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Supreme Court of Wisconsin |
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In the matter of the adoption of procedures for original action cases involving state legislative redistricting |
FILED OCT 1, 2008 David R. Schanker Clerk of Supreme Court Madison, WI |
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On November 25,
2003, this court appointed a committee to review this court's opinion in Case
No. 02-0057-OA, Jensen v. Wisconsin Elections Bd., 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537, the history of state legislative redistricting in Wisconsin, and
redistricting rules and procedures in other jurisdictions, including federal
and state courts. The court authorized
the committee, upon completion of its review, to propose procedural rules in
the event an original action involving redistricting litigation was filed and
accepted.
The committee's
appointment resulted from the original action petition filed in this court in
the Jensen case by Assembly Speaker Scott R. Jensen and Senate Minority
Leader Mary E. Panzer, representing Assembly and Senate Republicans, seeking
this court's involvement in the redistricting process due to a legislative
impasse. The original action petition
filed in Jensen sought a declaration that the existing legislative
districts were constitutionally invalid due to population shifts documented by
the 2000 census. The petition requested
this court to enjoin the Wisconsin Elections Board from conducting the 2002
elections using the existing districts.
Although the
court found that the petition filed in the Jensen case warranted this
court's original jurisdiction, it determined this court lacked procedures for
redistricting litigation in the event of a legislative impasse resulting in a
petition for an original action. The court's
decision in the Jensen case said this court's existing original
jurisdiction procedures would have to be substantially modified to accommodate
the case's requirements. It explained
that a "procedure would have to be devised and implemented, encompassing,
at a minimum, deadlines for the development and submission of proposed plans,
some form of fact-finding (if not a full-scale trial), legal briefing, public
hearing, and decision."
The Jensen
decision stated, in part: "[T]o assure the availability of a forum in this
court for future redistricting disputes, we will initiate rulemaking
proceedings regarding procedures for original jurisdiction in redistricting
cases." The timing of the request in
Jensen for this court to take original jurisdiction did not permit the
exercise of jurisdiction in a way to do substantial justice, and the dispute
was ultimately resolved in federal court, where a case was already
pending.
The Jensen
decision indicated new procedures could include "provisions governing
factfinding (by a commission or panel of special masters or otherwise);
opportunity for public hearing and comment on proposed redistricting plans;
established timetables for the factfinder, the public and the court to act; and
if possible, measures by which to avoid the sort of federal-state court 'forum
shopping' conflict presented [in this case]." Consequently, this court voted to convene a
committee to study and draft procedural rules that govern state legislative
redistricting litigation in
The committee
filed its initial report with the court in September 2007, which was
distributed to interested parties and is available on the court's Web site. See
http://wicourts.gov/supreme/petitions_audio.htm. The committee has now filed a supplemental
memorandum, which supplements information in the committee's initial proposal
and was drafted in response to public comment and questions asked by various
justices during an open administrative conference held on April 8, 2008. The committee's supplemental memorandum is also
available on the court's Web site. The
supplemental memorandum addresses details of the committee's original proposal,
which outlined procedures that could be implemented if:
1) the Legislature is at an impasse in
attempting to redraw legislative and congressional district boundaries; and
2) a party files a lawsuit asking the court to
take original jurisdiction; and
3) the court agrees to accept the case; and
4) the court approves the procedures.
The court has invited
public comment on the supplemental memorandum and, following discussion of the
matter at its upcoming open administrative conferences, shall decide any future
steps that may be necessary.
IT IS ORDERED
that on Thursday, January 22, 2009, at 10:00 a.m., and on Friday, February 20,
2009, at 9:30 a.m., at its open administrative conferences in the Supreme Court
Room in the State Capitol,
IT IS FURTHER ORDERED that any interested persons may file with the court a written submission for the court's review at these conferences, preferably no later than December 31, 2008. The court retains the entire file on this matter and interested persons are encouraged not to file duplicative submissions. As this matter is not presently scheduled for public hearing, general public testimony will not be entertained at the open conferences at this time. The court may, in its discretion, direct questions to individuals present at the conferences to aid the court's consideration of these matters.
IT IS FURTHER ORDERED that notice of the open administrative conference be given by publication of a copy of this order in the official state newspaper once each week for three consecutive weeks, and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of each of the two conferences, specifically in the State Bar's November 2008, December 2008, and February 2009 publications.
Dated at
BY THE COURT:
David
R. Schanker
Clerk of Supreme Court