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April 10, 2011

Judge Sumi and the Wisconsin Supremes

By Clarice Feldman and Rosslyn Smith

Following Wisconsin politics these days can be as entertaining as watching a soap opera.  There was the bug out of the fleebaggers, the legislative maneuvering to get around the fleebaggers, Judge Sumi's ruling that enjoined the wrong party, the Wisconsin Supreme court election, lost and now apparently won for the good guy.  In all the excitement of the dramatic flip of the election results, this development late last week went pretty much unnoticed.  Drew Singer at Jurist.org


Wisconsin Attorney General J.B. Van Hollen on Thursday filed a Petition for Supervisory Writ directly to the state Supreme Court over a circuit court judge's temporary blocking of a controversial bill that limits the rights of public employee unions. The suit claims that Dane County Circuit Court Judge Maryann Sumi did not have the constitutional authority to block the publication of the Budget Repair Bill . It then asks the Wisconsin Supreme Court . to immediately take jurisdiction of the case and dismiss it. A Petition for Supervisory Writ is not a direct appeal of any lower court decision, but rather a procedure that starts a new action altogether because the petitioner claims a judge violated his or her constitutional authority

The later part of this statement needs to be emphasized. Attorney General Van Hollen is not asking the Supreme Court to rule that Judge Sumi's legal reasoning is wrong.  He is arguing that neither Dane County District Ismael Ozanne who brought the case or Judge Sumi have any legal say in the matter.   Specifically the argument is that under the Wisconsin constitution Judge Sumi has no authority to enjoin the legislature for allegedly failing to follow one of the legislature's own administrative procedures. 

The requested relief is a writ of mandamus. Mandamus means command. The writ of mandamus is the legal equivalent of the court administering a whap on the side of the head to an official who is not doing his or her duty.   Mandamus is a rare form of relief but one with a distinguished history in the American legal system.  Marbury v. Madison, the first case in which the Supreme Court held that it had the authority to declare laws unconstitutional, involved a request for a writ of mandamus.  

I heard more than a first year law student normally hears about the now almost archaic writ of mandamus. That's because my professor of civil procedure, Norman Amaker, had been with the NAACP Legal Defense Fund in the early 1960s.  In that post he had filed writs of mandamus against officials in both the executive and judicial branches of government. In those days a few dead ender segregationists seemed to think that both acts of Congress and Supreme Court decisions were strictly advisory in nature. 

It would be a delicious irony to have just such a whap administered to a self described progressive like Judge Sumi for denying Wisconsin citizens the right to have their duly elected legislature go about the voters' business unmolested by her interference. As Jonah Goldberg delightfullly pointed out, the same people who think the US Consitution is "so much clay to be remolded and shaped to fit the contours of whatever form liberal conventional wisdom takes this year."  also seem to think that policies from the 1960s are somehow set in stone.  They aren't, but the people who cling to such ideas in the face of a whole different set of worldwide economic realities may rightfully be called boneheaded.
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