The Ozaukee County Courthouse in Port Washington sits on a rising hill a few blocks from Lake Michigan. In a city that has more pre-Civil War buildings than any other in the state, the courthouse dates to the turn of the 20th century, where for over 100 years it has quietly remained an everyday fixture in government and the courts.

On the second floor sits its courtroom. The courtroom is largely ceremonial – the court system has since moved down the road to the more modern justice center – now housing the county’s administrative center. Yet the courtroom of the “old” courthouse continues to display the austerity and majesty of years past.

The courtroom itself is large, with a double door entry that leads to a sitting area 15 rows deep, ending in an impressive bench, spanning nearly the entirety of the courtroom.

Above the bench rises an intricate mural. The mural depicts two open books, one of law and the other of Constitution. Found in between is the Wisconsin coat of arms, recognizable below the Latin phrase, Jus dicere, non jus dare. Translated it means “To declare the law, not to make the law.”

A fitting phrase to welcome the Wisconsin Supreme Court to Ozaukee County.

Justice on Wheels

On Friday, Oct. 15, 2021, the Supreme Court brought another sign of returning to normal –  hearing oral argument in the “old” Ozaukee County Courthouse. The argument was part of the Court’s “Justice on Wheels” program. That program began in 1993, with the Court literally taking its business on the road to different parts of the state.

This trip was the 31st time the Court has heard argument outside Dane County since the program began.

Two cases were argued to the Court. Those in attendance would have noted how the justices were deferential to each other, the advocates, and displayed the professionalism befitting the office. The advocates were just as prepared – arguing complex cases on burden shifting in criminal cases to record review of employment determinations.

The occasion also highlighted the local Ozaukee community. Fifth graders were bussed in to hear oral argument. The Color Guard properly opened the event. And the Supreme Court held an essay and drawing-contest with local elementary schools. Justice Rebecca Grassl Bradley announced the winners, welcoming them and their families.

It included a rare opportunity for pictures with the Court. The winning essayist, a local fifth grader, proudly and eloquently read her essay: “Freedom of Speech and Expression for Children.” It was one of those moments that made you feel good about the law, the profession, and what we continue to aspire to be under the law.

Following oral argument, the justices met with members of the local Ozaukee County Bar Association and others, in a rare opportunity for the Court to interact personally with the bar. The justices again displayed their reverence for the position and reflected upon the importance of events such as “Justice on Wheels.” As was remarked many times, it was good to be in person again.

Local Participation

To put on the event took the concerted effort of the Supreme Court, the local bar, and other government outreach. Members of the local Ozaukee County Bar Association took a particular role. Circuit Judge Sandy Williams provided welcome comments. District Attorney Adam Gerol and Ozaukee County Commissioner Barry Boline gave brief introductions to each of the two oral arguments before the Court. Bar association president Rebecca Smith worked to organize the local bar. Others (too many to name) played important roles.

And to commemorate the occasion, Chief Justice Annette Kingsland Ziegler gave opening remarks on behalf of the Supreme Court. Her remarks recognized the history of the event, those involved to make it happen, and provided perspective to the occasion.

Here is an excerpt of her remarks. Her remarks recognized the event as historic, and again represented a rare opportunity for the bench, bar, and the public to recognize the unique-Ozaukee County past that brought us together in the present.

Excerpt: Remarks by Chief Justice Annette Kingsland Ziegler

Please note: Remarks are reproduced here with permission.

Greetings everyone!

Thank you, Judge Williams. And thank you to the sheriff’s office Color Guard for the flag presentation.

It is great to see you all.

I'm thrilled to be in Port Washington. This is a spectacular old courthouse and such an incredible courtroom. I think we have more room here than we do in our hearing room at the state Capitol. Thank you for sharing this beautiful space.

Ozaukee is the 31st Wisconsin county the Supreme Court has visited since the Justice on Wheels outreach program began ​in 1993. The idea is to make it easier for people from other parts of the state to see the Supreme Court at work without having to travel to Madison. We want people to understand the role of the courts and the work we do.

Justice on Wheels is also a working trip.

What you will observe today during oral argument is the same work we would be doing if we were in the Supreme Court Hearing Room at the Capitol. We listen to attorneys on each side of a case make their strongest legal arguments, and we ask questions. This is a key part of the case -deciding process.

We appreciate all of the work Ozaukee County has done, not only in bringing us here today, but also for your partnership in running the court system. …

When we travel for Justice on Wheels, we look for historical connections between the Wisconsin Supreme Court and the counties we visit. Turns out, we have some things in common.

Ozaukee County was created in 1853-the same year the Wisconsin Supreme Court was established as a stand-alone court. Before that, judges who traveled the state's judicial circuits would gather together once a year to decide cases as the Supreme Court.

Also as it turns out, Ozaukee County kept the Supreme Court fairly busy in those early years.

In 1863, the Wisconsin Supreme Court decided a case arising from the draft riot that occurred here in Port Washington on November 11, 1862. Many of you probably have heard of the riot, but maybe not about the Supreme Court case, captioned In re Nicholas Kemp.

According to a summary of that case, "On the day set for the draft, Nicholas Kemp and a large mob attacked and destroyed federal draft headquarters and prevented the draft from taking place. The mob assaulted and stoned federal officials and rampaged through Port Washington's streets, leaving behind fires and destruction."

Two days later, Kemp was arrested by the military under an order issued by then President Abraham Lincoln. Kemp was imprisoned at Camp Randall in Madison.

On December 4, 1862, the Wisconsin Supreme Court issued a writ of habeas corpus to General W.L. Elliot, commander of the Northwest Department, ordering him to bring Kemp before the Court on December 16.

For those of you who are not lawyers, a writ of habeas corpus is when a court demands to have a person who is under arrest brought to court to determine if the person is being held lawfully.

The military did not comply with the demand to produce Kemp, and the Court addressed whether the president had the authority to suspend habeas corpus; whether martial law applied in Wisconsin; and whether the president had power to change the law on his own.

The Court said that Kemp's 'riotous behavior,' if proven, violated state law and therefore, only a civil or criminal tribunal could order his detention-making Kemp's military imprisonment illegal."

Kemp ended up being represented by Attorney Edward G. Ryan, who later joined the Wisconsin Supreme Court and served as chief justice from 1874-1880. In the end, they decided that President Lincoln could not be given any special wartime powers, even if it meant losing the war.

This was a difficult case for the justices at the time, as they were loyal to the Union, but they were also bound to observe the rule of law. This case is a good example of a court acting independently, based on the law and the facts presented, even though such a decision may not have been popular at the time. …

There are also a few cases arising from a dispute over the creation of Ozaukee County itself. In fact, there's a good chance that without a case decided in 1854, Ozaukee County would not have come into being.

Now those of you who know me, know I'm from Washington County. Please don't hold that against me as I tell you about this case. I assure you ... I love Ozaukee County, and we are here on a friendly, diplomatic mission. But, a long time ago, there was a bitter battle over the location of the county seat of Washington County.

It's kind of a complicated story, but stick with me – I'm planning on a happy ending.

When Wisconsin became a territory in 1836, Port Washington was known as "Wisconsin City" and served as the county seat of Washington County. At that time, Washington County encompassed all of what is now Washington, Ozaukee, and Sheboygan counties. So this was a lot of territory.

By the 1840s, however, Port Washington had fallen on hard times. Its population dipped and its influence waned. By 1845, other parts of the county had grown in population, and people from those communities no longer wanted to travel to Port Washington to conduct county business.

The most common way to decide the location of a county seat around this time was by a vote of the people. This usually settled things. But it was just the beginning of a dispute here that went on for eight years and is recognized as one of the most protracted battles ever over a county seat-anywhere!

Hamburg, which is now Grafton, won an initial vote, and the first district court session was held in a schoolhouse in 1845. But by this time, the fledgling comity government had found another home-quite literally, according to a history of the area published in 1881.

From 1841 to 1844, the county commissioners met at the home of William T. Bonniwell in the town of Mequon. They also met for a time at Timothy Hall's house in the town of Wright, where Hartford is now located. They also met at times as a tavern at West Bend, and county officers were allowed to keep their offices at their residences. While this may have suited county officials at the time, it was not an efficient way to run government.

According to the historians: “A citizen was obliged to go to one town to have his deed recorded, to another to pay his county taxes on his land, to another to bring business before the County Board, and to still another for relief from the courts.”

All the while, county records had to be toted around.

In 1847, just before Wisconsin became a state, the Legislature again proclaimed Port Washington the county's seat of justice for a period of five years. That didn't sit well either, and subsequent votes were held in 1848 and 1849, again without a clear victor. This time around, things got ugly, with accusations of ballot-box stuffing in several communities.

In effort to settle things once and for all, the county board asked the legislature to decide. Each community lobbied to have the dispute settled in their favor. And in 1850, the Legislature devised a plan to split Washington County in two, creating a new county that would have its own county seat.

Do you know what name was proposed for this county? Do you think it was OZAUKEE? Well, you'd be wrong.

The Legislature chose the name "Tuskola County," but left the final decision on whether to split Washington County up to local voters. They rejected it!

Another vote was held after legislation passed in 1852, and Grafton again appeared the winner, but other communities continued to lobby the Legislature.

The next time was different. In 1853, some of the good people of West Bend joined with some of the good people of Port Washington and formed an alliance. They asked the Legislature to divide the county along a north-south line, making West Bend the county seat of Washington County and Port Washington the county seat of a newly created Ozaukee County.

The Legislature approved the plan in March 4, 1853, before the other communities knew what hit them. Protests erupted. The old Washington County Board initially voted to ignore the law and refused to hold elections. The old sheriff sued the new sheriff. County records disappeared. And a judge refused to hold court at West Bend, claiming the Legislature's act was unconstitutional.

A dispute over the judge's lack of action landed before the Supreme Court.

The central question for the Court was whether the Legislature's action was constitutional. The Constitution provided that the Legislature could divide a county as long as the county was more than 900 square miles in size.

A decision by the Supreme Court turned largely on whether Washington County, as situated before the Legislature acted, was large enough to divide. The question came down to whether the calculation should include the part of the county that extended to the middle of Lake Michigan. If so, the county was large enough; if not, it was too small.

Ultimately, the Court decided the boundary extended to the middle of the lake, as it did for other purposes of government organization, and therefore, the Legislature had acted constitutionally.

In other words, Ozaukee County was officially on the map.

I told you this story had a happy ending.

END OF EXCERPT, REMARKS OF CHIEF JUSTICE ANNETTE KINGSLAND ZIEGLER, Justice on Wheels, Port Washington, Wisconsin, Oct. 15, 2021

This article was originally published on the State Bar of Wisconsin’s Appellate Practice Section Blog, Sua Sponte. Visit the State Bar sections webpage or the Appellate Practice Section webpages to learn more about the benefits of section membership.