Article VII, section 3(2) of the Wisconsin Constitution empowers the Wisconsin Supreme Court to “hear original actions and proceedings” on top of its ordinary appellate jurisdiction. These dual powers render the court “a court of last resort on all judicial questions under the constitution and laws of the state” but “a court of first resort on all judicial questions affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.”¹

The court, however, has long recognized the tension that exists between its primary role as an appellate tribunal and its occasional role as a court of first resort. Nearly a century ago, it expressed “great[ ] reluctance” at assuming original jurisdiction “where questions of fact are involved,” acknowledging that circuit courts are “much better equipped for the trial and disposition of questions of fact than is this court.”² The court still emphasizes that it “generally will not exercise its original jurisdiction in matters involving contested issues of fact.”³

The Trends

First, some statistics.⁴ Between the court’s 2003-2004 and 2018-2019 terms, of 88 petitions to initiate an original action, the court granted only five. During this period, the court primarily accepted cases involving the separation of powers between the executive and legislative branches. Prominent examples include Koschkee v. Taylor, which addressed the governor’s power over administrative rules issued by the state superintendent of public instruction, and Bartlett v. Evers, which revisited the scope of the governor’s authority to partially veto legislation.⁵

But such cases were few and far between, until the tide turned (at least briefly) over the past three terms. During that period, the court granted 10 out of 32 requests, a significantly higher rate than in the many years prior.

The Explosion

What explains this sea change? Perhaps the largest contributor is the COVID-19 pandemic.

The floodgates opened early in 2020, soon after COVID-19 emerged as a serious public health threat. As Wisconsin’s spring 2020 primaries loomed, election officials agonized over how to safely proceed during a deadly pandemic, especially given Governor Evers’ just-issued “Safer at Home” order restricting out-of-home travel. One solution proposed by officials in Dane and Milwaukee counties was to advise voters that the pandemic entitled them to self-identify as “indefinitely confined,” a status that allows voters to obtain absentee ballots without first uploading photo identification.

People unhappy with the advice likely pondered their options: file a challenge in either Dane or Milwaukee County – both presumably hostile venues – or else ask the Wisconsin Supreme Court to take the case as an original action. Relying on the supreme court would be a risky bet; the case did not present a separation-of-powers issue like those accepted in recent years.

With the spring election less than two weeks away, the challengers opted to petition for an original action on March 27, 2020, and, in what became a common maneuver, simultaneously moved for a temporary injunction.

The gamble paid off. The supreme court – with no dissents – enjoined the advice in an order issued March 31, 2020, and granted the petition the next day.⁶ This was a jackpot: the challengers got an injunction in only a few days, and it had the added benefit of being unappealable.

It soon became clear this would not be a one-off result. Days later, on April 6, 2020, Governor Evers issued an executive order rescheduling in-person voting for the spring election from April 7, 2020, to June 9, 2020. Having already received one signal that the court would act quickly under these circumstances, the order’s opponents skipped circuit court and instead petitioned the supreme court to review and immediately enjoin the order.

Another petition, another jackpot. With unprecedented speed, the supreme court issued a final order that same day accepting the case as an original action and permanently enjoining the executive order, with two dissents.⁷ If litigants hadn’t yet gotten the message, they certainly did now: If you’re unhappy with pandemic response measures, file an original action petition and ask for an injunction.

And so they did. Next came a challenge to the governor’s “Safer at Home” order. Again, opponents used the emerging template of requesting both an original action and a temporary injunction. The supreme court granted the petition (with one dissent, by Justice Dallet), scheduled oral argument days later, and issued a final decision only three weeks thereafter.⁸

But as the flood of petitions continued, disagreement emerged within the supreme court. Through multiple petitions in August 2020, challengers targeted Dane County’s in-person school closure orders. The supreme court again granted the petitions and entered a temporary injunction, but this time over a vigorous dissent from Justice Dallet, Justice Karofsky, and Justice A.W. Bradley. The dissenters targeted the original action vehicle itself, arguing that “numerous, unresolved factual questions” were “purely local” and therefore “belong[ed] in a circuit court.”⁹

That split lineup emerged again in a challenge to the governor’s decision in September 2020 to extend his state-of-emergency declaration. Again, the supreme court granted the petition and, again, Justice Dallet, Justice Karofsky, and Justice A.W. Bradley dissented.¹⁰ Recognizing the emerging pattern, they chastised the majority for taking the “latest step” in “transform[ing] this court from one of last resort to the first stop for any discontented Wisconsinite.”

And in another in-person school closure challenge,¹¹ Justice Dallet, Justice Karofsky, and Justice A.W. Bradley again complained that original actions were transforming the court into “the preferred forum for Wisconsinites to second-guess public-health policy choices.” In the dissenting justices’ view, “[t]he adjudication of fact-intensive disputes over local policies instead belongs in circuit court in front of locally elected judges.”

The Pause

The story above is perhaps a bit too neat. Even during the pandemic’s height in 2020, the court denied important original-action petitions. For example, it rejected a petition seeking the release of prisoners from crowded facilities to reduce their COVID-19 risks¹² and another by Green Party presidential candidates who failed to gain access to the general-election ballot.¹³

The latter denial sparked fiery objections from Justice Ziegler, Chief Justice Roggensack, and Justice R. Bradley, who this time found themselves dissenting. By denying the Green Party’s petition, they accused the majority of “[s]ilently affirming lawless conduct,” “dodging its responsibility to uphold the rule of law,” and “depriv[ing] the Wisconsin people of a voice.”

These dueling dissents revealed an emerging divide about original actions. Three justices viewed the original-action procedure as a salutary way to quickly resolve important disputes, while three others saw that speed itself as creating too great a risk of error. That left one – Justice Hagedorn – who, despite supporting many pandemic-related petitions in 2020, joined the skeptics in Hawkins.

It soon became clear that Justice Hagedorn’s skepticism extended more widely. Shortly after the 2020 general election, the court denied three petitions objecting to myriad aspects of how officials had administered the election.¹⁴ In Trump, which sought to invalidate votes purportedly cast in violation of state laws, Justice Hagedorn emphasized that the court was “neither well-positioned nor institutionally designed” to resolve fact disputes.¹⁵

The original-action supporters did not sugarcoat their displeasure. Justice R. Bradley called the decision to deny the Trump petition a “death blow to democracy.” In her view, it revealed a “pattern of deferring or altogether dodging decisions on election law controversies,” citing Hawkins.¹⁶ Chief Justice Roggensack agreed, writing in Wisconsin Voters Alliance that, through the trio of denials, the court failed to “meet its institutional responsibilities” to “address the people of Wisconsin’s concerns” about the 2020 election.¹⁷ (Of course, many of these election law issues have since been litigated in matters that began in circuit courts.)

Perhaps the court’s newfound original-action skepticism was limited to election cases; what about the next pandemic-related dispute? That question was soon answered after Dane County’s health officer issued an order in November 2020 restricting indoor gatherings. Opponents turned to the tried-and-true original-action petition; this time, however, the skeptics prevailed. In one passage, Justice Hagedorn remarked that the supreme court was “designed to be the court of last resort, not the court of first resort,” that it historically accepted original actions “only rarely,” and that he “hope[d] we return there again.”¹⁸

Why the switch? Justice Hagedorn argued that earlier pandemic cases involved “state” pandemic tools that implicated “discrete and dispositive legal issues where fact-finding would not be needed.” By contrast, Gymfinity “seem[ed] to turn on questions of fact” and, perhaps more important, threatened to set a precedent that would “entrap [the Court] in the tangled web of passing judgment on all kinds of local restrictions for as long as COVID-19 endures.”¹⁹

The original-action proponents reaffirmed their faith in the procedure in dissent. While Chief Justice Roggensack acknowledged the “barrage” of recent original-action petitions, she said that the court “must act” upon allegations that a “fundamental personal liberty is suppressed by an unelected official.” In those circumstances, proceeding through the ordinary appellate process would be “justice denied.”²⁰

The skeptics remained unmoved as the 2020-21 term continued.

In Fabick v. Wisconsin Elections Commission,²¹ the court again rejected a petition challenging election administration practices. The decision underscored that this was no mere arcane procedural dispute but a deep philosophical disagreement over the court’s institutional role.

In the majority’s view, the mere presence of “important and unresolved” legal questions does not alone merit original jurisdiction. Although the court has an “obligation to say what the law is” and not to “shrink back from deciding challenging or politically fraught questions,” it has no “institutional role to step in and answer every unsettled and interesting legal question with statewide impact.” The majority saw that course as unwisely transforming the court into an “advice-giving body … on-call to answer questions for citizens, legislators, or executive branch officials.”²²

The dissenters, of course, saw things differently. To Justice Roggensack, the petition presented “critical issues of state-wide concern” that “cry for judicial resolution.” Absent the court’s attention, she worried that voters could lose “confidence in the integrity of Wisconsin elections.” The court therefore had an “institutional obligation” to act.²³

And in a clear demonstration of original-action fatigue, the court then unanimously rejected a separation-of-powers case, Kaul v. Wisconsin Legislature, that seemingly would have caught its attention in the pre-pandemic era.²⁴ Despite raising important questions about when the Wisconsin Legislature may take control over state litigation from the attorney general, the court declined to accept the case.

The Retreat

This new-found fatigue continued into the 2021-22 term, when the court accepted only a single original action, Johnson v. Wisconsin Elections Commission,²⁵ through which the court adopted Wisconsin’s new legislative and congressional districts. That case’s dramatic procedural history reveals that Johnson might bookend the original action’s brief golden age.

In accepting the case through a 4-3 vote, the three original-action proponents plus Justice Hagedorn explained that “[t]his court has long deemed redistricting challenges a proper subject for the court’s exercise of its original jurisdiction.” The dissenters, however, worried that the case would require “extensive fact finding and consideration of experts’ and other witnesses’ testimony,” tasks that “require[d] a trial court, which [the Court] [is] ‘obviously not.’”²⁶

That objection proved prophetic, as the U.S. Supreme Court summarily reversed the court’s initial merits decision, largely due to perceived gaps in the evidentiary record.²⁷ On remand, Justice Hagedorn expressed regret about the court’s original-action procedures. He noted that the court “did not approach record-development with an eye toward resolving factual disputes” and “did not conduct the sort of fact-specific inquiry and analysis that one sees in federal [Voting Rights Act] cases.”²⁸ And, in a belated acknowledgment of the skeptics’ position, he ultimately called the case a “poor vehicle” for the complicated claims at issue.

Two other prominent cases suggest that Johnson may indeed represent the end of an era.

In Stempski v. Heinrich, the supreme court denied a petition challenging Dane County’s mask mandate.²⁹ In another stinging dissent, Justice R. Bradley accused the majority of “shirk[ing] its institutional responsibility to decide yet another case alleging an unlawful deprivation of liberty.” Chief Justice Ziegler agreed, faulting the court for “once again … abdicat[ing] its responsibility to ‘say what the law is,’” while emphasizing the threat of “delay” and “potential mootness” caused by requiring the litigation to proceed first in circuit court.³⁰

And in Kleefisch v. Wisconsin Elections Commission, the supreme court declined to accept another case challenging absentee ballot practices. In dissent, Justice Roggensack again objected that the “majority sidestep[ed] its obligation to hear the continuing cry of Wisconsin voters.”³¹

The Future?

Where does that leave the original action? Seemingly back where it started, as an esoteric procedural vehicle dusted off only for select cases involving purely legal issues of the utmost statewide concern. The meteoric increase in 2020 was driven by the COVID pandemic and the chaotic election season that followed, a confluence of events not likely to recur anytime soon. And that tense period plainly did not endear the court – or at least four current justices – to the unique demand that many original actions make: lightning-fast action by the supreme court on the state’s most important cases. So, absent another dire emergency that requires exigent action by Wisconsin’s highest court, the original action may again lie dormant.

This contentious period has left the justices perhaps more divided than ever. Some people might not have expected a dry procedural question to generate so much heat, but it did. On one side, three justices viewed original actions as necessary to protect the liberty of Wisconsin residents, for whom justice delayed in the appellate process would be justice denied. On the other, three justices saw them as unwise shortcuts that ignore the virtue of refining disputes through the crucible of lower-court litigation. And in the lonely middle, Justice Hagedorn’s pragmatic line-drawing exercises drew the ire of whichever side found itself on the wrong side of the 4-3 divide.

Ultimately, original actions seem to probe the justices’ judicial temperament rather than their ideology. When should the court act boldly and quickly to protect Wisconsin residents, despite the risks inherent in hasty action by the state’s highest court? And when should it instead proceed more carefully, even if that leaves important legal disputes unresolved for longer?How four justices answer those basic questions will determine whether the original action ever sees another golden age.

Endnotes

1 Petition of Heil, 230 Wis. 428, 284 N.W. 42, 45 (1938).

2 In re Exercise of Original Jurisdiction of Supreme Ct., 201 Wis. 123, 229 N.W. 643, 645 (1930).

3 Wis. Sup. Ct. Int. Op. Pro. § III.

4 I am indebted to the work of Professor Alan Ball at Marquette University in assembling these figures at his website, scowstats.com.

5 Koschkee v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600; Bartlett v. Evers, 2020 WI 68, 393 Wis. 2d 172, 945 n.W.2d 685.

6 Jefferson v. Dane Cnty., 2020 WI 90, 394 Wis. 2d 602, 951 N.W.2d 556.

7 Wisconsin Legislature v. Evers, No. 2020AP608-OA (Wis. Apr. 6, 2020) (unpublished order).

8 Wisconsin Legislature v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900.

9 Jamesv. Heinrich, No. 2020AP1419-OA; Wisconsin Council of Religious & Indep. Schs. v. Heinrich, No. 2020AP1420-OA; St. Ambrose Acad. Inc. v. Parisi, No. 2020AP1446-OA. [These three original action petitions were consolidated in the unpublished order, and the quoted order disposed of all three.]

10 Fabick v. Evers, 2021 WI 28, 396 Wis. 2d 231, 956 N.W.2d 856.

11 School Choice Wis. Action v. Bowersox, No. 2020AP1911-OA (petition granted & action held in abeyance Nov. 19, 2020). The case history is available at Wis. Ct. Sys., Supreme Court & Court of Appeals Access, https://wscca.wicourts.gov/index.xsl.

12 Wisconsin Ass’n of Crim. Def. Lawyers v. Evers, No. 2020AP687-OA (petition denied April 24, 2020). The case history is available at Wis. Ct. Sys., Supreme Court & Court of Appeals Access, https://wscca.wicourts.gov/index.xsl.

13 Hawkins v. Wisconsin Elections Comm’n, 2020 WI 75, 393 Wis. 2d 629, 948 N.W.2d 877.

14 Wisconsin Voters Alliance v. Wisconsin Elections Comm’n, No. 2020AP1930-OA (petition denied Dec. 4, 2020); Mueller v. Jacobs, No. 2020AP1958-OA (petition denied Dec. 3, 2020); Trump v. Evers, No. 2020AP1971-OA (petition denied Dec. 1, 2020). The case histories are available at Wis. Ct. Sys., Supreme Court & Court of Appeals Access, https://wscca.wicourts.gov/index.xsl.

15 Trump, No. 2020AP1971-OA.

16 Id.

17 WisconsinVoters Alliance, No. 2020AP1930-OA.

18 Gymfinity v. Dane Cnty., No. 2020AP1927-OA (petition denied Dec. 21, 2020). The case history is available at Wis. Ct. Sys., Supreme Court & Court of Appeals Access, https://wscca.wicourts.gov/index.xsl.

19 Id.

20 WisconsinVoters Alliance, No. 2020AP1930-OA.

21 Fabick v. Wisconsin Elections Comm’n, No. 2021AP428-OA (petition denied June 25, 2021). The case history is available at Wis. Ct. Sys., Supreme Court & Court of Appeals Access, https://wscca.wicourts.gov/index.xsl.

22 Id.

23 Id.

24 Kaul v. Wisconsin Legis., No. 2020AP1928-OA (petition denied March 24, 2021). The case history is available at Wis. Ct. Sys., Supreme Court & Court of Appeals Access, https://wscca.wicourts.gov/index.xsl.

25 Johnson v. Wisconsin Elections Comm’n, No. 2021AP1450-OA (petition granted Aug. 23, 2021). See the discussion of the case’s procedural history in Johnson v. Wisconsin Elections Comm’n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469.

26 Johnson, No. 2021AP1450-OA.

27 Wisconsin Legislature v. Wisconsin Elections Comm’n, 142 S. Ct. 1245 (2022).

28 Johnson v. Wisconsin Elections Comm’n, 2022 WI 19, ¶ 152, 401 Wis. 2d 198, 972 N.W.2d 559.

29 Stempski v. Heinrich,No. 2021AP1434-OA (petition denied Aug. 27, 2021). The case history is available at Wis. Ct. Sys., Supreme Court & Court of Appeals Access, https://wscca.wicourts.gov/index.xsl.

30 Id.

31 Kleefischv. Wisconsin Elections Comm’n, No. 2021AP1976-OA (petition denied Feb. 4, 2022). The case history is available at Wis. Ct. Sys., Supreme Court & Court of Appeals Access, https://wscca.wicourts.gov/index.xsl.

» Cite this article: 95 Wis. Law. 28-32 (October 2022).