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Wisconsin Constitution – Supreme Court Superintending Authority

State v. Jerrell C.J., 2005 WI 105, reversing 2004 WI App 9
For Terrell C.J.: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: (Concurrence of Chief Justice, but one that marshals majority of votes, hence represents holding:)

¶66      The powers of the Wisconsin Supreme Court are defined in several ways and have diverse origins.  Some are explicitly set forth in Article VII, Section 3 of the Wisconsin Constitution: appellate and original jurisdiction and superintending and administrative authority.  Others are derived from the state constitutional separation of powers doctrine, as well as from the court’s very existence, especially this court’s being the highest court in the state, the court of last resort.  Indeed, “it is well established that this court has express, inherent, implied and incidental powers” [25] to manage the sound operation of the judicial system in our tripartite form of government.  …¶69      When all is said and done, Arneson v. Jezwinski, 206 Wis. 2d 217, 225-26, 556 N.W.2d 721 (1996), quoted with approval in State ex rel. Hass v. Wisconsin Court of Appeals, 2001 WI 128, 248 Wis. 2d 634, 640, 636 N.W.2d 707 (2001), summarizes the case law interpreting our superintending authority and sets forth the present and long-standing view that the court’s superintending authority is a broad power to be exercised for controlling the course of litigation and is shaped by the continuing necessity that this court carry out its function as a supreme court. …

¶92      The judiciary article of the Wisconsin Constitution was amended in 1977. The supreme court’s superintending authority was placed in a one-sentence subsection separated from the other subsections granting appellate and original jurisdiction and separated from any reference to writs. Article VII, Section 3(1) of the 1977 amendment reads simply as follows regarding the court’s superintending powers: “The supreme court shall have superintending and administrative authority over all courts.”¶93      Thus, in 1977, presumably aware of the historical case law interpreting the 1848 constitution and the court’s exercise of superintending power to adopt and enforce the Code of Judicial Ethics, the legislature and the people of the state decoupled the court’s superintending authority over all state courts from the writs specified in the 1848 constitution and thereby gave their imprimatur to the court’s historical interpretation of the 1848 language attributing to the court broad constitutional superintending power to control litigation. Thus, the 1977 constitutional amendment implemented Justice Adam Smith’s broad explication of the court’s superintending power set forth in the Blossom case and in Chief Justice Wilkie’s opinion in Kading.


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