction for several reasons: there is nothing that merits the use of that power in this instance. Such an exercise brings more of the case than we need in order to answer the central issues and bogs us down with requiring resolution of the remaining disputed factual matters.(38) As I noted above, it is beyond dispute that this court has the power to exercise its authority and take an original action utilizing our original jurisdiction. But we exercise that extraordinary power only when we have a compelling reason to do so. There is no such reason in this case. The court in Petition of Heil took a very pragmatic and sensible approach and stated plainly the reason that taking original jurisdiction should be used sparingly and "on the basis of the nature of the issues involved rather than upon a mere consideration of convenience or expediency."(39) The Heil court urged that the system works best when the trial and appellate courts play the roles that they are designed to play:

This court is primarily an appellate court, and it should not be burdened with matters not clearly within its province if it is to discharge in a proper and efficient manner its primary function. Mere expedition of causes, convenience of parties to actions, and the prevention of a multiplicity of suits are matters which form no basis for the exercise of original jurisdiction of this court. Because it is the principal function of the circuit court to try cases and of this court to review cases which have been tried, due regard should be had to these fundamental considerations.(40)

¶148 "Because this court is not a fact-finding tribunal, it generally will not exercise its original jurisdiction in matters involving contested issues of fact."(41) There are mechanisms which have been utilized, such as appointment of a special master, perhaps a reserve judge, to conduct fact-finding under the continued jurisdiction/supervision of this court.(42) Comparing the use of such mechanisms to a direct appeal, such approaches are unwieldy and time-consuming. When this court takes original jurisdiction, it takes the whole tangled lot of issues and factual disputes just as if it were the trial court. Three of the parties, in their letter briefs to this court, claim that there are unresolved factual issues concerning the amount of alleged fiscal harm at stake, the rules under which the Senate and Assembly operate, the so-called "good cause" exception that permits a shorter meeting notice requirement, and the role of the secretary of state in the publication process. Clearly, it is not proper to recast the supervisory writ petition as one for an original action and to take original jurisdiction without resolving the claimed factual disputes presented. While I agree with the majority that Act 10 is not in effect, a full and complete resolution of the factual questions surrounding the appropriate procedure involving a matter such as publication needs to be set forth.


¶149 These cases exemplify the importance of compliance with procedural rules and the rule of law in maintaining the legitimacy of our government. Just as there is a right way and a wrong way to proceed with the legislative process, there is a right way and a wrong way to accept these issues for review. I dissent in part because, in taking these matters as an original action and swiftly vacating the circuit court's orders without sufficient examination the majority has proceeded in the wrong way.

¶150 I concur in part because I agree with the majority that it is imperative that this court address the weighty and complicated questions presented here. It is of great significance to the people of Wisconsin whether the legislature is required to follow the Open Meetings Law, which apparently it has tied to the Wisconsin Constitution, and if so, how it may be held accountable. It is important not only here where the Act at issue, 2011 Wisconsin Act 10, was hotly debated, but in every case where the legislature acts on behalf of the people. Those who would rush to judgment on these matters are essentially taking the position that getting this opinion out is more important than doing it right and getting it right. As this court recently stated and as the Honorable Maryann Sumi repeated in her decision in regard to those matters, "The right of the people to monitor the people's business is one of the core principles of democracy."(43) I also concur because I agree with the majority that Act 10 is not in effect, and that the certification and motions for temporary relief in case No. 2011AP613-LV should be denied.

¶151 Specifically, this case raises the following questions: (1) Is the Open Meetings Law(44) enforceable against the legislature and, if so, what sanctions are appropriate? (2) May a court ever void an Act because of an Open Meetings Law violation? (3) May a court prohibit the publication, implementation, or effectiveness of an Act passed in violation of the Open Meetings Law, or must a court wait until after the Act is published?

¶152 There is no question that these issues are worthy of this court's review. But procedures matter----to the courts, the legislature, and the people of Wisconsin. There is a right way to address these issues and a wrong way. The majority chooses the wrong way by refusing to take this case through the appropriate procedural mechanism, and by rushing to issue an order without sufficient examination or a complete record. I concur in part because I agree with the majority's decision to address these important questions. I dissent in part due to the majority's decision to utilize inappropriately this court's original jurisdiction and due to its issuing a hasty order without sufficient consideration, and without adequately addressing all of the parties' arguments. I am convinced that these significant issues should be addressed through a direct appeal, which would allow this court to more fully resolve, with the benefit of a complete record, the complex legal and factual issues at stake.

¶153 For these reasons, I respectfully concur in part and dissent in part.

¶154 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice ANN WALSH BRADLEY join this concurrence/dissent.

1 The transcripts of the hearings before the circuit court were filed with this court as part of the appendices accompanying the various motions and petitions filed herein.

2 All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.

3 This case came to the court at the end of March. Thereafter, the court issued two separate orders asking the parties to address numerous questions. We held extended oral argument on June 6 presented by six parties.

4 Wis. Stat. § 19.81 (3): "In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with [the Open Meetings Law]."

5 The District Attorney and Senator Miller assert that the Attorney General is attacking the constitutionality of the Open Meetings Law by asserting that the court cannot enforce the Law against the legislature. In other words, the Attorney General is arguing that the Open Meetings Law is categorically invalid with regard to the legislature. For a discussion of a categorical attack on the constitutionality of a statute, see State v. Ninham, 2011 WI 33, ___ Wis. 2d ___, 797 N.W.2d 451. The Attorney General does not have the general authority to attack the constitutionality of the statute, without statutory authorization from the legislature or some other constitutional or common-law doctrine giving the Attorney General such authority. State v. City of Oak Creek, 2000 WI 9, ¶33, 232 Wis. 2d 612, 605 N.W.2d 526.

6 Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348-49 (7th Cir. 2006).

7 As other courts have admonished, reasoned judgment is especially needed "when a judicial decision accedes to the requests of a coordinate branch, lest ignorance of the basis for the decision cause the public to doubt that 'complete independence of the courts of justice [which] is peculiarly essential in a limited Constitution.'" United States v. Aref, 533 F.3d 72, 83 (2d Cir. 2008).

8 The Federalist Papers, written in 1787-88, were drafted to promote ratification of the United States Constitution. They remain a significant primary source for constitutional interpretation.

9 See Wis. Const. art. VII, § 3(2): "The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings."

10 Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin § 25.1 (5th ed. 2011). See also Petition of Heil, 230 Wis. 428, 446, 284 N.W. 42 (1938); In re Exercise of Original Jurisdiction, 201 Wis. 123, 229 N.W. 643 (1930).

This case is not an original action in any sense of the phrase. The Dane County Circuit Court has already issued a final determination regarding each and every question of fact and question of law that is addressed in the order.

11 A petition for an original action will be granted when the questions presented are of such importance "to call for a speedy and authoritative determination by this court in the first instance . . . ." Petition of Heil, 230 Wis. 428, 446, 284 N.W. 42 (1939).

This court has previously taken original jurisdiction in two cases despite an identical case pending before the circuit court. In both cases the issue was narrow and an emergency existed with no other remedy available; an appeal could not be taken timely to get the person on the ballot within the statutory framework for printing ballots; review was necessary to protect Wisconsin citizens' right to vote for the candidate of their choosing. See State of Wisconsin ex rel. Nader v. Circuit Court for Dane County, No. 2004AP2559-W, unpublished order (2004); State ex rel. Barber v. Circuit Court for Marathon County, 178 Wis. 468, 190 N.W. 563 (1922).

In the present case, there is no such exigency. First, the issues presented raise fundamental constitutional principles relating to the powers of the executive, legislative, and judicial branches of government, as well as questions regarding the scope of the rights of the people of this State to know about the actions taken by their government and their right to access the legislative process. The issues are not narrow, and the issues involve conflicting precedent.

Second, there is no "emergency." The Attorney General asserts that an emergency exists because each day the alleged breach of separation of powers is not resolved irreparable damage is done to the representative government of this State. But if that assertion meets the definition of "emergency," then any time any party asserts that a law or an action is unconstitutional it would constitute an "emergency" for this court to decide. That's not the law of the state or country.

The "ordinary course" of an appeal could afford the petitioners any warranted relief. In the alternative, the legislature could pass the Budget Repair Bill in conformance with the Open Meetings Law, rendering the circuit court's determinations ineffective. This court could still decide the important separation of powers issues presented.

12 Press coverage is not necessarily the equivalent of allowing the public to be present. Cf. Douglas v. Wainwright, 714 F.2d 1532, 1542-43 (11th Cir. 1983), vacated, 468 U.S. 1206 (1984), adhered to on remand, 739 F.2d 531 (11th Cir. 1984) (relating to the constitutional guarantee of a public trial).

13 See State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 364, 338 N.W.2d 684 (1983) (A court "will not intermeddle in what we view, in the absence of constitutional directives to the contrary, to be purely legislative concerns . . . . [C]ourts generally consider that the legislature's adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution" (emphasis added).).

See State ex rel. Lynch v. Conta, 71 Wis. 2d 662, 695, 239 N.W.2d 313 (1976), in which the court was asked to enforce an earlier version of the Open Meetings Law. The court observed that the "time-honored precept, established in Marbury v. Madison, [provides that] the judiciary may review the acts of the legislature for any conflict with the Constitution" (emphasis added).

As early as McDonald v. State, 80 Wis. 407, 411-12, 50 N.W. 185 (1891), substantially similar language appeared: "The bill for ch. 488 was therefore regularly passed, and the chapter is a valid law, unless it comes within the provisions of sec. 8, art. VIII, of the [Wisconsin] constitution" (emphasis added).

14 Our state constitution declares: "The blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality and virtue, and by frequent recurrence to fundamental principles." Wis. Const. art. I, § 22.

15 Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶2, 327 Wis. 2d 572, 786 N.W.2d 177.

16 Wis. Stat. §§ 19.81-19.98 (2009-10).

All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.

17 Wis. Const. art. IV, § 10.

18 Wisconsin Stat. § 19.81(3) provides: "In conformance with article IV, section 10, of the constitution, which states that the doors of each house shall remain open, except when the public welfare requires secrecy, it is declared to be the intent of the legislature to comply to the fullest extent with this subchapter." (Emphasis added.)

19 Wisconsin Stat. § 19.83(1) provides in relevant part: "Every meeting of a governmental body shall be preceded by public notice as provided in s. 19.84, and shall be held in open session." Wisconsin Stat. § 19.84(3) provides in relevant part: "Public notice of every meeting of a governmental body shall be given at least 24 hours prior to the commencement of such meeting unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."

20 Wisconsin Stat. § 19.82(1) defines a "[g]overnmental body" as "a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order." Wisconsin Stat. § 19.87 further explicitly states that the Open Meetings Law "shall apply to all meetings of the senate and assembly and the committees, subcommittees and other subunits thereof," with the exception of certain meetings not at issue here.

21 Wisconsin Stat. § 19.97(1) provides in relevant part that the Open Meetings Law "shall be enforced in the name and on behalf of the state by the attorney general or, upon the verified complaint of any person, by the district attorney of any county wherein a violation may occur." Unlike the situation in State v. City of Oak Creek, 2000 WI 9, ¶1, 232 Wis. 2d 612, 605 N.W.2d 526, in which this court recognized that the attorney general's authority is statutorily defined and concluded that the attorney general lacked the authority to challenge the constitutionality of the statute at issue, the Open Meetings Law expressly authorizes the district attorney to enforce its provisions.

22 Subsections (2) and (3) of Wis. Stat. § 19.97 provide:

(2) . . . [T]he attorney general or the district attorney may commence an action . . . to obtain such other legal or equitable relief, including but not limited to mandamus, injunction or declaratory judgment, as may be appropriate under the circumstances.

(3) Any action taken at a meeting of a governmental body held in violation of this subchapter is voidable, upon action brought by the attorney general or the district attorney of the county wherein the violation occurred. However, any judgment declaring such action void shall not be entered unless the court finds, under the facts of the particular case, that the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken.

23 243 Wis. 459, 470-71, 10 N.W.2d 180 (1943).

24 Id. at 467.

25 114 Wis. 2d 358, 364-67, 338 N.W.2d 684 (1983).

26 Milwaukee Journal Sentinel v. Dep't of Admin., 2009 WI 79, ¶¶19-20, 319 Wis. 2d 439, 768 N.W.2d 700 (concluding that "we have the authority to evaluate legislative compliance with § 111.92(1)" because "even if the statute might otherwise be characterized as a legislative rule of proceeding, we may interpret the statute and apply it to the legislative action to determine whether that action complies with the relevant constitutional mandates").

27 This begs another question: Does the attorney general's argument in the petition for a supervisory writ case, on behalf of the Department of Administration, amount to an attack on the constitutionality of the Open Meetings Law as applied to the legislature? The attorney general has argued that the Open Meetings Law is merely "aspirational" as to the legislature because, according to the attorney general, courts may only invalidate a legislative act that conflicts with the constitution and not based on a violation of statutory rules. This question is significant because, as explained in City of Oak Creek, the attorney general has no general authority to challenge the constitutionality of a statute. City of Oak Creek, 232 Wis. 2d 612, ¶1.

28 Benjamin N. Cardozo, The Nature of the Judicial Process 34 (1921).

29 While the majority's order implies that this court may consider whatever transcripts were filed in appendices to materials submitted to this court, that is a departure from settled precedent that is sure to cause grave concern among appellate lawyers. State v. Kuhn, 178 Wis. 2d 428, 439, 504 N.W.2d 405 (Ct. App. 1993) (noting that an appellate court is "limited by the record before [it] and cannot consider the extraneous material included in [a party's] appendix"). This break with precedent is yet another legal casualty of the majority's hasty decision.

30 This is particularly troubling because the majority and Justice Prosser's concurrence appear to make many factual assertions. The majority's conclusion that "the legislature did not employ a process that violated Article IV, Section 10 of the Wisconsin Constitution" is based on facts that either conflict with or are not found in the limited record before this court. Specifically, the majority states (1) "[t]he doors of the senate and assembly were kept open to the press and members of the public during the enactment of the Act," (2) "[t]he doors of the senate parlor, where the joint committee on conference met, were open to the press and members of the public," and (3) "WisconsinEye broadcast the proceedings live." The source of the facts is unclear. The majority's factual findings either conflict with or are unsupported by the circuit court's findings of fact in State ex rel. Ozanne v. Fitzgerald, which provide that the doors to the Senate Gallery were locked during the meeting and say nothing regarding the doors to the senate parlor or a WisconsinEye broadcast. "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Wis. Stat. § 805.17(2).

Justice Prosser's concurrence likewise relies on numerous factual assertions, some of which are based on the circuit court's findings of fact in Ozanne, and others whose source is unexplained. It cannot be both ways----either these are purely legal questions that require no factual findings outside of the circuit court's findings of fact (which control unless found to be clearly erroneous) or this court needs a record and a resolution of disputed facts.

31 The path most frequently taken to this court is that parties appeal from the circuit court judgment to the court of appeals, which reviews and rules, and then petition this court for review. See Wis. Stat. § (Rule) 809.62. However, there are other routes provided by statute for a case to come to this court without first being reviewed by the court of appeals, whether at the request of the parties, see Wis. Stat. § (Rule) 809.60 (permitting parties to petition this court for review, bypassing the court of appeals), or the request of the court of appeals itself or on motion of this court, see Wis. Stat. § (Rule) 809.61 (permitting the court of appeals to send cases to this court by certification and authorizing this court to take jurisdiction of any action pending in the court of appeals). In each of those instances, the record in the underlying case is available to this court.

32 I would hold that there is a final decision by the circuit court "as to the validity of the actions taken on March 9, 2011," (the date of the alleged Open Meetings Law violation). Pursuant to Wis. Stat. § 808.03, the circuit court's decision is a final, appealable judgment because it "disposes of the entire matter in litigation as to one or more of the parties." Aggrieved parties may intervene after a circuit court decision under the permissive intervention requirements in Wis. Stat. § 803.09, and appeal from that decision. M & I Marshall & Ilsley Bank v. Urquhart Cos., 2005 WI App 225, ¶7, 287 Wis. 2d 623, 706 N.W.2d 335 ("This court has noted that motions to intervene must be evaluated 'with an eye toward disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.'") (quoting Wolff v. Town of Jamestown, 229 Wis. 2d 738, 742-43, 601 N.W.2d 301 (Ct. App. 1999)). I recognize that the circuit court stated that the separate forfeiture claims against some legislators "are held in abeyance pending expiration or waiver of their legislative immunity."

33 State v. Speer, 176 Wis. 2d 1101, 1124, 501 N.W.2d 429 (1993).

34 The certification from the court of appeals pursuant to Wis. Stat. 809.61 arose from Secretary of State LaFollette's "petition for leave to appeal a temporary restraining order (TRO) issued on March 18, 2011." The March 18, 2011, TRO no longer exists because it was superseded by the circuit court's May 26, 2011, decision. There is no separate question presented by the TRO; if this court addresses the significant issues addressed above concerning the circuit court's permanent injunction, it would by definition resolve any questions concerning the TRO.

35 State ex rel. Dressler v. Circuit Court for Racine Cnty, 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991).

36 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Dressler, 163 Wis. 2d at 630).

37 Id. (citations omitted).

38 As I have noted previously, the majority's order does not give adequate consideration to the distinctions between a petition for a supervisory writ and a petition for an original action. The attorney general originally petitioned for a supervisory writ and for the first time argued in Huebsch's reply brief that the petition for a supervisory writ could be "recast as a petition for original action publici juris," but no party has actually petitioned for an original action. The majority seems to have decided to recast this petition as one for an original action, and now that it has done so, it should address the procedural problems that presented such as the lack of a complete record, the disputed factual issues that must now be resolved, and who the parties are.

39 Petition of Heil, 230 Wis. 428, 448, 284 N.W. 42 (1939).

40 Petition of Heil, 230 Wis. at 448.

41 Green for Wis. v. State Elections Bd., 2006 WI 120, 297 Wis. 2d 300, 302, 723 N.W.2d 418.

42 See Wis. Prof'l Police Ass'n, Inc. v. Lightbourn, 2001 WI 59, ¶6, 243 Wis. 2d 512, 627 N.W.2d 807 (referencing the reserve judge who supervised the stipulation of facts agreed to by the parties).

43 Schill, 327 Wis. 2d 572, ¶2.

44 Wis. Stat. §§ 19.81-19.98.

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