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Separation of Powers – Shared Power Regarding Judicial Continuances

State v. Charles Chvala, 2003 WI App 257, affirmed2005 WI 30
For Chvala: Lawton & Cates


¶1. The criminal complaint in this action charges Charles Chvala, a senator in the Wisconsin Legislature, with extortion, misconduct in public office, and violations of campaign finance statutes. The issue on appeal is whether, as Chvala contends, Wis. Stat. § 757.13 (2001-02) prohibits the trial court from scheduling the trial in this case before the last general business floor session ends on March 11, 2004. Section 757.13 provides:

Continuances; legislative privilege. When a witness, party or an attorney for any party to any action or proceeding in any court or any commission, is a member of the Wisconsin legislature, in session, that fact is sufficient cause for the adjournment or continuance of the action or proceeding, and the adjournment or continuance shall be granted without the imposition of terms.

¶2. We conclude that Wis. Stat. § 757.13 violates the doctrine of separation of powers if it is construed to mandate the court to grant Chvala’s request that the trial not be scheduled until after March 11, 2004. We therefore construe the statute to direct courts to consider, in the sound exercise of their discretion, that a witness, party, or party’s attorney is a member of the legislature in session when such persons request a continuance or adjournment for that reason. Because the trial court correctly construed § 757.13 in denying Chvala’s request that the trial be scheduled after March 11, 2004, we affirm the trial court’s order.

The court summarizes the doctrine in these terms:

¶9. Whether a statute violates the doctrine of separation of powers also presents a question of law. Barland v. Eau Claire County, 216 Wis. 2d 560, 572, 575 N.W.2d 691 (1998). The doctrine of separation of powers, while not explicitly set forth in the Wisconsin Constitution, is implicit in the division of governmental powers among the judicial, legislative, and executive branches. State ex rel. Friedrich v. Dane County Cir. Ct., 192 Wis. 2d 1, 13, 531 N.W.2d 32 (1995). “The Wisconsin constitution creates three separate coordinate branches of government, no branch subordinate to the other, no branch to arrogate to itself control over the other except as is provided by the constitution, and no branch to exercise the power committed by the constitution to another.” State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1982). Each branch has a core zone of exclusive authority into which the other branches may not intrude. Friedrich, 192 Wis. 2d at 13. In these core areas, any exercise of authority by another branch of government is unconstitutional. Barland, 216 Wis. 2d at 573.

¶14. In determining whether a statute unconstitutionally infringes upon judicial power, this court must first consider whether the subject matter of the statute in question falls within the power constitutionally granted to the legislature. Friedrich, 192 Wis. 2d at 14. If it does, we must then inquire whether the subject matter of the statute also falls within the judiciary’s constitutional grant of power. Id. at 14-15.

Applying the doctrine, the court is “persuaded for two reasons that the subject matter of Wis. Stat. § 757.13 falls within the constitutional powers of the legislature.” ¶16. First, the legislature has authority to legislate with respect to its ability to carry out its own business (which means ensuring the availability of its own members); second it has authority to enact legislation for general welfare. ¶¶17-18. And, because the judiciary has inherent authority to manage its own docket, controlling continuances and adjournments is within the constitutional authority of the judiciary. ¶19. Finally, if § 757.13 were construed as mandating continuance/adjournment, a violation of separation of powers would result, because of the “direct and significant interference with the judiciary’s ability to exercise its inherent authority to decide, on the specific facts before it, whether the interests of efficiency and fairness will or will not be best served by a continuance or adjournment.” ¶21. Instead, the statute is construed “to direct the courts to consider, in the sound exercise of their discretion, that a witness, party, or party’s attorney is a member of the legislature in session when such person seeks a continuance or adjournment for that reason.”

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