In mental hearings under 51.02, 1973 stats., or alcohol or drug abuse hearings under 51.09 (1), 1973 stats., the power to appoint an attorney at public expense, to determine indigency and to fix compensation are judicial and must be exercised by the court or under its direction and cannot be limited by the county board or delegated to a private nonprofit corporation. 63 Atty. Gen. 323.
Unless acting in a clear absence of all jurisdiction, judges are immune from liability for judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. Stump v. Sparkman,
435 U.S. 349 (1978).
An integrated state bar's use of mandatory dues to fund political or ideological activities violates free speech provisions. Keller v. State Bar of California,
496 U.S. 226,
110 L. Ed. 2d 1 (1990).
Court reform of 1977: The Wisconsin supreme court ten years later. Bablitch. 72 MLR 1 (1988).
The Separation of Powers: Control of Courts and Lawyers. Currie & Resh. WBB Dec. 1974.
VII,3
Supreme court: jurisdiction. Section 3
. [
As amended April 1977]
VII,3(1)(1) The supreme court shall have superintending and administrative authority over all courts.
VII,3(2)
(2) The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.
VII,3(3)
(3) The supreme court may review judgments and orders of the court of appeals, may remove cases from the court of appeals and may accept cases on certification by the court of appeals. [
1975 J.R. 13, 1977 J.R. 7, vote April 1977]
The supreme court's authority to issue a writ of error is not dependent upon a specific legislative enactment, but the constitution and statutes relating to its appellate jurisdiction give it the authority to issue such writs as are necessary to exercise its appellate jurisdiction. Shave v. State,
49 Wis. 2d 379,
182 N.W.2d 505.
A writ of error coram nobis cannot be used for the purpose of producing newly discovered evidence affecting only the credibility of a confession. Mikulovsky v. State,
54 Wis. 2d 699,
196 N.W.2d 748.
The supreme court exercises an inherent supervisory power over the practice of the law and this can be more effectively exercised with an independent review. Contrary language, if any, in prior cases withdrawn. Herro, McAndrews & Porter v. Gerhardt,
62 Wis. 2d 179,
214 N.W.2d 401.
The supreme court declines to adopt the equitable doctrine of “substituted judgment" under which a court substitutes its judgment for that of a person incompetent to arrive at a decision for himself or herself. In re Guardianship of Pescinski,
67 Wis. 2d 4,
226 N.W.2d 180.
Courts are endowed with all judicial powers essential to carry out the judicial functions delegated to the courts. These powers are known as incidental, implied, or inherent powers, all of which terms are used to describe those powers that must necessarily be used by the various departments of government in order that they may efficiently perform the functions imposed upon them by the people. In re Hon. Charles E. Kading,
70 Wis. 2d 508,
235 N.W.2d 409 (1975).
Adoption by the supreme court of a rule 17 requiring annual financial disclosure by judges of assets and liabilities was valid and enforceable under the court's inherent power to function as the supreme court and under the court's general superintending control over all inferior courts. In re Hon. Charles E. Kading,
70 Wis. 2d 508,
235 N.W.2d 409 (1975).
A declaration of rights is an appropriate vehicle for the exercise of superintending control over inferior courts. State ex rel. Memmel v. Mundy,
75 Wis. 2d 276,
249 N.W.2d 573.
The court will invalidate legislation only for constitutional violations. State ex rel. La Follette v. Stitt,
114 Wis. 2d 358,
338 N.W.2d 684 (1983).
A statute that required the withholding of a judge's salary for failure to decide cases within a specified time was an unconstitutional intrusion by the legislature into an area of exclusive judicial authority. In Matter of Complaint Against Grady,
118 Wis. 2d 762,
348 N.W.2d 559 (1984).
A court's inherent power to appoint counsel is not derived from an individual litigant's constitutional right to counsel, but rather is inherent to serve the interests of the court. A court may use its inherent discretionary authority to appoint counsel in furtherance of the court's need for the orderly and fair presentation of a case. Joni B. v. State,
202 Wis. 2d 1,
549 N.W.2d 411 (1996),
95-2757.
When confronted with a direct conflict between a decision of the state supreme court and a later decision of the U.S. Supreme Court on a matter of federal law, the court of appeals may certify the case to the state supreme court under s. 809.61. If it does not, or certification is not accepted, the supremacy clause of the U.S. Constitution compels adherence to U.S. Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of the state supreme court. State v. Jennings,
2002 WI 44,
252 Wis. 2d 228,
647 N.W.2d 142,
00-1680.
Determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought. A majority of the court does not have the power to disqualify a judicial peer from performing the constitutional functions of a Wisconsin Supreme Court justice on a case-by-case basis. Aside from actions brought under the Judicial Code, the only constitutional authority to remove a justice rests with the legislature, by impeachment or address, or the voters by recall. State v. Henley,
2011 WI 67,
802 N.W.2d 175,
08-0697.
On the facts of this case, the court exercised its superintending authority to determine that the superintendent of public instruction and the Department of Public Instruction were entitled to counsel of their choice and were not required to be represented by the Department of Justice. Koschkee v. Evers,
2018 WI 82,
382 Wis. 2d 666,
913 N.W.2d 878,
17-2278.
The term “supervisory writ" is both: 1) the general term used in petitioning the court of appeals to exercise its constitutional supervisory authority and in petitioning the supreme court to exercise its constitutional superintending authority; and 2) a new writ the supreme court devised independent of the traditional common law writs. State ex rel. CityDeck Landing LLC v. Circuit Court for Brown County,
2019 WI 15,
385 Wis. 2d 516,
922 N.W.2d 832,
18-0291.
The court will not exercise its superintending power to require that courts employ a specific procedure to establish a sufficient factual basis when accepting an
Alford,
400 U.S. 25 (1970), plea when there is another adequate remedy, by appeal or otherwise, for the conduct of the trial court. State v. Nash,
2020 WI 85,
394 Wis. 2d 238,
951 N.W.2d 404,
18-0731.
The Virginia supreme court was not immune from suit under s. 1983. Supreme Court of Virginia v. Consumers Union,
446 U.S. 719 (1980).
Inherent power and administrative court reform. 58 MLR 133.
VII,4
Supreme court: election, chief justice, court system administration. Section 4
. [
As amended Nov. 1877, April 1889, April 1903, April 1977, and April 2015]
VII,4(1)(1) The supreme court shall have 7 members who shall be known as justices of the supreme court. Justices shall be elected for 10-year terms of office commencing with the August 1 next succeeding the election. Only one justice may be elected in any year. Any 4 justices shall constitute a quorum for the conduct of the court's business.
VII,4(2)
(2) The chief justice of the supreme court shall be elected for a term of 2 years by a majority of the justices then serving on the court. The justice so designated as chief justice may, irrevocably, decline to serve as chief justice or resign as chief justice but continue to serve as a justice of the supreme court.
VII,4(3)
(3) The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court. The chief justice may assign any judge of a court of record to aid in the proper disposition of judicial business in any court of record except the supreme court. [
1876 J.R. 10, 1877 J.R. 1, 1877 c. 48, vote Nov. 1877; 1887 J.R. 5, 1889 J.R. 3, 1889 c. 22, vote April 1889; 1901 J.R. 8, 1903 J.R. 7, 1903 c. 10, vote April 1903; 1975 J.R. 13, 1977 J.R. 7, vote April 1977; 2013 J.R. 16, 2015 J.R. 2, vote April 2015]
Voting and Electoral Politics in the Wisconsin Supreme Court. Czarnezki. 87 MLR 323.
Step One to Recusal Reform: Find an Alternative to the Rule of Necessity. Croy. 2019 WLR 623.
Judicial circuits.
Section 5. [Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
VII,5
Court of appeals.
Section 5
. [
As created April 1977]
VII,5(1)(1) The legislature shall by law combine the judicial circuits of the state into one or more districts for the court of appeals and shall designate in each district the locations where the appeals court shall sit for the convenience of litigants.
VII,5(2)
(2) For each district of the appeals court there shall be chosen by the qualified electors of the district one or more appeals judges as prescribed by law, who shall sit as prescribed by law. Appeals judges shall be elected for 6-year terms and shall reside in the district from which elected. No alteration of district or circuit boundaries shall have the effect of removing an appeals judge from office during the judge's term. In case of an increase in the number of appeals judges, the first judge or judges shall be elected for full terms unless the legislature prescribes a shorter initial term for staggering of terms.
VII,5(3)
(3) The appeals court shall have such appellate jurisdiction in the district, including jurisdiction to review administrative proceedings, as the legislature may provide by law, but shall have no original jurisdiction other than by prerogative writ. The appeals court may issue all writs necessary in aid of its jurisdiction and shall have supervisory authority over all actions and proceedings in the courts in the district. [
1975 J.R. 13, 1977 J.R. 7, vote April 1977]
The court of appeals does not have jurisdiction to entertain an original action unrelated to its supervisory or appellate authority over circuit courts. State ex rel. Swan v. Elections Board,
133 Wis. 2d 87,
394 N.W.2d 732 (1986).
The court of appeals is authorized to exercise its supervisory authority over a chief judge who is ruling on a substitution request. James L.J. v. Walworth County Circuit Court,
200 Wis. 2d 496,
546 N.W.2d 460 (1996),
94-2043.
Only the supreme court has the power to overrule, modify, or withdraw language from a published opinion of the court of appeals. Cook v. Cook,
208 Wis. 2d 166,
560 N.W.2d 246 (1997),
95-1963.
The term “supervisory writ" is both: 1) the general term used in petitioning the court of appeals to exercise its constitutional supervisory authority and in petitioning the supreme court to exercise its constitutional superintending authority; and 2) a new writ the supreme court devised independent of the traditional common law writs. State ex rel. CityDeck Landing LLC v. Circuit Court for Brown County,
2019 WI 15,
385 Wis. 2d 516,
922 N.W.2d 832,
18-0291.
A Shift in the Bottleneck: The Appellate Caseload Problem Twenty Years After the Creation of the Wisconsin Court of Appeals. Garlys. 1998 WLR 1547.
VII,6
Circuit court: boundaries. Section 6
. [
As amended April 1977] The legislature shall prescribe by law the number of judicial circuits, making them as compact and convenient as practicable, and bounding them by county lines. No alteration of circuit boundaries shall have the effect of removing a circuit judge from office during the judge's term. In case of an increase of circuits, the first judge or judges shall be elected. [
1975 J.R. 13, 1977 J.R. 7, vote April 1977]
VII,7
Circuit court: election. Section 7
. [
As amended April 1897, Nov. 1924, and April 1977] For each circuit there shall be chosen by the qualified electors thereof one or more circuit judges as prescribed by law. Circuit judges shall be elected for 6-year terms and shall reside in the circuit from which elected. [
1895 J.R. 8, 1897 J.R. 9, 1897 c. 69, vote April 1897; 1921 J.R. 24S, 1923 J.R. 64, 1923 c. 408, vote Nov. 1924; 1975 J.R. 13, 1977 J.R. 7, vote April 1977]
VII,8
Circuit court: jurisdiction. Section 8
. [
As amended April 1977] Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by law. The circuit court may issue all writs necessary in aid of its jurisdiction. [
1975 J.R. 13, 1977 J.R. 7, vote April 1977]
Although prohibition is not the appropriate remedy to suppress prosecution on an illegal search warrant, the supreme court treated the case as a petition for habeas corpus. State ex rel. Furlong v. Waukesha County Court,
47 Wis. 2d 515,
177 N.W.2d 333.
Certiorari cannot be used to upset the legislative discretion of a city council but the court should review the council's action to determine whether there was a rational factual basis for it. The review is limited to the record consisting of the petition and the return to the writ, plus matters of which the court could take judicial notice. State ex rel. Hippler v. Baraboo,
47 Wis. 2d 603,
178 N.W.2d 1.
A writ of prohibition may not be used to test the admissibility of evidence at an impending trial. State ex rel. Cortez v. Bd. of F. & P. Comm.,
49 Wis. 2d 130,
181 N.W.2d 378.
Jurisdiction depends not on whether the relief asked for is available, but on whether the court has the power to hear the kind of action brought. It is not defeated by the possibility that averments in a complaint might fail to state a cause of action, for any such failure calls for a judgment on the merits not for a dismissal for want of jurisdiction. Murphy v. Miller Brewing Co.,
50 Wis. 2d 323,
184 N.W.2d 141.
Mandamus is a discretionary writ and the order of a trial court refusing to quash it will not be reversed except for an abuse of discretion. A court can treat it as a motion for declaratory relief. Milwaukee County v. Schmidt,
52 Wis. 2d 58,
187 N.W.2d 777.
Differences between common law and statutory certiorari are discussed. Browndale International v. Board of Adjustment,
60 Wis. 2d 182,
208 N.W.2d 121.
The statutory designation of circuit court branches as criminal court branches does not deprive other branches of criminal jurisdiction. Dumer v. State,
64 Wis. 2d 590,
219 N.W.2d 592.
Circuit court review of a decision of the city of Milwaukee Board of Fire and Police Commissioners was proper via writ of certiorari. Edmonds v. Board of Fire & Police Commrs.,
66 Wis. 2d 337,
224 N.W.2d 575.
A judge having jurisdiction of the person and subject matter involved and acting within that jurisdiction and in his or her judicial capacity, is exempt from civil liability. Abdella v. Catlin,
79 Wis. 2d 270,
255 N.W.2d 516.
The circuit courts are constitutional courts with plenary jurisdiction. They do not depend solely upon statute for their powers. However in certain cases with vast social ramifications not addressed by statute, prudence requires the courts to refuse to exercise their jurisdiction. As such, circuit courts are prohibited from exercising jurisdiction regarding sterilization of incompetents. In Matter of Guardianship of Eberhardy,
102 Wis. 2d 539,
307 N.W.2d 881 (1981).
Because courts have exclusive criminal jurisdiction, criminal charges against the defendant were not collaterally estopped even though a parole revocation hearing examiner concluded that defendant's acts did not merit parole revocation. State v. Spanbauer,
108 Wis. 2d 548,
322 N.W.2d 511 (Ct. App. 1982).
While circuit courts possess plenary jurisdiction not dependent upon legislative authorization, under some circumstances they may lack competency to act. Interest of L.M.C.,
146 Wis. 2d 377,
430 N.W.2d 352 (Ct. App. 1988).
Challenges to a circuit court's competency are waived if not raised in the circuit court, subject to the reviewing court's inherent authority to overlook a waiver in appropriate cases or engage in discretionary review of a waived competency challenge pursuant to s. 751.06 or 752.35. Lack of competency is not jurisdictional and does not result in a void judgment. Accordingly, it is not true that a motion for relief from judgment on grounds of lack of circuit court competency may be made at any time. Village of Trempealeau v. Mikrut,
2004 WI 79,
273 Wis. 2d 76,
681 N.W.2d 190,
03-0534. See also City of Eau Claire v. Booth,
2016 WI 65,
370 Wis. 2d 595,
882 N.W.2d 738,
15-0869.
A circuit court may lack competency to render a valid order or judgment when the parties seeking judicial review fail to meet certain statutory requirements. Not every failure to comply with statutory requirements will deprive the court of competency, however. Only when the failure to abide by a statutory mandate is central to the statutory scheme of which it is a part will the circuit court's competency to proceed be implicated. Xcel Energy Services, Inc. v. LIRC,
2013 WI 64,
349 Wis. 2d 234,
833 N.W.2d 665,
11-0203.
Although cases sometimes use the words forfeiture and waiver interchangeably, the two words embody very different legal concepts. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. Challenges to court competency are forfeited if not timely raised in the circuit court. Properly construed, although
Mikrut,
2004 WI 79, says “waiver," it means “forfeiture." City of Eau Claire v. Booth,
2016 WI 65,
370 Wis. 2d 595,
882 N.W.2d 738,
15-0869.
A circuit court lacks competency but retains subject matter jurisdiction when the court enters a civil forfeiture judgment under a municipal ordinance for a first-offense operating while intoxicated (OWI) that factually should have been criminally charged as a second-offense OWI under s. 346.65 (2) due to an undiscovered prior countable conviction. Unlike defects in subject matter jurisdiction, challenges to circuit court competency may be forfeited. In this case, the defendant forfeited the right to challenge a 1992 first-offense OWI judgment by failing to timely raise the challenge. City of Eau Claire v. Booth,
2016 WI 65,
370 Wis. 2d 595,
882 N.W.2d 738,
15-0869.
This section provides that “the circuit court shall have . . . such appellate jurisdiction in the circuit as the legislature may prescribe by law." The legislature has not granted the circuit courts appellate jurisdiction over rulings by referees. Therefore, a provision in a circuit court order of reference that the circuit court's review of the referee's rulings shall be based on the referee's erroneous exercise of discretion contravened the constitution, statutes, and rules regarding circuit court and appellate court authority and practice. Universal Processing Services v. Circuit Court of Milwaukee County,
2017 WI 26,
374 Wis. 2d 26,
892 N.W.2d 267,
16-0923.
This section confers broad jurisdiction on circuit courts to hear all matters civil and criminal within this state “except as otherwise provided by law." The Wisconsin Arbitration Act, ch. 788, comprises one constitutionally-permissible exception to a circuit court's original jurisdiction. A circuit court possesses only limited, statutorily enumerated powers with respect to a private arbitration. A circuit court has no authority to halt a contractually agreed upon arbitration. State ex rel. CityDeck Landing LLC v. Circuit Court for Brown County,
2019 WI 15,
385 Wis. 2d 516,
922 N.W.2d 832,
18-0291.
VII,9
Judicial elections, vacancies. Section 9. [
As amended April 1953 and April 1977] When a vacancy occurs in the office of justice of the supreme court or judge of any court of record, the vacancy shall be filled by appointment by the governor, which shall continue until a successor is elected and qualified. There shall be no election for a justice or judge at the partisan general election for state or county officers, nor within 30 days either before or after such election. [
1951 J.R. 41, 1953 J.R. 12, vote April 1953; 1975 J.R. 13, 1977 J.R. 7, vote April 1977]
VII,10
Judges: eligibility to office. Section 10. [
As amended Nov. 1912 and April 1977]
VII,10(1)(1) No justice of the supreme court or judge of any court of record shall hold any other office of public trust, except a judicial office, during the term for which elected. No person shall be eligible to the office of judge who shall not, at the time of election or appointment, be a qualified elector within the jurisdiction for which chosen.
VII,10(2)
(2) Justices of the supreme court and judges of the courts of record shall receive such compensation as the legislature may authorize by law, but may not receive fees of office. [
1909 J.R. 34, 1911 J.R. 24, 1911 c. 665, vote Nov. 1912; 1975 J.R. 13, 1977 J.R. 7, vote April 1977]
Sub. (1) prohibits a circuit judge from holding a nonjudicial office of public trust during the full period of time for which he or she is elected to serve in a judicial position, even if the judge chooses to resign before that term would otherwise expire. The period of time constituting the “term for which elected" is set when a judge or justice is elected, and is thereafter unalterable by means of resignation. Wagner v. Milwaukee County Election Commission,
2003 WI 103,
263 Wis. 2d 709,
666 N.W.2d 816,
02-0375.
An “office of public trust" does not refer only to an elective office. “Judicial office," as used in Article VII, should be construed as referring to an office that is located within the judicial branch of government created by that article. Membership on the government accountability board is an office of public trust but is not a judicial office within the meaning of Art. VII, s. 10, and therefore an individual who has resigned from the office of judge may not serve as a member of the board for the duration of the term to which the individual was elected to serve as a judge. OAG 4-08.
Terms of courts; change of judges. Section 11. [Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
VII,11
Disciplinary proceedings. Section 11
. [
As created April 1977] Each justice or judge shall be subject to reprimand, censure, suspension, removal for cause or for disability, by the supreme court pursuant to procedures established by the legislature by law. No justice or judge removed for cause shall be eligible for reappointment or temporary service. This section is alternative to, and cumulative with, the methods of removal provided in sections 1 and 13 of this article and section 12 of article XIII. [
1975 J.R. 13, 1977 J.R. 7, vote April 1977]
VII,12
Clerks of circuit and supreme courts. Section 12
. [
As amended Nov. 1882 and April 2005]
VII,12(1)
(1) There shall be a clerk of circuit court chosen in each county organized for judicial purposes by the qualified electors thereof, who, except as provided in sub. (2), shall hold office for two years, subject to removal as provided by law.
VII,12(2)
(2) Beginning with the first general election at which the governor is elected which occurs after the ratification of this subsection, a clerk of circuit court shall be chosen by the electors of each county, for the term of 4 years, subject to removal as provided by law.
VII,12(3)
(3) In case of a vacancy, the judge of the circuit court may appoint a clerk until the vacancy is filled by an election.
VII,12(4)
(4) The clerk of circuit court shall give such security as the legislature requires by law.
VII,12(5)
(5) The supreme court shall appoint its own clerk, and may appoint a clerk of circuit court to be the clerk of the supreme court. [
1881 J.R. 16A, 1882 J.R. 3, 1882 c. 290, vote Nov. 1882; 2003 J.R. 12, 2005 J.R. 2, vote April 2005]
VII,13
Justices and judges: removal by address. Section 13
. [
As amended April 1974 and April 1977] Any justice or judge may be removed from office by address of both houses of the legislature, if two-thirds of all the members elected to each house concur therein, but no removal shall be made by virtue of this section unless the justice or judge complained of is served with a copy of the charges, as the ground of address, and has had an opportunity of being heard. On the question of removal, the ayes and noes shall be entered on the journals. [
1971 J.R. 30, 1973 J.R. 25, vote April 1974; 1975 J.R. 13, 1977 J.R. 7, vote April 1977]
VII,14
Municipal court.
Section 14
. [
As amended April 1977] The legislature by law may authorize each city, village and town to establish a municipal court. All municipal courts shall have uniform jurisdiction limited to actions and proceedings arising under ordinances of the municipality in which established. Judges of municipal courts may receive such compensation as provided by the municipality in which established, but may not receive fees of office. [
1975 J.R. 13, 1977 J.R. 7, vote April 1977]
A municipal court has authority to determine the constitutionality of a municipal ordinance. City of Milwaukee v. Wroten,
160 Wis. 2d 207,
466 N.W.2d 861 (1991).
The municipal court did not lack subject matter jurisdiction over an operating while intoxicated (OWI) case that was incorrectly charged as a first-offense ordinance violation instead of a second-offense criminal violation. At the time the proceeding in municipal court commenced, it was based on an alleged ordinance violation, and therefore jurisdiction “arose under” the ordinance of the municipality for the purposes of this section. City of Cedarburg v. Hansen,
2020 WI 11,
390 Wis. 2d 109,
938 N.W.2d 463,
18-1129.
VII,15
Justices of the peace.
Section 15
. [
Amended April 1945; repealed April 1966; see 1943 J.R. 27, 1945 J.R. 2, vote April 1945; 1963 J.R. 48, 1965 J.R. 50, vote April 1966.]
VII,16
Tribunals of conciliation. Section 16
. [
Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
VII,17
Style of writs; indictments. Section 17
. [
Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
VII,18
Suit tax. Section 18
. [
Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
VII,19
Testimony in equity suits; master in chancery. Section 19
. [
Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
