That old adage that calls a Supreme Court the “court of last resort” isn’t true anymore, at least not in Wisconsin.
Wisconsin’s Supreme Court must now decide how much it wants to become the “court of first resort.”
The court recently has received a record number of “original action” filings—pleas to take important cases and decide them directly, bypassing lower circuit courts or the four courts of appeal. Those lower courts were created to fact find and resolve cases, setting precedents that the Supreme Court may or may not review.
- If you’re the campaign of President Trump, and you want 220,000 votes for president cast on Nov. 3 tossed because they were absentee ballots or cast by voters who declared themselves as “indefinitely confined,” file an original action petition.
- If you think $6.3 million given to five Wisconsin cities to help them pay election-related costs means the presidential election was conducted illegally, turn to the Supreme Court with an original action appeal.
- If you’re Republican legislators, a wealthy Republican donor, or business group opposing repeated “emergency” declarations by Democratic Gov. Tony Evers asking residents to stay at home, wear face masks in enclosed areas and limit room and business occupancies to 25% to fight the pandemic, file original action requests with the Supreme Court.
- If you want an order telling the city of Racine it can’t—for now—close public and private schools because of the COVID-19 pandemic, file an original action and have a divided court issue that order.
- If you own Gymfinity, a gymnastics training center in Dane County, and want to overturn Dane County’s public safety orders that limit your business practices, ask the court to intervene by filing an original action.
- If you’re the clerks of Outagamie and Calumet counties and you want legal advice on how to handle 13,000 absentee ballots that were misprinted in ways that prevent voting machines from reading them, file an original action appeal.
- If you’re Attorney General Josh Kaul and Gov. Evers and you think Republican legislators illegally infringed on the state Justice Department’s ability to negotiate legal settlements with a lame-duck session law passed in December 2018, file an original action appeal.
When the Court ruled 4-3 (four conservatives in favor, three liberals dissenting) that Racine public safety guidelines couldn’t close public and private schools, Justice Rebecca Dallet said the original action practice was being abused and the court was being manipulated.
In her dissent, Dallet cited language from a 1978 ruling by the court.
“This court is not ‘a performing bear, required to dance to each and every tune’ litigants play for it,” Dallet said.
“The (court) majority’s frequent exercise of Original Action and injunctive authority has transformed the court into the preferred forum for Wisconsinites to second guess public-health policy choices,” Dallet added.
“The adjudication of fact-intensive disputes over local policies instead belongs in circuit court in front of locally elected judges. This court should not accept this original action or enjoin the City of Racine Public Health Department’s health order.”
Referring to the growing practice of groups filing original actions, Dallet said:
“This court has turned into a one-stop shop for undoing local policymaking by discounting long standing limitations on our original jurisdiction and injunctive-relief authority ... This court historically has respected two principles counseling against its exercise: Do not intervene in wholly local disputes and do not resolve questions of disputed fact.”
When he cast the key vote rejecting the original action plea from President Trump’s campaign to disqualify 220,000 votes, Justice Brian Hagedorn agreed with Dallet.
Arguments made by Trump’s campaign and state government lawyers, who said Democrat Joe Biden’s 20,600-vote win in Wisconsin must stand, “reveal important factual disputes that are best managed by a circuit court,” Hagedorn said, adding:
“The parties clearly disagree on some basic factual issues ... I do not know how we could address all the legal issues raised in the (Trump) petition without sorting through these matters, a task we are neither well-positioned nor institutionally designed to do. The statutory process assigns this responsibility to the circuit court.”
That ruling only resolved one of many OA requests pending before the court, however.
Maybe the initialism OA doesn’t apply anymore. A better initialism might be HM —as in the filing of Hail, Mary appeals.