holperin complaint

8/7/2019 Holperin complaint

1/26

STATE OF WISCONSIN CIRCUIT COURT OCONTO'COUNTY

KEVIN BARTIIEL17485 County Road FLakewood, Wi. 54138, Case No.: II C(/IOf).

JAMES HOLPERIN3575 Monheim RoadConover, WI 54519.

t t r' 1 ;; r~.t; "i~ ~ .J . 1' 1 ~J 1

Plaintiff, CaseCode 309?~~:; .VI

Defendant.

BRIEF IN SUPPOn.T OF MOTION :FOR EMERGENCY PER..EM.1tTORY WRIT OFMANDAMUS

lames Holperin has caused and continues t o cause enO:rn10USand irreparable harm to thepeople of Oconto County, the electors of'the 12th Senate District and the People of the State ofWisconsin by his failure to carry-out his sworn duty as the elected Senator of the 12th SenateDistrict, OUI Supreme Court has explicitly noted, u[I]t is the settled rule of this state ... t ha t . .. a nycitizen is entitled to a writ of mandamus to enforce the performance of such public duty." Stateex. rel. Burnham v, Cornwall, 97 Wis. 565,56768,73 N.W. 6 3 (1897). This action seeks, on anem~rgency basis, a Writ of Mandamus directing Senator Holperin to immediately appeal' at theSena te Chambe rs and thereafter respond to the Call of the Majority Leader in order that aquorum may b~ achieved to consider budget repair legislation,r . BACKGROTlNR

1

Kevin Barthel is a n Oconto County resident and he is a voter in the 1ih Senate District .... .

James Halperin is the elected Senator of Wlsconsln's 12th Senate District and, as such, he, like

1 6 0 l v i O Wd Lv l# 1 6 : 0 1 1 1 0 6 / 1 0 / S 0 9 S S S 988 0 2 : 6 3 8 I .in M V l I > l S N I M 3 Z C 1 > 1: U JO ~ : : l


2/26

, other public .officials took an ?ath "[f]aithfully to discharge the duties of their respective officesto the best of their ability." Wi. Const, Art. VIII, 28. Senator Holperin has failed and continues

The injuries caused by Senator Holperin's simple failure to attend the proceedings of the

to fail to carry-out that swam duty by refusing to attend the proceedings of the WisconsinSenate. I

State Senate are, by any measure, exceptional and irreparable. Countless individuals and theirfamilies are now receiving O r are about to receive layoff notices, with all the incalculable agonysuch notices cause, solely because Senator Holperin has fled the district and refused toparticipate in debate in the chambers of the State Senate. In addition to the personal agonycaused by his failure to carry-out his sworn duty to represent the people of this Senate District,the irreparable loss of financial resources (as no damages can be recovered from him for hisfailure to carry-out his duty) is likely to exceed $100,000,000. (Section Il, C, infra) SenatorHolperin, by hi~ personal actions, has caused S en ate p ro ce ed in gs to fall short of theConstitutionally required quorum, and he has, as a direct result of his actions, prevented 1 1 voteon SS SB 11, the Budget Repair Bill. (Wi. Const. Art. IV, 8 (3/5 quorum required); Compl. ~14 (19 Senators inAttendance, 20 needed for a Quorum))2

This request for a Writ of Mandamus does not seek, in any way, to direct how SenatorHolperin may vote, but seeks merely an Order that he carry-out the purely ministerial act of,returning to the Senate Chambers inresponse to the Call of the Majority Leader, so that theSenate may address the matters before it. His attendance will cost him nothing, but his continued,

lOn Thursday, February lJ1hj Senator Holperin, and thirteen other Democrat members of theState Senate fled the chamber and are now hidlngoutside of the state "in a place that is hard forthem tofind" in order to postpone a vote. Cornpl. ~ 9. ,"The Wisconsin ASsembly debated and passed the Budget Repair Bill, January 2011 SpecialSessionAssembly Bill ri ("88 A .B 11"). All that remains is State Senate review and approval.

2

1 Z O / S l O " d L v 1 # 1 Z : 0 1 I i 0 Z / I O / S O 9 S 9 S S S 8 O Z 6 3 8 I . : : I . : : I 0M V l I > l S N I M j Z ~ > I : L U O J . : : I


3/26

"Mandamus is the appropriate remedy to compel public officers to perform duties arising

failure to attend will cost millions of dollars to the electors of the 12th Senate District and unt~ldand irreparable misery to those now receiving (or who will receive) otherwise unnecessary layoffnotices. It is hard to imagine a more clear instance for a Court Ordered Writ of Mandamus.r r . THE LEGAL STANDARD IS UNEQUIVOCAL INSUPPORTING THE GRANT OF AWRIT OF MANDAMUS

out of their offices an d d ue to be performed." State v. Resheske, 110 Wis. 2d 447, 449,329N.W.2d 275 (Ct. App, 1982); See dlso International Union, United Auto., Aircraft and Agr.Implement Workers v, Gooding) 251 Wis. 362,29 N.W.2d 730 (1947). The specific

;requirements for a Writ are straightforward:It is an abuse of discretion to refuse to issue the writ when the: noted prerequisites arepresent: (1) a clear legal right; (2) a positive and plain duty; e n substantial damages; and(4) no other adequate remedy at law.

Law Enforcement Standards Bd.v. Village of Lyndon Station, 101 Wis. 2d 472, 494,305 N.W. 2d89 (1981).&e also, Neu v . Voege, 96 Wis. 489, 71 N.W. 880 (1897); see also Burns v. City ofMadison, 92 W~B.2d 232,243,284 N.W.2d 631 (1979).n. IRE CIRCUMSTANCES OVERWHELMINGLY SUPPQRT THE ISSUANQE OF A WRlTOF MANDAMUS .

A. The 'Petition for Writ of Mandamus Is Made To Enforce A Clear Legal Right.

I Z O / 9 1 0 ' d L v l # 1 6 : 0 1 1 1 0 l / 1 0 / S O 9 S 9 8 9 8 8 O Z 6

The first requirement for a Writ of Mandamus is a determination of whether or not thePlaintiff/Petitioner has standing to seek the Writ. In that regard, Wisconsin is unequivocal inupholding a cltlzen' s right t~ bring this action. As the Wisconsin Supreme Court has noted,"[Wjhere the relief sought [by mandamus] is a matter of public right, the people at large are thereal party, and (my citizen is entitled to such writ of mandamus to enforce the performance ofsuch public duty." State ex ret . Burnham v, Cornwall, 97 Wis. 565,,567-68, 73 N:W. 63

3


4/26

(1897)(exnpbasis added). Here, Mr: Barthel is a citizen of the State and a citizen of'SenatorHalperin's Senate District; accordingly; Mr. Barthel has a clear legal right to seek the Writ

4

B. The 'Duty Io Be Enforced by the Writ Is Plain And Positive.The plain duty of an elected Senator is to attend proceedings of the State Senate by

appearing on the floor of the State Senate. That proposition would seem beyond ,the need forcitation. The essential character of our State an d Nation is a representative democracy in whichcitizens vote for their representatives and then honor those elected representative with theobligation that they attend, debate and vote on matters of public interest. That process is part ofour Constitution (Wi. Const. Art. IV) and OUr statutes (Wi. Stat. Chapters S~12).

1'0 the extent there is any doubt how important this obligation is, once elected, each StateSenator is required to take a public oath that repeats that obligation. The WisconsinConstitution, Article IV, Sec. 28 provides, "Members of the Ieglslatures., .shatl. ..take andsubscribe an oath ... faithfully to discharge the duties of their respective offices to the best of theirability."

Moreover, once that Oath was taken, Senator Holperin also bound himself to abide by therules of Senate itself and Wisconsin Senate Rule 16 provides that "Members of the senate maynot be absent from the daily session during the entire day without first obtaining a leave ofabsence'! ' Wis. Senate Rule 16.3

The Senate has been insession, and Senator Halperin was absent on the days when theBudget Repair Bill was to be addressed, and, as such, he has failed to carry-out his sworn

3 The use of the phrase "may not" (as here in the Rules of the State Senate) imposes a mandatoryduty on state senators to be present at an daily sessions of the Senate. See Brookhouse v. StateF arm M u,t. A u.to. Ins. C o., 130 Wis. ad 166, 170, 387 N.W.2d 82, 84 (Ct. App. 1.986) (holding that"[njegative words in a grant of power should never be construed as directory ... [wIhere anaffirmative direction is followed by a negative or limiting provision, itbecomes mandatory. ").

l l O I L I O ' d L v 1 # l l : O I 1 1 0 1 1 1 0 / 8 0 9 8 9 8 9 8 8 O Z 6


5/26

positive and plain 'duty t o serve the people of the 12th Senate District. He has failed to attend tothe business of that body by appearing in the Senate chamber in response to a Call of theMajority Leader. There is little doubt that Senator Holperin had and continues t o have amandatory, non-discretionary duty imposed on him as a public official to attend the dailysessions of the Senate, and he has willfully chosen not to carry-cut that duty, While SenatorHalperin enjoys virtually absolute discretion to vote how he pleases, or no t vote at all. he has nodiscretion to avoid his obligation to serve the citizens of his .Senate District by attending Senateproceedings."

C. Substantial Damage Follows From : ; l e n a l Q r Holperin's Continued Failure To Attendto his Duties.

-4 There are a number of academically interesting, but ml.:.elyirrelevant, concerns that might beraised by the Court's direction of a Writ to a legislator. In this connection, the person subject tothe Writ is-not the important question. As the most famous decision of al l time addressing aWrit of!v+andamus, Marbury 7).Madison, 1Cranch (US) 137,2. L. ed. 60 (1803) taught,determining if a mandamus is appropriate depends on the specific acts sought to be enforced,not the character of the office held bythe respondent. Id . (1t is not the offic e of the person towhom the writ is directed, but the nature of the thing to be done, that the propriety orimpropriety of issuing a mandamus is to be detennined.")See also, 34 Am Jur 862, Mandamus, 71.Mere ministerial duties of legislative officers, not involving the exercise of any discretion orof legislative functions, are frequently enforced by th e courts by means of a wrlt of mandamus,Stewart v. Wilson Printing Co., 2.10 Ala. 624, 99 So, 92.(192.4); Kavanaugh v. Chandler, 255 Ky.182,72 S.W.2d 1003 (:1.934), State ex rei. Benton v. Elder, 31 Neb. 169,47 N.W. 710,10LRA 796(1891); WOlfeu,McCaull, 76 Va. 876 (:1.882.);Capito v. Topping, 65 W. Va, 587, 64 S.E, 845', 22LRA(NS) 1089 (1909); and see Ex parte Pickett, 24 Ala. 9l (1854). Indeed, the public duty ofeach legislator is so critical to our system of representative democracy in Wisconsin that theWisconsin Constitution provides that the members cannot be prevented from attendance evenwhere they face cl'imtnal and civil proceedings. Wi. Const. Art. IV, 15. The rationale for thatprivilege was to "preserve the public's right to representation in the state legislature during thesession of the legislature." State u. Beno, 116Wis. ad 122,138-39,341 N' ,W . 2 . d 668 /676 (1984),"When a legislator cannot appear the people whom the legislator represents lose their voice indebate and vote." Id. citing Of Doty v. Strong, 1Pin. 84 (1840) (interpreting article I, section 6,U.S. Constitution); Anderson. v. Roundtree/ :J . Pin. 115 (1841) (interpreting common law andStatutes ofthe Territory of Wisconsin, 1839, at 157). Immunity is appropriate "because amember has superior duties to perform in another place." .Id. "When a senator is withdrawn bysummons, his State loses half its voice indebate: and vote, as it does in his voluntary' absence.The enormous dispal'ity of the evil admits of no comparison." Id, So too, this action is intendedto preserve the public's right to representation, to maintain the people's vote, and to avoid theenormous disparity of the evil of a public official refusing to represent the people who electedhim. '

5

I Z O / 8 1 0 d Lv l# Z Z : O I I I 0 Z / 1 0 / S O 9 8 9 8 9 8 8 O Z 6 : J 8 I : l : l 0 M V l I ~ S N I M 3 Z ( j > l : U l O J : l


6/26

Failure of the Legislature to complete action on SS AB 11 by Wednesday, March 2 willpreclude the major provision proposed to balance the state Budget for. the current biennium-adebt refinance=and as a consequence will cost the citizens of the State more than $100million. (http;//www: politifact.comlwisconsin/statexnents/20 11/feb/18/rachel-maddow/r~chel-maddow-says-wisconsin-track-have-budget-sur/). More importantly, the failure to address thesematters by attendance on the floor 0 . the Senate has caused the mailing of notices of layoffthroughout the State and will cause additional layoff notices (with all the attendant irreparableagony to those receiving notices and agony to their families) and that failure will ultimatelycause actual layoffs of up to 1 ,500 state workers .(http://www.jsonline.com/news/statepolitics(116919338.html).

Additionally, the State operates under a state constitutional requirement that the budgetbe balanced (Article Vlfl, Section 5) and SS AB 11 addresses that requirement. The Writ will,accordingly, assure compliance with that Constitutional obligation. Failing legislative action, theExecutive Branch must act to balance the budget, and layoff's, non-payment of bills and loss of

additional revet;ue through refinancing inevitably follow. According to the non-partisanLegislative Fis~al Bureau (http://legis.wisconsin.govllfb/Miso/2011_02_22WILeg.pdf), theprocess of debt refinancing must begin with passage of SS AB 11 by Wednesday, March 2. Noother means has been proposed to allow the state to meet the financial requirements of the $153million shortfall in Medicaid in the fiscal year that ends June 30.(htlp:/lwalker.wi.gov/docview.asp?docid""2120.5&looid=177).

Additionally, SS AB 11 depends upon $30 million in increased payments by stateemployees for retirement and healthcare, If this provision or another of equal significance is notadopted, the alternative open to the state is the layoff of approximately 1,500 current employees .

6

I l O / B I O ' d L v l # Z l : O I 1 1 0 Z / I O / 8 0 9 8 S 8 S 8 8 O l B 3 8 1 : 1 . : 1 0 M ~ l 1 > l S N I M 3 Z C l > l : U l o . , J . : l


7/26

(http://www.po}itifact.comlwisconsin/statements/2011ifeb/i8/rachel.mad~ow/rachel-maddow~says-w~sconsin-track-have-budget-surl). Again, no other option has been presented On the floorof the Senate in a manner that would prevent these layoffs, because Senator Holperin has refusedto attend the proceedings or respond to the Call of the Majority Leader. It is expected statelayoff notices will be issued this week if this Cou rt f ai ls t? act on an emergency basis.

The Wisconsin Assembly has acted on SS AB 11 and the State Senate is nOW the soleremaining body that must address the matter. A Writ of Mandamus directing Senator Holperinto return to the floor of the Senate, and to otherwise respond to the Call of the Majority Leader,is all that is req~ired to avoid these substantlal harms.

D. There Is NQ Adequate Remedy Available Except a Wri t of Mandamus by this Court.In the United States and in Wisconsin, there is no alternative to democracy. Only the

Wisconsin legislature can vote to enact legislation. Given that the Wisconsin Constitutionrequites a quorum to vote on fiscal bills, this Court is uniquely able, by Issuance of a Writ ofMandamus directing Senator Hclperin to honor his oath, to solve the problem at hand. If Senator

Holperin should choose to defy the judicial finding and Order of a Writ of Mandamus, then thisCourt's powers of contempt for failure to honor that Writ or to otherwise direct its enforcement,as taught so long ago inMarbury, will presumably suffice to achieve compliance.III. CONCLUSION AND REQUEST.

It is hard to overstate the importance of an immediate issuance of a Writ of Mandamusdirecting Senator James Holperin to return to the floor of the State Senate. Whatever his motivesmay have been at the outset that caused him to flee the 'Capitol, they are no longer relevant whenhis failure to perform his duties as a Senator have and continue to cause such irreparable injuryto thousands of citizens and irreparable and ongoing financial injury to every citizen of the State.

I Z O / O Z O ' d L ~ l # Z Z : O I l i O Z / l O / S O 9 S 9 S 9 S 8 O Z 6 3 8 I j j O M V l I ~ S N I M 3 Z ~ ~ : r u O J j

7


8/26

Court should so direct by a Writ of Mandamus.

Dated: February 28, 2011

Law Office of Aaron M.Krzewlnski S,C.Aaron M. Krzewinski, SBN [email protected] Main StPO Box 44Oconto, WI 54153920-835-3535 telephone(920) 835-3536 faxHansen Riederer Dickinson Crueger LLCTimothy Hansen, SBN 1044430tim@hrdc-law'.comMonica Riederer, SBN [email protected] N. Milwaukee St., Suite. 200Milwaukee, WI 53202-414~273-8473 telephone414-273-8476 fax

r 2 0 / l 2 0 d L v l # 2 2 : 0 1 I I O Z / l O / 8 0

8

9 8 9 8 9 8 8 0 2 8

Tr A s Law Office LLCJames R. Troupis, SBN [email protected] Elmwood Ave., Suite 102Middleton, WI 53562608-807-4096 telephone608-836-1240 fax

Richard M. EsenbergSBN 10056228900 North Arbon DriveMilwaukee, WI 53222

3 8 I : l : lO M V l I > IS N I M 3 Z t l> l: U IO J : l
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


9/26

....... '. BTATE OF WISCONSIN "l"'''' , "CIRCUIT COURT OCONTO ..COUN.T.Y.--"._ _._ __ _

KBV1N BARTHEL17485 County Road FLakewood, Wi. 54138,

c~I":". ~ ;, ... .. : , ::,:'( ' . ,

' , .

C ase N o.: I I CV/DOPlaintiff, Class. Code 30952

v .JAMES HaLPERIN3575 Manheim RoadConover, W154519, \.. "~: t : . \ f:" ':'"' ~"i, ... \ \) \ Lt_ . f

Defendant. ~",,:~:.;,.."" ." ,'''''0'' "

NOTICE OF MOTION AND MOTION FOR EMERGENCY PEREMPTORY wnrr OF'. MANDAMUS:PLEASE TAKE NOTICE that the plaintiff, Kevin Barthel, by his undersigned attorneys,

hereby moves this Court for an emergency peremptory writ of mandamus pursuant to WisconsinStatutes, including Wis. Stat. Chapter 783, et seq., Wis. Stat. 781.01, Wis. Stat. 781.02, Wis.Stat. 801.15(4) and Wis. Stat. 801.02(5), compelling the defendant, James Holperin, to

. .

perform his mandatory, nondiscretionary and ministerial duty as a Wisconsin State Senator byimmediately returning to Madison, Wisconsin and attending the' daily sessions of the Senate andresponding to the Call of the Majority Leader, in accordance with his inherent public duty and. .obligation as the elected Senator of the 12thWisconsin State Senate District, his Obligations andduties provided in the Wisconsin Constitution, including, but not limited to those provided byArticle IV, Section 2 8 and his duties and obligations as a member of the Wisconsin Senatepursuant to the rules of that bod:y. Senator Holperin has willfully chosen to avoid his public dutyto attend the sessions of the Wisconsin State Senate or to otherwise respond to the Call of theMajority Leader.'

1 Z 0 / 1 1 0 d L v l # 0 2 : 0 1 l i O Z / l O / 8 0 9 8 9 8 9 S 8 0 2 6 j:J U : :l O M V ' l I > lS NI M jZ ~ > I : U J O j: : l


10/26

Insuppon; of said Motion the Plaintiff/Petitioner hereby incorporates his Verified '"Complaint, his Brief in Support ofP~tition for Emergency Pere!npto'ry Writ of Man~am\~s filedherewith, those matters of public record to which the Court may take judicial notice and such

1.) Immediately set this matter for a hearing, on an emergency, ex parte, basis;

other and further items as may become a part of the proceedings.WHEREFORE, plaintiff/petitioner Kevin Barthel, moves this Court to;

2.) Issue a Peremptory Writ of Mandamus compelling the Defendant/Respondent, JamesHalperin, to imm~iately return to Madison, Wisconsin for the purpose of attending all dailysessions Of the Wisconsin State Senate, responding to the Call of the Majority Leader andaddressing on the' floor of the Senate chamber the Budget Repair Bill;

. .3.) Set a hearing as soon as practicable for the Defendant/Respondent to address the mattersof this Writ, if'he so chooses, and

4.) To grant such other and further relief as this Court deems just and reasonable.

2

l Z O / Z I O d Lv l# l 2 : 0 1 1 1 0 2 / 1 0 / 8 0 9 8 9 8 9 8 8 0 2 6 3 8 1 . : : 1 . : : 1 0M V l I > l S N I M 3 Z C J > I : U lo . . l . : : l


11/26

Dated: February 28~ 2011

Hansen Riederer Dickinson Crueger LLCTimothy Hansen, SBN [email protected] Riederer, SBN [email protected] .316 N. Milwaukee St., Suite. 209Milwaukee, WI 53202414-273-8473 telephone414-273-8476 fax

Richard M. EsenbergSBN 10056228900 North Arbon DriveMilwaukee, WI 53222

Law Office of Aaron M. Krzewinski S,C.Aaron M. Krzewinski, SBN [email protected] Ma .in . S tPOBox 44Oconto, WI 54153920-835-3535 telephone(920) 835-3536 fax

:r-:/"'" .Tr pis Law Office LLCJames R.Troupis, SBN [email protected] Elmwood Ave . Suite 102Middleton, WI 53562608-807-4096 telephone608-836-1240 fax

3

l Z O / 8 1 0 ' d L v l # 1 Z : 0 1 1 1 0 Z 1 1 0 / 8 0 9 8 9 8 9 8 8 O Z 8 3 8 I j _ jO M V l I > lS ~ lI M 3 Z t l > l : 1 1 1 0 J_ j
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


12/26

STATE OF WISCONSIN CIRCUrf COURT OCONTO 'COUNTY

KEV IN BAR T IIE L17485 County Road J . 1 S N I M 3 Z ~ > 1 : U l o _ j : l


13/26

This request for a Writ of MandaxnuB does not seek, in any way, to direct how Senator

, other public ,officials took an ~ath "[fjaithfully to discharge the duties of their respective officesto the best of their ability." Wi. Const. Art. VIII, Z8 . Senator Holperin has failed and continuesto fail to carry-out that sworn duty by refusing to attend the proceedings of the WisconsinSenate.'

The injuries caused by Senator Holperln's simple failure to attend the proceedings of theState Senate are, by any measure, exceptional and irreparable. Countless individuals and theirfamilies are now receiving or are about to receive layoff notices, with all the incalculable agony

such notices cause, solely because Senator Holperin has fled the district and refused toparticipate in debate il l the chambers of the State Senate. In addition to the personal agonycaused by his failure to carry-out his sworn duty to represent the people of this Senate District,the irreparable loss of financial resources (as no damages can be recovered from him for hisfailure to carry-out his duty) is likely to exceed $100,000,000. (Section II, C, infra) SenatorHolperin, by hi~ personal actions, has caused Senate proceedings to fall short of theConstitutionally required quorum, and he has, as a direct result of his actions, prevented a voteon SS SB 11, the Budget Repair Bill. (Wi. Const. Art. IV, 8 (3/5 quorum required); Compl. 'i f14 (19 Senators in Attendance. 20 needed for a Quorum)2

Holperin may vote, but seeks merely au Order that he carry-out the purely ministerial act of,returning to the Senate Chambers in response to the Call of the Majority Leader ,so that theSenate may address the matters before it. His attendance will cost him nothing, but his continued '

IOn Thursday, February l 'fh, Senator Holperin, and thirteen other Democrat members oftheState Senate fled the chamber and are now hidingoutside of the state "in a place that is hard forthem tofind" in order to postpone a vote. Compl, 'U 9. ,~The Wisconsin.ASsembly debated and passed the Budget Repair Bill, January 2011 SpecialSesslonAssembly Bill n ("SSAB 11"). All that remains is State Senate review and approval.

2

1 Z 0 / 9 1 0 " d L v 1 # 1 Z : 0 1 1 1 0 Z I 1 0 / 8 0 9 8 9 8 9 8 8 O Z 8 3 0 I J J O M V l I ~ S N I M 3 Z d ~ : w O J J


14/26

failure to attend will cost millions of dollars to the electors of the 12th Senate District and untoldand irreparable misery to those now receiving (or who will receive) otherwise unnecessary layoffnotices. It is hard to imagine a more clear instance for a Court Ordered Writ of Mandamus.II. THE LEGAL STANRARO IS UNEQUIVOCAL IN SUPPORTING tEE GRANT OF AWlUT Of MANDAMUS

"Mandamus is the appropriate remedy to compel public officers to perform duties arisingout of their o ffic es a nd d ue to be performed." State v. Resheske, 110 Wis. 2d 447, 449, 329N.W.2d 215 (Ct. App, 1982)j See also International Union, United Auto" Aircraft and Agr,Implement Workers Y . Gooding, 251 Wis. 362,29 N.W.2d 730 (1947). The specific

Irequirements for a Writ are straightforward:It is an abuse of discretion to refuse to issue the writ when the noted prerequisites arepresent: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and(4) no other adequate remedy at law.

Law Enforcement Standards Bd,v. Village of Lyndon Station, 101 Wis. 2d 472, 494, 305 N.W. 2d89 (1981).See also, Neu v. Voege, 96 Wis. 489, 71 N.W. 880 (1897); see also Burns v. City ofMadison, 92 W~s. 2d 232, 243,284 N.W.2d 631 (1979).II. IHE CIRCUMSTANCES OVERWHELMINGLY SUPPQRT THE ISSUANCE OF A WRITOF MANDAMUS.:.

A. JJte 'Petition fQ r Wl'it of Mandamus Is Made To Enforce A Clear Legal Right.The first requirement for a Writ of Mandamus is a determination of whether or not the

Plaintiff/Petitioner has standing to seek the Writ. In that regard, Wisconsin is unequivocal inupholding a citizen's right to bring this action. As the Wisconsin Supreme Court has noted,"[W]here the relief sought [by mandamus] is a matter of public right, the people at large are thereal party, and (my citizen is entitled to such writ a/mandamus to enforce the performance ofsuch public duty." State ex ret . Burnham v, Cornwall, 97 Wis. 565,,56768,73 N;W. 63

3

1 Z O / 9 1 0 ' d L v 1 # 1 Z : 0 1 1 1 0 Z / I O / S O 9 8 9 8 9 S 8 O Z 6


15/26

(1897)( empbasis added). Here, M r : Barthel is a citizen of the State and a cittzen of SenatorHalperin's Senate District; accordingly; Mr. Barthel has a clear legal right to seek the Writ.

B. The Duty IQ Be Enforced by the Writ Is Pll!in And Positive.The plain duty of an elected Senator is to attend proceedings of the Sta.te Senate by

appearing on the floor of the State Senate. 111atproposition would seem beyond the need forcitation. The essential character of our State and Nation is a representative democracy in whichcitizens vote for their representatives and then honor those elected representative with the

obligation that they attend, debate and vote on matters of public interest. That process is part ofour Constitutio~ (Wi. Const, Art. IV) and our statutes (Wi. Stat. Chapters 5~12).

To the extent there is any doubt how important this obligation is, once elected, each StateSenator is required to take a public oath that repeats that obligation. The WisconsinConstitution, Artiole lV, Sec. 28 provides, "Members of the legislatures. :.shall. ..take andsubscribe an oath ... faithfully to discharge the duties of their respective offices to the best of theirability."

Moreover, once that Oath was taken, Senator Holperin also bound himself to abide by therules of Senate itself and Wisconsin Senate Rule 16 provides that "Members of the senate maynot be absent from the daily session during the entire day without first obtaining a leave ofabsence." Wis. Senate Rule 16.3

The Senate has been insession, and Senator Holperin was absent on the days when theBudget Repair Bill was to be addressed, and. as SUCh, he has failed to carry-out his sworn

3 The use of the phrase "may not" (as here in the Rules of the State Senate) imposes a mandatoryduty on state senators to be present at all daily sessions of the Senate, See Brookhouse v. StateFarm MuJ. Auto. Ins. Co., 130 Wis. ad 166,170, :387 N.W.2d 8~, 84 (Ct. App. 1986)(holding that"[njegative words in a grant of power should never be construed as directory ... [wjhere anaffirmative direction is followed by a negative or limiting provision, itbecomes mandatory. It).4

I Z O I L 1 0 d L v 1 # 1Z:01 1 1 0 Z / I O / 8 0 9 8 9 8 9 8 8 O Z 6


16/26

positive and plain duty t o serve the people of the lih Senate District. He has failed to attend tothe business of that body by appearing in the Senate chamber in response to a Call of theMajority Lead~r. There is little doubt that Senator Holperin had and continues t o have amandatory, non-discretionary duty imposed on him as a public official to attend the dailysessions of the Senate, and he has willfully chosen not to carry-out that duty. While SenatorHolperin enjoys virtually absolute discretion to vote how he pleases, or 110t vote at all, he has nodiscretion to avoid his obligation to serve the citizens of his ,Senate District by attending Senate

l l O / B I O O d Lv l# l l : O I 1 1 0 Z / [ 0 / S O 9 S S S S S 8 O Z B 3 8 I : l : l O M ~ l I > l S N I M 3 Z C l > l : U 1 0 J : l

proceedings."C. Substantial Damage Follows From Sen!:UQrHolp~rin's Continued Failure To Attend

to his Dutie.

4 There are a number of academically interesting, but likely irrelevant, concerns that might beraised by the Court's direction of a Writ to a legislator. In this connection, the person subject tothe Writ is'not the important question . .M the most famous decision of all time addressing aWrit of Mandamus, Marbury v. Mc.tdison,1Cranch (US) 137, :2 L. ed. 60 (1803) taught,determining if a mandamus is appropriate depends on the specific acts sought to be enforced,not the character of the office held by the respondent. Id. C'lt is not the office of the person towhom the writ is directed, but the nature of the thing to be done, that the propriety Orimpropriety of issuing a mandamus is to be detennlned.")See also, 34 Am Jur 862, Mandamus, 71.Mere ministerial duties oflegislative officers, not involving the exercise of any discretion orof legislative functions, are frequently enforced by the courts by means of amit of mandamus.Stewart v. Wilson Printing Co. , 210 Ala. 624, 99 So. 92 (1924); Kauanauql: 1,). Chandler, 255 Ky.182,72 S.W.2d 1003 (1934), State ex rel. Benton l).Elder, 31 Neb. 169,47 N.W. 710, 10 LRA 796(1891); Wolfe u, McCaull, 76 va. 876 (l8S:?); Capito u, Topping, 65 W. Va, 587, 64 S.E. 845, 22LRA(NS) 1089 (199); and see Ex porte Pickett; 24 Ala. 9:1.(1854). Indeed, the public duty ofeach legislator is so critical to our system of representative democracy in Wisconsin that theWisconsin Constitution provides that the members cannot be prevented from attendance evenwhere they face criminal and civil proceedings. Wi. Const, Art. IV, 15. The rationale for thatprivilege was to "preserve the public's right to representation in the state legislature during thesession o r the legislature." State 1). Beno, 116Wis. zd 122, 138-39, 341 N.W.2d 668, 676 (1984)."When a legislator cannot appear the people whom the legislator represents lose their voice indebate and vote." ta . citing a. Doty v. StrOTl.g; 1Pin. 84 (1840) (interpreting article I, section 6,U.S. Constitution); Anderson v. Roundtree, l Pin. 115 (1841) (interpreting common law andStatutes of the Territory of Wise on sin, 1839, at 157). Immunlty is appropriate "because amember has superior duties to perform in another place." .Id. l


17/26

, ,Failure of the Legislature to complete action on SS AB 11 by Wednesday, March 2 will

6

preclude the major provision proposed to balance the state Budget for-the current biennium-adebt refinance-Nand as a consequence will cost the citizens of the State more than $100million. (http: //www.pD~itifact .com/wisconsin! statementsl20 11ffeb/ 18/rache1 -maddo w Ir~chel~maddow-says-wisconsin-track-have-budget-sur/). More importantly} the failure to address thesematters by attendance on the floor o,fthe Senate has caused the mailing of notices of layoffthroughout the State and will cause additional layoff notices (with all the attendant irreparable

agony to those receiving notices and agony to their families) and that failure will ultimatelycause actualla;:offs of up to 1,500 state workers.(http://www.jsonline.cownews!statepolitics(11691933 8 .html) ,

Additionally, the State operates under a state constitutional requirement that the budgetbe balanced (Article Vlfl, Section 5) and SS AB 11 addresses that requirement. The Writ will,accordingly, assure compliance with that Constitutional obligation. failing legislative action, theExecutive Branch :must act to balance the budget, and layoffs, non-payment of bills and loss ofadditional reve~ue through refinancing inevitably follow. According to the non-partisanLegislative Fis~al Bureau (http://legis.wisconsin.gov/lfb/Misc/2011_02~22WILeg.pdf), theprocess of debt refinancing must begin with passage ofSS AB 11 by Wednesday, March 2. Noother means has been proposed to allow the state to meet the financial requirements of the $153million shortfall in Medicaid inthe ffscal year that ends June 30.(http://walker .wi.gov/docview .asp?docid-21205&locid"",177).

Additionally, SS AB 11 depends upon $30 million in increased payments by stateemployees for retirement and healthcare. If this provision or another of equal significance is notadopted, the alternative open to the state is the layoff of approximately 1,500 current employees '

1 6 0 / S l 0 d L V l # 2 l : 0 l I l O l / l 0 / 8 0 9 8 9 8 9 8 8 O l 8


18/26

(http':/ /www.politifact.com/wisconsin/ statements/20 11/feb/ i8/rachel -maddow /raohel-maddow-says.wisoonsin-track-have.budget~surl). Again, no other option has been presented On the floorof the Senate in a manner that would prevent these layoffs, because Senator Holperin has refused

7

to attend the proceedings or respond to the Call of the Majority Leader. It is expected statelayoff notices will be issued this week if this Court fails t~ act on an emergency basis.

The Wisconsin Assembly has acted on SS AB 11 and the State Senate is now the soleremaining body that must address the matter. A Writ of Mandamus directing Senator Holperinto return to the floor of the Senate, and to otherwise respond to the Call of the Majority Leader)is all that is req~ired to avoid these substantial harms,

D. There Is No Adequate Remed): Available Ex-cent a Writ of Mandamus " b Y this COurt,In the United States and in Wisconsin, there is no alternative to democracy. Only the

Wisconsin legislature can vote to enact legislation. Given that the Wisconsin Constitutionrequires a quorum to vote on fiscal bills, this Court is uniquely able, by issuance of a Writ ofMandamus directing Senator Holperin to honor his oath, to solve the problem at hand. If SenatorHolperin should choose to defy the judicial finding and Order of a Writ of Mandamus, then thisCourt'S powers of contempt for failure to honor that Writ or to otherwise direct its enforcement,as taught so long ago in Marbury, will presumably suffice to achieve compliance.III. CONCLUSION AND REQUEST.

It is hard to overstate the importance of an immediate issuance of a Writ of Mandamusdirecting Senator James Holperin to return to the floor of the State Senate. Whatever his rnotivesmay have been at the outset that caused him to flee the 'Capitol, they are no longer relevant whenhis failure to perform his duties as a Senator have and continue to cause such irreparable injuryto thousands of citizens and irreparable and ongoing financial injury to every citizen of the State,

I Z O I O Z O ' d L v l # 66:01 I i 0 Z / l O / E O 9 8 9 8 9 8 8 O Z 8 : 3 8 I : l : lO M i ll I ~ S N I M 3 Z t l> l:uo A :l
http://www.politifact.com/wisconsin/http://www.politifact.com/wisconsin/


19/26

The point has been made. it is time for Senator Holperin to return to his duties, and thisB~~ ]Court should so direct by a Writ of Mandamus.Dated: February 28, 2011Law Office of Aaron M. Krzewinski S.C.Aaron M. Krzewinski, SBN [email protected] Main StPO Box'44Oconto, WI 54153920-835-3535 telephone(920) 83S


20/26

STATE O:VWISCONSIN CIRCUIT COuRT OCONTO COUNTY

KEVIN BARTHEL17485 CountyRoadFLakewood, Wi. 54138,Plaintiff,

Case No.: /1 (!_,U IrlClass. Code: 30952

v .JAMES HOLPERIN3575 Monheim RoadConover, WI 54519~

.'.",

Defendant.

JURISDICTION AND VENUE

VERIFIED COMPl.AINT AND PETITION FOR WRIT OF MANDAMUS

The plaintiff, Kevin Barthel, alleges and states for his Verified Complaint and Petition forWrit of Mandan:I1~~as follows:

1. This is a n a ct io n seeking a Writ of Mandamus to compel the Defendant, James Holperin,to complete 'his sworn duty as the Senator from tile 12 th Wisconsin S~nate District to attendsessions of the Wisconsin State Senate,

2. The Plaintiff/Petitioner, Kevin Barthel, is an individual who resides at 17485 CountyRoad F, Lakewood, Wisconsin 54138, , Oconto COUl1ty. He is a resident and voter in the lihSenate District of the State of Wisconsin ..

3. The Defendant/Respondent, James Holperin, is an individual who resides at 3575Monheim Road, Conover, WI 54519. Mr. Holperin was elected to the position of State Senatorfor the 12th Senate District.

4. This court has jurisdiction under Wisconsin Statute Chapter 783, et seq.

1 6 0 / v O O ' d L v 1 # 6 1 : 0 1 I I O G / I O / S O 9 8 9 S 9 S 8 0 6 6


21/26

,5. This particular Circuit Court for Oconto County affords the proper venue for this actionin that both the plaintiff and the defendant reside in this district.

6. This action seeks to compel the defendant immediately to return to Madison Wisconsin

2

and attend the daily sessions of the Wisconsin State Senate in accordance with his mandatory,nondiscretionary and ministerial duty of being in attendance at each daily session of the Senateand to otherwise respond' to the Call of the Majority Leader.

7. Mr. Barthel has standing to bring this action because "where the relief sought [bymandamus] is a matter of public right, the people at large are the real party, and any citizen isentitled to a writ o f mandamus to enforce the performance of such public duty." State ex rel.Burnham v, Cornwall, 97 Wis. 565, 56768,73 N.W. 63 (1897)(emphasis added).

BACKGROUND AND FACTS8. O n February 17, 2011, the Wisconsin State Senate was called into session and the Budget

Repair Bill, January 2011 Special Session Senate Bill Ll , ("S8 SB 11") was introduced.9. Senator Holperin, and thirteen other Wisconsin State Senators, walked out of the Senate

, ,

Chambers and refused to attend the floor session or respond to the Call of the Majority Leader,instead, on information and belief, they fled the State of Wisconsin to Illinois, where they haveapparently been itaying at least during Senate sessions sinc~ that date.

10. Art. N, Sec. 28 of the Wisconsin Constitution provides that "[mjembers ofthelegislatures ... shall. .. take and subscribe an oath ... faithfully to discharge the duties of theirrespective offices to the best of their ability." Among those duties is attendance of duly electedState Senators at sessions of the Wisconsin State Senate., 11. In addition to the Constitutional obligation to perform the duties of office, and inherent, 'duties applicable to any elected official to carry-out their duties in a representative democracy,

1 6 0 / 9 0 0 ' d L v l # 8 1 : 0 1 1 1 0 Z / I 0 / 8 0 9 8 9 8 9 8 8 0 6 8 3 0 I : :J : : J OM 'V l I > I S N I M 3 Z ( j~ : U10J.:J


22/26

Wisconsin Senate Ru1e 16 also requires attendance of State Senators on days when the Senate isin session.

12: The Senate was in session on February 17, 18, 19, ZZ, 24, and 25.13. Senator Holperin failed to attend any of those sessions, and has publicly indicated that he

does not intend to attend any sessions at which the Budget Repair Bill may be considered.14. Article Vlll, Section 8 of the Wisconsin Constitution requires 3/ 5 quorum for a vote on

all fiscal issues) which means that there must be 20 senators present to constitute a quorum and

convene a vote on the BUdget Repair Bill.15. On information and belief, Senator Holperin's walkout was conceived and executed for

the specific purpose of denying the Senate a quorum sufficient to vote on the Budget Repair Bill.16. As a direct result Of Senator Holperin's refusal to perform his mandatory, non-

discretionary duty of attending the daily sessions of the State Senate and responding the Call ofthe Maj ority Leader, the Senate has been unable to meet the quorum requirement and cannotconduct business or vote on critical legislation.

17. On information and belief, tho failure of the Legislature to complete action on Janua.ry2011 Special Session Assembly Bill 11 ("SS AB II") byWednesday; March 2~2011, willprevent major provisions of that Bill from becoming effective, and those provisions are essentialto balancing the state Budget for the current biennium.

18. On information and belief, the failure to address the current year budget deficit of at least$137 million willresult in the layoff of an estimated 1,500 state workers and the failure of thestate to pay Medicaid and other bills.

19. Additionally, the state operates under a state constitutional requirement that the budget bebalanced (Arii'cle'VIII, Section 5). SS AB 11 is the only means so far proposed as legislation orby amendment on the floor of the State Senate to meet that State constitutional requirement,

3

I Z 0 / 9 0 0 d L v l # 0 2 : 0 1 I l O Z / I O / 8 0 9 8 9 8 9 8 8 O Z 8 3 8 1 . : 1 . : 1 0M V ' l I > l S N I M 3 Z C J > l : U l O J . : : l


23/26

4

20. On information and belief, the major provision of the Bill that allows the financialobligations of the Strite to be met is' the refinancing of a portion of state general obligation debt.The process of debt refinancing must begin with passage of SS SB 11 by Wednesday, March 2.No other means has been proposed as legislation or by amendment on the floor of the StateSenate to allow the State to meet the financial requirements of the $153 million shortfall inMedicaid in the fiscal year that ends June 30.

21. On information and belief, SS AB 11 depends upon $30 million in increased payments bystate employees for retirement and healthcare, Ifthis provision or another of eq~al significance isnot adopted, the alternative the State Executive Branch intends to adopt is the layoff ofapproximately 1,500 current employees.

22. The actions of Senator Holperin described here have been, and continue to be,particularly harmful to the citizens of the 12th Senate District. This Senate District depends, ingreat measure> on tourism. By fleeing the State, ruther than address forthrightly, on the floor ofthe Senate, the important budget issues of our State, Senator Halperin has and continues to create. . .a negative impression on those who might otherwise travel to this area. Particularly in thesedifficult economic times, Senator Holperin's actions will have a seriously negative impact on thecitizens of the 12th

23. Senator Halperin has not provided any option to the proposed legislation pursuant to thenormal legislative process on the floor of the State Senate, and cannot do so unless he attendsthose sessions and responds to the Call of the Majority Leader to address the Bill. Oninformation and belief, no other option has been brought before the State Senate in the form oflegislation or amendment to legislation on the floor of the State Senate to prevent these layoffs. .and if SS AB does not pass, it is expected layoff notices will be issued within the coming week.

I Z O I L O O d L v l # O Z : O l 1 1 0 Z I I 0 / 8 0 9 8 9 8 9 8 8 O Z B : J 8 I . : : l . : : l 0M V l I > l S N I M : : J Z ~ > I : U l O . . 1 . : : l


24/26

24. There is no adequate remedy a:t law to prevent this substantial harm that will befall the

5 '

State of Wisconsin Mid its citizens if this Writ of Mandamus is not issued.25. ~r. Barthel has brought this action to compel Senator Holperin t o . comply with. the

inherent obligations of'his elective office, the Wisconsin State Constitution and rules of the StateSenate, and t o . otherwise fulfill his duty as an elected State Senator to his constituents.

COUNT!FETITION FOR PEREMPTORYWRIT O F M AN DAMUS26, Plaintiff/Petitioner repeats and realleges the allegations in Paragraphs 1 through 25

above as if incorporated in their entirety herein.27. Plaintiff/Petitioner and Senator Holperin's other constituents have a . clear legal right t o .

have their elected Senator comply with his inherent duties as an elected Senator, the mandates ofthe Wisconsin Constitution and the Rules of the Wisconsin State Senate.

28. Senator Halperin's public duty is plain and positive: he must attend the daily sessions ofthe State Senate and respond to the Call of the Majority Leader to address the Budget Repair, ,

Bill.29. Substanti~l damage will follow if Senator Holperin is not compelled to fulfill his plain

and positive dutyto attend the daily sessions of the Senate and respond to the Call of theMajority Leader t o . address the Budget Repair Bill.

30. There is no adequate remedy at law to prevent this substantial harm, as there is nosubstitute for representative democracy in this country or in this state.

31, There are no special reasons that would make Mr. Barthel resort to this remedy ofissuing a peremptory writ of mandamus inequitable.

WHEREFORE , plaintiff/petitioner Kevin Barthel> respectfully requests that:

I Z O / 8 0 0 ' d L v 1 # 02:01 1 1 0 Z I I 0 / 8 0 9 8S8 S8 8 O Z 6 3 8 I j j O M V l I ~ S N I M j Z ~ ~ : w O J j


25/26

A.)This Court issue a Peremptory Writ of Mandamus compell~g theDefendant/Respondent, James Holperin, to immediately return to Madison, Wisconsin, attend alldaily sessions of'the Wisconsin State Senate and respond to the Call of the Majority Leader;

E.) That inthe event James Holperin refuses or neglects to performthat prescribed dutythat he be found guilty ofa Class H felony pursuant to Wis.Stat, 783.07j

C.) That the Court award the Plaintiff/Petitioner appropriate costs and attorneys fees, andD.) That the Court grant such other and further relief that this Court deems just andappropriate, including such orders as may be required to insure compliance with thisCourt's Writ.

l l O / 6 0 0 " d L v 1 # O l : O l 1 1 0 l / I O / S O 9 8 9 8 9 8 8 O l 8


26/26

VERlF ICA T IONState of WisconsinCounty of Oconto

I, Kevin Barthel, verify that the factual allegations set forth in the foregoing VerifiedComplaint and Petition for Writ of Mandamus are true and correct to the best of my knowledge,except as to those matters therein stated to be all~Jed upon information and belief and as tothose matters, I believe them to be true: Dated thy 28th day of February, 2011.

.' ~ ~ V tA /J ~I Kevin Barthel

Law Office of Aaron M. Krzewfnskl S.c.Aaron M. Krzewinski, SBN [email protected] Main StPO Box 44Oconto, WI 54153920M8S5-3535 telephone(920) 8353536 faxHansen Riederer Dickinson Crueger LLCTimothy Hansen, SBN [email protected] Riederer , SBN [email protected] 16 N .Milwaukee S t., S uite . 2 00Milwaukee, WI 53202414-2738473 telephone414-273-8476 fax

Troupls Law Office LLCJames R. Troupis, SBN [email protected] Elmwood Ave., Suite 102Middleton, WI 53562608-807~4096 telephone608-836-1240 fa x

llichard M. EsenbcrgSEN 10056228900 North Arbon DriveMilwaukee, WI 53222

7
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

holperin complaint

Documents