2007 WI 45

SUPREME COURT OF WISCONSIN

CASE NO.: 2006AP2452-OA

COMPLETE TITLE:

Green for Wisconsin and Mark Green,

Petitioners,

State of Wisconsin Elections Board and Kevin J. Kennedy, in his official capacity as Executive Director of the State of Wisconsin Elections Board,

Respondents.

OPINION FILED: April 25, 2007

SUBMITTED ON BRIEFS:

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED: Crooks, J., concurs (opinion filed). Prosser, J., concurs (opinion filed).

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:

2007 WI 45

SUPREME COURT OF WISCONSIN

NOTICE

This order is subject to further editing and modification. The

final version will appear in the bound volume of the official

reports.

No. 2006AP2452-OA

Green for Wisconsin and Mark Green,

Petitioners,

FILED

APR 25, 2007

State of Wisconsin Elections Board and Kevin J. Kennedy , in his official capacity as Executive Director of the State of Wisconsin Elections Board, David R. Schanker Clerk of Supreme Court Madison, WI

Respondents.

The Court entered the following order on this date:

The parties have agreed that this case may be dismissed,

with prejudice, without costs, and without further notice to any

party.

IT IS ORDERED that the original action is dismissed, with

prejudice and without costs to any party.

¶1 N. PATRICK CROOKS, J. (concurring). While I concur

in the order dismissing this matter, based on the unopposed

motion of the petitioners, I write in order to respond to the

lengthy concurrence of Justice David T. Prosser.

¶2 Several years ago, Grant County Circuit Court Judge

Richard W. Orton, a distinguished trial judge, ordered summary

judgment in a case. In doing so, he characterized the

plaintiffs' case as "hogwash, pure hogwash." That phrase aptly

fits those portions of the concurrence of Justice Prosser where

he denigrates the actions of members of this court. The

following unfair and inaccurate phrases are used in his

concurrence: the court "used every imaginable pretext to avoid

making a decision" (¶16); the "court did not care" (¶17); was

"indifferent" to the facts of the case (¶23); was "overwhelmed

by the difficulty of the facts and issues" and "threw up its

hands" (¶28).

¶3 The fact is that this court spent many, many hours

working on the petition asking to commence an original action,

as well as on the various submissions of the petitioners, the

respondents, and the amicus. The October 31, 2006 order of this

court accurately sets forth the extensive efforts that were made

to try to get this matter into an appropriate posture, so that a

decision could be made as to whether to grant the petition, and

thus, take this case invoking our original jurisdiction. We

did, of course, ultimately take the case once there were no

factual disputes. This court grants petitions for original

jurisdiction "'with the greatest reluctance . . . especially

where questions of fact are involved . . . .'" Petition of

Heil, 230 Wis. 428, 436, 284 N.W. 42 (1939) (citing State ex

rel. Hartung v. City of Milwaukee, 102 Wis. 509, 78 N. W. 756

(1899)).

¶4 The March 12, 2007 order of this court came in

response to the changes brought about by the legislature and the

governor in eliminating the State Elections Board and the State

Ethics Board, and in creating a new Government Accountability

Board. That new board has the authority to review, and, by its

action or inaction, to affirm or nullify decisions by the two

boards that were eliminated. See 2007 Wis. Act 1, § 209(2)(e).

The settlement of this case came shortly after we issued that

order, asking the parties whether oral argument should be

scheduled despite the changes, or whether it was prudent to wait

until the new Government Accountability Board had an opportunity

to act or decline to act.

¶5 Much is made in the concurrence of Justice Prosser

about how this court was once a "great court," and how we no

longer fit that description. Justice Prosser's concurrence,

¶¶16, 37. In order to be a "great court," I believe that the

members of such a court must be persons who care deeply about

truth, justice, and fairness. I have great respect for my

colleagues on the Wisconsin Supreme Court, but it is for others,

not for us, to judge whether we continue to be a "great court."

What I observed in the handling of this case by my colleagues

convinced me that each of them cared deeply about truth,

justice, and fairness for the parties. To denigrate, now, their

actions is wrong and I must, therefore, respond to such unfair

and inaccurate characterizations of the court and its actions in

this case. Accordingly, I respectfully concur.

¶6 DAVID T. PROSSER, J. (concurring). The petitioners,

Green for Wisconsin and Mark Green, move this court for an order

to dismiss their original action. Their motion is based upon a

Stipulation of the parties to settle the case. The petitioners'

motion was filed by an assistant attorney general representing

the respondents, which underscores the settlement agreement. In

view of the settlement, I reluctantly concur in the Order to

dismiss the action. Nonetheless, because this case always

warranted the court's urgent attention, I believe additional

comment is necessary.

¶7 There have been many notable cases in the history of

this court. By all accounts, one of the most significant was

The Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567

(1856). See Joseph A. Ranney, Trusting Nothing to Providence

84-88 (1999); John Bradley Winslow, The Story of a Great Court

96-107 (1912). The case involved a disputed election for

governor in which the court in essence removed a governor from

office.

¶8 In 1855 Governor William A. Barstow ran for re-

election. Although his party dominated Wisconsin politics,

Barstow had apparently antagonized many voters, and he ran well

behind the rest of the ticket. The election was very close and

remained unresolved for weeks. On December 17, 1855, the last

day allowed by law, the state board of canvassers certified

Barstow's reelection by 157 votes. Winslow, supra, at 97.

¶9 Barstow's opponent, Coles Bashford, claimed fraud. He

asserted that slow returns from Chippewa, Waupaca, and several

other northern counties contained fictitious precincts and

manufactured votes. Winslow, supra, at 97, 101. Bashford moved

to file a writ of quo warranto in the supreme court, challenging

Barstow's election and his right to hold the office of governor.

Winslow, supra, at 99.

¶10 The newly elected attorney general took control of the

quo warranto so that a member of Barstow's party could manage

the action. Eventually, however, he stepped aside. Winslow,

supra, at 99, 101.

¶11 Barstow vigorously opposed the court's jurisdiction to

hear the case. Winslow, supra, at 102. When the court decided

otherwise, Barstow refused to file a substantive answer, thereby

permitting a default judgment. Barstow's attorneys withdrew

after delivering a communication from Barstow threatening to

resist any removal order from the court "with all the force

vested in this department." Winslow, supra, at 104-05.¹

¶12 The court was not deterred. Rather than enter a

default against Barstow, however, it required Bashford to make

his proofs and demonstrate his title to office. He did.

As Justice Winslow later wrote: "This was plainly a threat

of armed resistance in case the Court proceeded to seat Bashford. Especially significant was the threat in view of the fact that arms were known to have been stored in the state house for use in case of an emergency." John Bradley Winslow, The Story of a Great Court 105 (1912). Joseph Ranney adds: "Tensions ran high. Militia units from areas supporting Barstow came to Madison for his inauguration and stayed to fight for him if necessary." Joseph A. Ranney, Trusting Nothing to Providence 84 (1999).

Winslow, supra, at 106. Once the "irregularities and fraudulent

returns were amply proven," the court entered judgment.

Winslow, supra, at 106. Several days before judgment, Barstow

resigned, transferring the office to the lieutenant governor who

promptly honored the court's order. Winslow, supra, at 107.

¶13 In explaining the court's jurisdiction to decide this

"political case," Chief Justice Edward Whiton observed that the

court "is the mere instrument provided by the constitution to

ascertain and enforce [Bashford's and Barstow's] rights as fixed

by that instrument. Its office is the same as in all

controversies between party and party; not to create rights, but

to ascertain and enforce them." Ranney, supra, at 85 (quoting

Bashford, 4 Wis. at 659).

¶14 Throughout the proceedings, the court was united.

Justice Abram D. Smith, a member of Barstow's party, wrote on

every important issue before the court. Future Chief Justice

Edward G. Ryan, also a member of Barstow's party, played a

leading role in arguing and proving Bashford's case. Ranney,

supra, at 84; Winslow, supra, at 99.

¶15 The case of Bashford v. Barstow, according to

historian Joseph A. Ranney, "conclusively established [the

Supreme Court's] role as the final interpreter of the law."

Ranney, supra, at 84. It also assured the integrity of the

electoral process. It thus represented a pivotal moment in

Wisconsin legal history.

¶16 Bashford v. Barstow was decided more than a century-

and-a-half ago. We live now in different times. If there is

ever a sequel to Justice Winslow's The Story of a Great Court,

the Green case will not be included. In the midst and aftermath

of an important gubernatorial election, this court did nothing

to ascertain and enforce rights, or to assure the integrity of

the electoral process. Instead, it used every imaginable

pretext to avoid making a decision.

¶17 Some citizens believe that petitioner Green and his

committee were campaign violators, even though the Elections

Board deprived them of the opportunity to use lawfully

collected, publicly reported political contributions in Green's

campaign. Other citizens believe that Green was the victim of

an abuse of government power. No matter how one sees it,

history will show that this court did not care.

¶18 From the outset, Green contended that he and his

committee had complied in every respect with existing state and

federal law. The Elections Board now stipulates that:

[W]hen Green for Wisconsin . . . converted the disputed funds from Petitioner Mark Green's federal campaign committee to his state campaign committee on January 25, 2005, it complied with: (1) previous Board determinations with respect to similar matters; (2) ElBd 1.39, as written and interpreted at the time; and (3) instructions provided by the Board's staff.

¶19 What more is there to say? When the parties also

"acknowledge that the Board's position in this litigation was

based on the Board's current interpretation of the relevant

statutes," the parties acknowledge an irrelevancy. (Emphasis

added.)

¶20 This court recognized in Elections Board v. Wisconsin

Manufacturers & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721

(1999), that retroactive rulemaking——at least in the area of

speech——is a violation of due process of law. This court said:

"Because we assume that [persons are] free to steer between

lawful and unlawful conduct, we insist that laws give the person

of ordinary intelligence a reasonable opportunity to know what

is prohibited, so that he [or she] may act accordingly." Id. at

676-77 (quoting Grayned v. City of Rockford, 408 U.S. 104, 108

(1972)). "Such notice is a basic requirement of due process."

Id. (citing Grayned, 408 U.S. at 108).

¶21 The court went on: "Because First Amendment freedoms

need breathing space to survive, government may regulate in the

area only with narrow specificity." Id. at 677 (quoting Buckley

v. Valeo, 424 U.S. 1, 41 n.48 (1976)).

¶22 When Justice Department attorneys were called upon to

defend the Elections Board's rules and "order," they were not

content with trying to defend retroactive rulemaking. They

publicly and repeatedly accused Green of violating federal law,

a position that directly contradicted the Elections Board's

formal interpretation of federal law.² This astounding and

The Elections Board's explanation of its emergency rule reads in part:

The Elections Board finds that an emergency exists in the recent change in federal law that permits the transfer of the funds in a federal candidate campaign committee's account to the candidate's state campaign committee account . . . .

In November, 2004, Congress amended the Federal Election Campaign Act . . . to permit the transfer of a federal candidate's campaign committee's funds to the candidate's state campaign committee, if state law permitted, and subject to the state law's requirements and restrictions.

disturbing position may be the reason why former Attorney

General Peggy Lautenschlager's name is conspicuously missing

from all the briefs Department attorneys filed in this case.

¶23 To these hard facts the court has been indifferent.

The extensive procedural history of this case is set out below.

¶24 On October 9, 2006, Green filed a petition for an

original action in this court.

¶25 On October 11, 2006, this court responded promptly by

issuing two orders. One ordered the Elections Board to file a

response by October 16, 2006. The other ordered Green to secure

and transfer to this court records from the Elections Board

relating to its proceedings, its Emergency Rule of January 26,

2005, and its September 6, 2006, "order," as well as all papers

and transcripts from Green's unsuccessful effort to obtain an

injunction against the Board's "order" in the Dane County

Circuit Court (Case No. 2006CV3055).

Because of Congress' action in November, 2004,

money which had not been available to a state committee under BICRA, and which might not have qualified for use for political purposes in a state campaign because of its source or because of other noncompliance with state law, could now be transferred to a state committee, if state law permitted. Wisconsin law, under the Board's current rule, E1Bd 1.39 Wis. Adm. Code, allows for conversion of federal campaign committees, and their funds, to a state campaign committee without regard to the source of those funds and without regard to contribution limitations. (Emphasis added.)

¶26 On October 18, 2006, this court ordered the

petitioners and respondents to file answers to 11 questions by

October 19, 2006. See Appendix A.

¶27 On October 31, 2006, the court issued a third order.

2006 WI 120, ___ Wis. 2d ___, 723 N.W.2d 418. The order stated

that:

The court has worked diligently to assess and determine the legal and factual issues presented by the parties and to reach a consensus on how to proceed; we have explored the difficult substantive and procedural issues in an attempt to bring order out of complex and confusing filings, all to no avail. (Emphasis added.)

¶28 Seemingly overwhelmed by the difficulty of the facts

and issues, the court threw up its hands and ordered the

petitioners to file an amended petition "in the form of a

complaint which, in numbered paragraph form, specifies the

precise facts and legal theories upon which they rely." The

respondents were then ordered to answer the new "complaint."

The order stated that the court would then submit these

documents to a reserve judge who would determine "what factual

issues are in dispute and whether they relate to the identified

legal issues." The court went on at length about the alleged

jumble of disputed facts:

This court has on two occasions issued orders asking the parties to clarify the facts upon which the court would have to resolve the matter and to identify disputed facts, if any. It appears from the parties' submissions in response to those orders that there are truly contested issues of fact.

The parties do not appear to agree on what facts

the characterization of many facts. The parties' stipulation of facts was for the circuit court are relevant, nor do they agree on

proceeding and it does not cover all of the facts at

issue here. The respondent says the only relevant facts are the Elections Board's record in creating the emergency rule and issuing the September 6, 2006 order. Petitioners say that the court must also consider the history of the Elections Board's actions regarding previous "conversions" of federal campaign accounts to state campaign accounts. Petitioners' "record" for purposes of an original action would apparently consist of the "record" transmitted by the Dane County Circuit Court from the earlier circuit court case, the Elections Board record, documents regarding the complaint filed with the Federal Election Commission, and "factual assertions offered by the parties." In response, although the respondent's filings have cited certain paragraphs in the petitioners' filings to which it takes exception, it has failed to identify clearly the specific factual allegations that it allegedly disputes. The parties' seemingly inconsistent statements on the existence of disputed factual issues impinges upon this court's ability to evaluate at this point in time whether the case is of the type that should be resolved through the court's original jurisdiction, which is designed to resolve important legal questions but not to referee factual disputes.

¶29 Three justices dissented from this order. Justice Jon

Wilcox wrote: "Further pleadings and factual development will

not shed any more light on whether this court should decide to

exercise its original jurisdiction. . . . Further pleadings are

unnecessary." Green, ___ Wis. 2d ___, ¶¶2, 4 (Wilcox, J.,

dissenting). Justice Patience Roggensack wrote: "Neither

further factual development nor further pleading is necessary

for this court to decide whether to exercise its original

jurisdiction. . . . The . . . order unnecessarily delays making

a decision on this issue until after the November 7, 2006

election . . . ." Id., ¶¶23, 24 (Roggensack, J., dissenting).

¶30 On November 8, 2006, the court issued an order

appointing the Honorable William F. Eich to conduct the

proceedings described in its October 31, 2006, order.

¶31 On December 12, 2006, Judge Eich issued his report.

He noted that petitioners' amended petition listed "thirty

separate paragraphs" reciting facts. He stated that

"Respondents admit each of the thirty factual allegations of the

Amended Petition." He stated that the parties agreed on the

legal issues. Then he declared: "The parties have agreed and

represented that the material facts necessary to determination

of the above issues are, as contained in the pleadings, matters

of record and, in any event, are undisputed." (Emphasis added.)

See Appendix B.

¶32 Six weeks later, on January 23, 2007, the court issued

a fourth order, accepting original jurisdiction, setting a

briefing schedule, and enumerating eight issues. See Appendix

¶33 On March 12, 2007, the court issued a fifth order,

asking the parties whether it was "desirable and prudential to

delay oral arguments in this matter until the [newly created]

Government Accountability Board has acted." See Appendix D.

This order hinted at delaying argument until late 2007 or even

2008.

¶34 Four days later, the parties settled the case and

filed a motion to dismiss.

¶35 At no time did the court schedule oral argument.

¶36 This procedural record speaks for itself.

¶37 If there is ever a sequel to The Story of a Great

Court, this case will not be included. But with many more cases

like this one, there is not likely to be a sequel.

Appendix A-1

Appendix A-2

Appendix A-3

Appendix B-1

Appendix B-2

Appendix B-3

Appendix B-4

Appendix B-5

Appendix B-6

Appendix C-1

Appendix C-2

Appendix C-3

Appendix C-4

Appendix D-1

Appendix D-2