State Ex Rel. Swan v. Elections Board , 133 Wis. 2d 87 ( 1986 )

PER CURIAM.

The Elections Board has petitioned for review of a decision of the court of appeals directing it to certify Monroe Swan as a candidate for the Democratic Party nomination for state senator from the 6th senate district at the September 1984 primary election. We have concluded that the court of appeals did not have jurisdiction over this action. So concluding, by order dated August 29, 1984, we have vacated the decision of the court of appeals and dismissed the petition for review. This opinion explains our reasons for that order.

This action was commenced in the court of appeals by Swan utilizing the procedure for commencing original actions in this court. The petition on behalf of Swan described a dispute between Swan and the staff of the Elections Board, which had denied certification of Swan as a candidate entitled to have his name placed on the ballot. The petition asked the court of appeals to exercise original jurisdiction because the matter was publici juris. The relief sought was a declaration that sec. 8.30(4), Stats., providing that the name of an unpardoned felon should not be placed on the ballot for state or local office, was unconstitutional. The petition asked that the finding of unconstitutionality be implemented by a writ of mandamus ordering the Elections Board to certify Swan, who had been convicted of two federal felonies and had served his sentence, as a candidate for state senator from the 6th senate district.

After the petition for original jurisdiction had been filed in the court of appeals, but before it had been ruled on, Swan petitioned this court for bypass of the court of appeals. Bypass was denied. The court of appeals then reached its decision purporting to exercise original jurisdiction and finding sec. 8.30(4), Stats., unconstitutional because it prescribed qualifications for the office of state senator in addition to those prescribed by the constitution. It also exercised its discretion to grant relief by mandamus. One judge of the court of appeals dissented from the decision to grant mandamus, but agreed with the decision on other issues.

When the board’s petition for review of the decision of the court of appeals was filed, we raised sua sponte the question whether the court of appeals had jurisdiction of an original action and ordered the parties to brief the point. Our order of August 20, 1984, noted that the court of appeals had not been granted supervisory jurisdiction over the Elections Board and had not been granted direct appellate jurisdiction over the decisions of the board.

The parties briefed the jurisdictional issue pursuant to our order, and a brief amicus curiae was filed. The parties and the amicus curiae argued that the court of appeals had jurisdiction over this action. We are not persuaded.

Art. VII, sec. 5(3) of the Wisconsin Constitution provides as follows:

“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.”

This provision grants the court of appeals supervisory jurisdiction over actions and proceedings in the circuit courts. It does not grant supervisory jurisdiction over matters pending before administrative bodies. In fact, the court of appeals has held in a well reasoned opinion that it has no supervisory jurisdiction over the chief judge of a judicial administrative district acting in his administrative capacity. State ex rel. Gilboy v. Circuit Court for Waukesha County, 119 Wis. 2d 27, 349 N.W. 2d 712 (Ct. App. 1984).

Art. VII, sec. 5(3) permits the legislature to grant appellate jurisdiction to the court of appeals, including jurisdiction to review the decisions of administrative agencies. The legislature, however, has granted the court of appeals appellate jurisdiction only over the judgments and orders of circuit courts, sec. 808.03, Stats. Jurisdiction over an action to review the decision of an administrative agency is granted to the circuit court, sec. 227.16(l)(a), appeal from the final judgment of that court being to the court of appeals, sec. 227.21.

The question is whether art. VII, sec. 5(3) grants the court of appeals power to issue an original prerogative writ in cases where there is no basis for exercising its supervisory or appellate powers. Prior to the creation of the court of appeals this court recognized two uses of the prerogative writs. One use was to exercise superintending control or to facilitate appellate review. The other was to exercise original jurisdiction in cases raising questions publici juris. At one time the decided cases suggested that the circuit courts, which also had power to issue prerogative writs, did not have authority to use them as the vehicle for raising questions publici juris. However, in Petition of Heil, 230 Wis. 428, 284 N.W. 42 (1939), it was held that the jurisdiction of the circuit courts in such matters was concurrent with the supreme court, subject to exclusion if this court exercised its power to hear original actions.

The reference to prerogative writs in art. VII, sec. 5(3) is ambiguous. It might be taken to mean a pleading initiating an action to determine a question publici juris. That is how the parties and amicus curiae would have us construe it. It might also be taken to mean an application for relief by one of the traditional writs when supervisory or appellate jurisdiction exists and there is no other adequate remedy. That is how we construe it.

Being ambiguous, the language of art. VII, sec. 5(3) must be construed in the light of other constitutional provisions and the purpose behind creation of the court of appeals. Under the court reorganization plan of the constitutional revision in 1977, there are two levels of court with original jurisdiction. In addition to having appellate jurisdiction over all courts, the supreme court “may hear original actions and proceedings.” Art. VII, sec. 3(2). Except as otherwise provided by law, the circuit courts have original jurisdiction in all civil and criminal matters. Art. VII, sec. 8. The court of appeals has appellate jurisdiction as provided by law, “but shall have no original jurisdiction other than by prerogative writ.” (Emphasis supplied.) Art. VII, sec. 5(3). When the constitution grants original jurisdiction to the supreme court and the circuit courts, it does so not hedged about with the qualifications that are found in the constitution with respect to the court of appeals.

It is significant that the constitutional grant of power to the court of appeals is phrased differently than the grant to the supreme court. The supreme court’s jurisdiction is clearly plenary, while the grant to the court of appeals is on its face something less: “The appeals court... shall have no original jurisdiction other than by prerogative writ.” This limitation is reflected in sec. 752.01(2), Stats., which provides, “The court of appeals has original jurisdiction only to issue prerogative writs.” (Emphasis supplied.)

It should also be noted that the jurisdictional section, art. VII, sec. 5(3), of the constitution, by limiting the exercise of original jurisdiction to a prerogative writ, specifically precludes the possibility of bringing an original action in the court of appeals by declaratory judgment, the usual method of commencing an original action in this court or in the circuit court. There could hardly be stronger evidence that the original action jurisdiction of the court of appeals is very different from that of this court or of the circuit court.

Looking to our constitutional structure, it is apparent the supreme court is intended to have a different function from that of the court of appeals. The court of appeals is intended to be a high-volume, error-correcting court, having a close relationship to the circuit courts in respect to the superintending control of circuit court functions. On the other hand, this court, under our constitutional structure, is intended to make final determinations affecting state law, to supervise the development of the common law, and to assure uniformity of precedent throughout the state. The supreme court is primarily concerned with the institutional functions of our judicial system, while the court of appeals is charged primarily with error correcting in the individual case. Throughout our constitutional scheme, there is revealed the pattern that decisions of the court of appeals are provisional only and are subject to review by the supreme court.¹ Matters which are publici juris are matters which by definition are assumed to be of paramount importance. It is thus only logical, under our constitutional scheme, that questions publici juris must be brought here unless a party is content to exercise the only constitutional alternative — the bringing of an action in the circuit court and then pursuing a time-consuming course of appeal and ultimate review in this court.

It is also significant that Robert J. Martineau, reporter for the Judicial Council’s Committee on Appellate Practice and Procedure, and Richard R. Malmgren, executive director of the Judicial Council, both of whom were instrumental in the drafting of the 1977 constitutional revisions of the court system which established the court of appeals, wrote, in respect to the effect of art. VII, sec. 5(3) of the constitution:

“The distinction between the original jurisdiction to issue prerogative writs and supervisory jurisdiction is susceptible of being interpreted to mean that the Court of Appeals, like the Supreme Court under prior constitutional provisions, has two types of jurisdiction, original jurisdiction and supervisory jurisdiction. The difference between the two in the Supreme Court was set out in Petition of Heil, 230 Wis. 428, 284 N.W. 42 (1939). This opinion makes it clear that the power of the Supreme Court to take original jurisdiction of a case is unique because of its position as the state’s highest tribunal. The same is obviously not true of the Court of Appeals and thus the reference to the power in the Court of Appeals to issue prerogative writs should not be construed to mean it can take original jurisdiction of cases which are publici juris.

“What then is the non-appellate jurisdiction of the Court of Appeals? Is it only supervisory? If so, is the grant of power to issue prerogative writs redundant? One obvious reason for referring to the prerogative writs is to insure that the Court of Appeals can utilize the writs to enforce the Court’s supervisory jurisdiction. The prerogative writs can also be used to test the legality of an action by a lower court by addressing the writ to the person or body which is carrying out the order of the lower court. Examples of this are the writ of habeas corpus addressed to a sheriff in custody of the petitioner to test the legality of his confinement under an order of a court, or the writ of prohibition, mandamus, or injunction to test the legality of a trial court order directing a public official or body to do or not to do some act. The action in the Court of Appeals is original in that it is not an appeal from the lower court order, but it is not original in the sense of the original jurisdiction of the Supreme Court... .” Martineau & Malmgren, Wisconsin Appellate Practice, p. 18 (1978).

The foregoing considerations persuade us that the court of appeals is a court of limited, rather than general, writ jurisdiction. The references in the constitution to appellate and supervisory jurisdiction limit and define the power of the court of appeals to issue prerogative writs. The issuance of a prerogative writ by the court of appeals is an exercise of original jurisdiction. However, it is not an exercise of jurisdiction independent of the court’s appellate and supervisory powers. The court of appeals has power to decide questions pub-lici juris which are brought to it by appeal or which it considers under its supervisory jurisdiction. It does not have power to issue a prerogative writ based solely on the importance of the question presented without any other jurisdictional underpinning.

Our decision does not conflict with sec. (rule) 809.51(1), Stats., which states that a petition may be filed requesting the court of appeals to exercise its supervisory jurisdiction or its original jurisdiction to issue a prerogative writ over a court and presiding judge or other person or body. The words, “or its original jurisdiction to issue a prerogative writ,” were added by supreme court order effective January 1, 1982. 104 Wis. 2d xi. This amendment was requested by the Judicial Council. Its note states in part, “Rule 809.51 governs the procedures for seeking a petition for supervisory writ or original jurisdiction prerogative writ in the court of appeals.”

As we construe the amendment to sec. (rule) 809.51(1), Stats., it does not recognize a question publici juris as an independent ground for exercising original jurisdiction. It merely makes clear that, where grounds for exercising original jurisdiction exist, a prerogative writ can be used to exercise that jurisdiction. It should be remembered that a writ brought in any appellate court for the purpose of exercising superintending or supervisory powers is an original action, i.e., a new action designed to affect or control the litigants or the court in respect to a matter then at issue or subject to the action of a lower court. Such original action is, however, not brought to decide with finality a matter publici juris.

We conclude that the court of appeals does not have jurisdiction to entertain an original action unrelated to its supervisory or appellate authority over the circuit court. Original jurisdiction in the sense intended by the petition of Monroe Swan for the determination ab initio of a matter publici juris under the constitution lies only in the circuit court or in this court.

By order of this court on August 29,1984, the decision of the court of appeals has been vacated and the petition for review has been dismissed.

WILLIAM A. BABLITCH, J„ took no part.

1 See Wis. Const, art. VII, sec. 3, and secs. 808.10, and 809.62, Stats., concerning review of court of appeals’ decisions. Unpublished opinions of the court of appeals are without precedential value, sec. 809.23, Stats.