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BENCH BLOG: Wis. justices got pivotal decision wrong

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge.

In declining to note its own precedent, the Wisconsin Supreme Court has allowed the governor and state officials to violate a declaratory judgment during the appellate process.

The well-known case started in late August 2011, when two unions and individual union members filed an amended complaint against Gov. Scott Walker and three state officials, two of whom are commissioners for the Wisconsin Employment Relations Commission.

The plaintiffs in Madison Teachers Inc. v. Scott Walker sought the remedy of a declaration that various statutes enacted under 2011 Wis. Acts 10 and 32 violated the state constitution. The amended complaint also sought an injunction enjoining the defendants from acting under these statutes.

Thirteen months later, in September 2012, Dane County Circuit Judge Juan Colas entered judgment against the defendants, declaring that the challenged statutes violated both the Wisconsin and U.S. Constitutions and were therefore null and void. Injunctive relief was not granted.

Four days later the defendants filed an appeal. Colas denied their request to stay the declaratory judgment, as did the Court of Appeals.

Six months later, in late April 2013, the Court of Appeals certified the appeal to the Wisconsin Supreme Court.

Subsequent trial court proceedings

At this same point, the plaintiffs moved Colas in the trial court for an injunction. Colas declined to enjoin the defendants, ruling that the plaintiffs were not harmed by the defendants acting under these statutes with respect to other unions.

Five months later, in September 2013, multiple unions, without moving to intervene, filed a motion to hold the defendant commissioners in contempt. The motion sought sanctions, arguing that the commissioners’ enforcement of the challenged statutes against them constituted intentional disobedience of the September 2012 declaratory judgment.

In October, Colas held the commissioners in contempt of the declaratory judgment. He ordered that the commissioners halt enforcement of the statutes.

The defendants then filed an emergency motion in the Court of Appeals for stay of the contempt order. The motion was denied Oct. 24 of this year.

Supreme Court proceedings

By now, the state Supreme Court had accepted the certification of the case from the Court of Appeals. Accordingly, the defendants moved the state justices for stay of the contempt order and stay of the original declaratory judgment.

Meanwhile, the nonparty unions moved to intervene. That motion was denied as untimely.

In an eight-page Nov. 21 per curiam decision, the court invoked its constitutional superintending authority, which enables it to control the course of litigation in the lower courts of Wisconsin. It noted its long-standing ability to protect its appellate jurisdiction through use of its superintending authority.

The majority also noted that once an appeal is filed and the record transmitted to the Court of Appeals, a circuit court’s authority is limited because an appeal “strips the trial court of jurisdiction with respect to the subject matter of the judgment or order, except in certain unsubstantial and trivial matters.”

This much analysis would have been sufficient for the majority to opine that a contempt order is a substantial action, and to therefore vacate Colas’ contempt order.

Instead, the majority reasoned that the contempt order “expanded the scope of the September 2012 declaratory judgment by granting injunctive relief to nonparties. … the circuit court granted different relief than it originally granted in the September 2012 order.”

Accordingly, the majority vacated the contempt order. It did not stay the declaratory judgment order.

Dissent makes convincing argument

Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley together filed a dissent. Their most cogent argument was their first: a declaratory judgment against state officers is “the practical equivalent of an injunction against those officers.”

This principle of law was supported as recently as 2008 by a Wisconsin Supreme Court case, as well as federal precedent. The rationale for this well-established rule “rests on the premise that the government official will adhere to a judicial decision declaring a statute facially unconstitutional.”

In other words, a declaratory judgment determining that a statute is unconstitutional on its face means that the statute “always operates unconstitutionally.” Thus as a practical matter, it has the effect of an injunction because a state defendant is prohibited from enforcing an unconstitutional statute.

The dissenters therefore concluded that the majority erred by basing its analysis on their perception that the contempt order expanded the scope of the declaratory judgment. Rather, the order merely reiterated what the state defendants already should have known: that they cannot enforce any statute that has been declared null and void.

Notably, anyone aggrieved, not just the plaintiffs who sought the declaratory judgment, may seek redress for state defendants’ violation of the judgment. Accordingly, the so-called “nonparty unions” appropriately sought relief from the trial court without moving to intervene or starting a separate action.

The dissent additionally argued that during the pendency of an appeal, a circuit court can use its contempt powers to enforce the judgment that is the subject of the appeal. But this flies in the face of the rule that the circuit court is stripped of its power except in “unsubstantial and trivial” matters. Contempt is hardly trivial.

Novel, complex case

This case is unquestionably novel and procedurally complex. It was decided at every level under the Klieg lights reserved for high-profile cases. The majority recognized this.

“We are mindful,” it wrote, “of the pressures a circuit court can face from aggressive litigation in high-profile cases.”

The state Supreme Court itself suffered these pressures, however, and may not have conducted a thorough analysis, including thinking through the ramifications of its decision.

Had it followed its own and federal precedent, it would have recognized that the state defendants already were enjoined by the declaratory judgment that was not stayed pending appeal.

By fashioning the decision as it did, the court allows the state officers to continue to flout the declaratory judgment while the case winds its way slowly to a final decision by the court. This undermines the potency of circuit court judgments.

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