Letters
Lapsing of CCAP funds found constitutional
This is an update to our February article "Wisconsin's
Voyage to Computerized Courts." The article discussed Flynn v.
Dep't of Admin., which was then pending in the Wisconsin Supreme
Court. On March 13, 1998, the supreme court issued an opinion, which
reversed the decision of Judge Mark Frankel of the Dane County Circuit
Court.
As background, in 1989 the Wisconsin Legislature created an
appropriation to fund a circuit court automation program (CCAP) to
computerize information processing in Wisconsin courts. A few years
later, the Legislature passed 1993 Wis. Act 16, section 9253, which
lapsed nearly $3 million earmarked for CCAP into the state's general
fund. This loss of funds hampered efforts to computerize Wisconsin
courts.
In 1995 Judge Flynn of the Racine County Circuit Court filed a
lawsuit on behalf of all court users requesting a declaratory judgment
that Act 16 was unconstitutional. Judge Frankel found that the Act
violated fundamental public policy grounded in the constitution and
therefore ordered the Department of Administration to return the lapsed
funds to the courts. The Department sought appellate review of the
decision, and the supreme court accepted the challenge.
The case put the supreme court on the horns of an interesting
dilemma. On the one hand, it had a vested interest in protecting funds
for the computerization of Wisconsin courts. On the other hand, the
court has long held that it is the Legislature's prerogative to
determine public policy and allocate funds in accordance with it.
Sensing perhaps the awkwardness of serving as both judge and
potential beneficiary of this lawsuit, Justice Bablitch, representing
the majority, wrote:
"The power of this court to declare invalid duly enacted legislation
is an awesome one. It is a power that is largely unchecked, most always
final. If we are to maintain the public's confidence in the integrity
and independence of the judiciary, we must exercise that power with
great restraint, always resting on constitutional principles, not
judicial will. We may differ with the legislature's choices, as we did
and do here, but must never rest our decision on that basis lest we
become no more than a super-legislature. ... The question is not what
policy we prefer, but whether the Legislature's choice is consistent
with constitutional restraints. We find that it is in this case."
(Flynn v. Dep't of Admin., 1998 WL 107966 at * 1 (1998).)
The court resisted the urge to rule in its own favor, but it did not
pass at the opportunity to chastise the Legislature. Justice Bablitch
called section 9253 "penny-wise and pound foolish" as well as a "poor
management choice." He recognized that the Legislature's lapsing of $3
million posed a burden to CCAP, but the program had continued to receive
funds. As a result, Justice Bablitch lamented that the courts'
computerization needs would not be met as "sufficiently, economically,
efficiently or conveniently" as they would have liked.
Colleen D. Ball & R. Timothy Muth
Milwaukee
Just admit you blew it ...
I read the February article "Breaking
Up Is Hard To Do," and the Domnitz
letter and your editorial response in the March issue. You should
put some starch in your shorts and admit you blew it. It is
unconscionable that the Wisconsin Lawyer would print such
unflattering statements about a respected law firm in a statewide
publication without first contacting that firm and giving it a chance to
comment. It is particularly distressing because it sends the message
that while the State Bar apparently believes clients should have the
right to confront accusers, our members do not. You compounded your
conduct by refusing to apologize when you were justifiably called on the
carpet. To say that the article "portrayed all concerned in a positive
light" proves that your ability to read is equal to your sense of
fairness. Shame on you.
Patrick O. Dunphy
Brookfield
Wisconsin
Lawyer
