Wisconsin Prosperity Network v. Myse

2012 WI 27, 810 N.W.2d 356, 339 Wis. 2d 243, 2012 WL 897758, 2012 Wisc. LEXIS 22

Opinions

PER CURIAM.

¶ 1. On August 9, 2010, a petition for an original action was filed by Wisconsin Prosperity Network, Inc., The Maclver Institute for Public Policy, Inc., Americans for Prosperity, Reverend David King, Concerned Citizens of Iowa County, Inc., Daniel O. Curran, Oriannah Paul, The Sheboygan Liberty Coalition, Kimberly J. Simac, and Northwoods Patriot Group, Inc. A response was filed by Gordon Myse, Thomas Barland, Michael Brennan, Thomas Cane, Gerald C. Nichol, David Deininger, and Kevin Kennedy, each in his respective official capacity as an officer, member, counsel or employee of the Wisconsin Government Accountability Board (GAB). On August 13, 2010, this court enjoined the GAB from enforcing the amendments to Wis. Admin. Code § GAB 1.28 published on July 31, 2010, pending further order of this court.

¶ 2. On November 30, 2010, after considering the petitioners' and respondents' briefs regarding whether the petition warranted the exercise of this court's original jurisdiction, this court granted leave to commence the original action and assumed jurisdiction over the action. On the same day, we granted a motion by Mary Bell and the Wisconsin Education Association Council to intervene.

¶ 3. The court received briefs on the merits from the parties and held oral argument on September 6, 2011. After considering the parties' briefs and arguments, the six participating justices unanimously agree that the August 13, 2010 order enjoining the respondents from enforcing the July 31, 2010 amendments to Wis. Admin. Code § GAB 1.28 should be vacated. Nevertheless, the court is equally divided on the rationale. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks would conclude that the GAB had authority under Wis. Stat. §§ 5.05(l)(f) and 227.11 to promulgate the July 31, 2010 amendments to Wis. Admin. Code § GAB 1.28. They would conclude that the amendments are not facially invalid under the First Amendment of the United States Constitution or Article I, Section 3 of the Wisconsin Constitution. Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman would dismiss the action on the ground that an original action was improvidently granted.

¶ 4. When this court splits evenly, the court of appeals' decision is affirmed if the case is before this court on a petition for review, or the cause is remanded to the court of appeals for further proceedings if it is before this court on a bypass or certification. State v. Elam, 195 Wis. 2d 683, 684-85, 538 N.W.2d 249 (1995). This case, however, is not before the court on a petition for review, bypass, or certification but rather as an original action pursuant to a petition for leave to commence an original action seeking declaratory relief and a request for temporary injunctive relief enjoining the enforcement of the amendments to Wis. Admin. Code § GAB 1.28.

¶ 5. Accordingly, the original action pending before this court is dismissed and the August 13, 2010 order enjoining the respondents from enforcing the July 31, 2010 amendments to Wis. Admin. Code § GAB 1.28 is vacated.

¶ 6. Justice DAVID T. PROSSER, JR. withdrew from participation.