1Z0/rl0"d dplé 1 STATE OF WISCONSIN CIRCUITCOURT : — OCONTOCOUNTY KEVIN BARTHEL 17485 County Road F Lakewood, Wi. $4138, CasoNo: // CV /00 Plaintiff, Case Code 30952: JAMES HOLPERIN pom ott 3575 Menheim Road Conover, WI 54519, cc Defendant. BRIEF IN SUPPORT OF MOTION FOR EMERGENCY PEREMPTORY WRIT OF MANDAMUS James Holperin has caused and continues to cause enormous and itroparable harm to the people of Oconto County, the electors of the 12" Senate District and the People of the State of ‘Wisconsin by his failure to carry-out his sworn duty as the elected Senator of the 12" Senate District, Our Supreme Court has explicitly noted, “[}t is the settled rule of this state...that,..any citizen is ontitled to a wrt of mandamus to enforce the performance of such public duty.” Stare ex rel. Burnham v, Comwall, 97 Wis, 565, 567-68, 73 N.W. 63 (1897). This notion seeks, on an ‘emergency basis, a Writ of Mandamus diecting Senator Holperin to immediately appear at the Senate Chambers and thereafter responé to the Call of the Majority Leader in order that a quoruin may be achioved to consider budget repair legislation, 1, BACKGROUND ‘Kevin Barthel is an Oconto County resident and he is a voter in the 12" Senate District, Tames Holperin js the elected Senator of Wisconsin's 12 Senate Distriot and, as such, he, like a 1102/10/80 SESE 968 026 301420 MW DISNTHAZE O44other public officials took an oath “[flaithfully to discharge the duties of their respective offices to the best of their ability.” Wi, Const. Art. VIII, §28, Senator Holpotin has failed end continues to fail to carry-out that sworn duty by refusing to attend the proceedings of the Wisconsin Senate! ‘The injuries eaused by Senator Holperin's simple failure to attend the proceedings of the State Senate are, by any measure, exceptional and iereparable. Countless individuals and their families 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 to participate in debate in the chambers of the State Senate. In addition to the personal agony ‘caused by his failure to camy-out his swom duty to represent the peaple of this Senate District, the inepacable loss of financial resources (as no damages can be recovered from him for his failure to carry-out his duty) is likely to exceed $100,000,000. (Section Il, C, infra) Senator Holperin, by his personal actions, has caused Senato proceedings to fall short of the Constitutionally required quorum, and he has, as a direct result of his actions, prevented a vote on S$ SB 11, the Budget Repair Bill. (Wi. Const. Art. IV, §8 (3/5 quorum require ‘om. Y 14 (19 Senators in Attendance, 20 needed for Quorum))* ‘This request for a Writ of Mandamus does not seek, in any way, to direot how Senator Holperia may vote, but seeks mecely an Order that he camry-out the purely ministerial act of returning to the Senate Chambers in response to the Call of the Majority Leadex so that the Senate may address the matters before it. His attendance will cost him nothing, but his continued + On Thursday, February 17", Senator Holperin, and thirteen other Democrat members of the State Senate fled the chamber and are now hidingoutside of the state "in a place that is hard for them to find” in order to postpone vote, Compl. 119. “The Wisconsin Assembly debated and passed the Budget Repair Bill, January 2012 Spoctal ‘Session Assembly Bill 31 ("SS AB 11”). All that remains is State Senate review and approval, 2 120/S10"d /pl# 12201 1102/10/80 SESE S€8 026 BOTASO NW DISNIWMAZEYS O45failure to attend will cost millions of dollars to the electors of the 12" Senate District and untold and imepacable misery to thoee now reesiving (or who will receive) otherwise unnecessary layot? notices. It is hard to imagine a more clear instence for a Court Ordered Writ of Mixidamus. ELEGAL ST/ Lu ORTING THE GRANT OF. WRIT OF MANDAMUS ‘Mandamus is the appropriate remedy to compel public officers to perform duties arising out of their offices and due to be performed.” State v, Resheske, 110 Wis, 2d 447, 449, 329 N.W.24 275 (Ct. App. 1982); See dlso International Union, United Auto, Aireraft and Agr. Implement Workers v. Gooding, 251 Wis, 362, 29 N.W-2d 730 (1947). The specific requirements for a Writ ate straightforward: This an abuse of discretion to refuse to issue the writ when the noted prerequisites are present: (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 Bav, Village of Lyndon Station, 101 Wis, 2d 472, 494, 305 N.W. 24 89 (1981).See also, Neu v. Vosge, 96 Wis. 489, 71 N.W. 880 (1897); see also Burns v. City of Madison, 92 Wis, 2A 232, 243, 284 N,W.2d 631 (1979). . DHE CIRCUMSTANCES OVERWHELMINGLY SUI QF MANDAMUS. ‘A, The Petition for Writ of Mandamus Is Made To Enforce A Clear Lezal Right, ‘The fitst requirement for a Writ of Mandamus is a determination of whether or not the "ORT THE ISSUANCE OF A WRIT Plaintifi/Petitioner has standing to seek the Writ. Im that regard, Wisconsin is unequivocal in upholding a citizen's right to bring this action, As the Wisconsin Supreme Court has noted, ‘“{WJhere the relief sought [by mandamus] is « matter of public right, the people at large aro the real party, and any citizen is entiled to such writ of mandamus to enforce the petformance of such public duty.” State ex rel, Burnham v, Cornwall, 97 Wis. 565, 567-68, 73 NW. 63 12O/S10"d Lpl# 12:01 1102/10/80 SESE SEB 026 JOIANO MYT DXSNIMAZESMO4Y(1897)(emphasis added), Here, Mr. Barthel is @ citizen of the State and a citizen of Senator Holperin’s Senate District; accordingly, Mr. Barthel has a cleas legal right to seck the Writ. B. TheDuty To Be Bnforeed by the Whit Is Plain And Positive, ‘The plain duty of an elected Senator isto attond proceedings of the State Senate by appearing on the floor ofthe State Senate, That proposition would seem beyond the need for citation, ‘Tho essential charnoter of our State and Nation is a representative democracy in which citizens vote for theie 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 of ‘our Constitution (Wi. Const. Art. IV) and ovr statutes (Wi, Stat, Chapters 5-12) ‘To tho extent there is any doubt how important this obligation is, once elected, each State Senator is required to take a public oath that repeats thet obligation, The Wisconsin Constitution, Article IV, See. 28 provides, “Members ofthe legislatures. .shall,..take and subscribe an oath...faithfully to discharge the duties of their respective offices to the best of their ability.” : “Moreover, once that Oath was taken, Senator Holperin also bound himself to abide by the rules of Senate itself and Wisconsin Senate Rule 16 provides that “Members of the senate may not bo absent from the daily session during the entire day without first obtaining a leave of absence.” Wis, Senato Rule 16. “The Senate has beon in session, and Senator Holperin was absent on the days when the ‘Budget Repair Bill was to be addressed, and, as such, lc has failed to carry-out bis sworn ‘Yfke wee of the phrase “may not” (as here in the Rules of the State Senate) Smposes a mandatory ‘uly on state senators to be present at all daily sessions of the Senate, See Brookhouse v. State Farm tut. Auto, Ins. Co,, 130 Wis. 24 166,170, 387 N.W.2d 82, 84 (Ct. App. 1986)(holding that “(wlogative words in a grant of power should never be construed as directory .. [where am affizmnative direction is flowed by a negative or limiting provision, it becomes mandatory." 4 TZO/L10"d Lbl# 12201 1102/10/80 9e9€ SEB 026 SOLAAD HV) DYSNIMEZEDI=WO4ypositive and plain duty to serve the people of the 12" Senate District. He has failed to attend to the business of that body by appearing in the Senate chamber in response to a Call of the Mijority Leader. There is little doubt that Senator Holperin had and continues to have & mandatory, nou-discretionary duty insposod on him as a public official to attend the daily sessions of the Senate, and he has willfully chosen not to oatry-out that duty, While Senator Holperin enjoys virtually absolute discrotion to vote how he pleases, or not vote at all, he has 10 discretion to avoid his obligation to serve the citizens of his Senate District by attending Senate proceedings." . Substantial Damage Follows From Senator Kolverin’s Continued Failure To Attend tohis Di ‘There are a nuzuber of academically interesting, bet likely irrelevant, concerns that might be ralsed by the Court's direction ofa Writ to a legislator. In this connection, the peraon eubject to the Wait isnot the important question, As the most famous decision of alltime addvessing a Waitof Mandamus, Marbury v. Mfadison, 1 Cranch (OS) 197, 2. ed. 60 (1803) taught, determining if a mandamus is appropriate depends on the specific acts sought to be enforced, not the character ofthe office held by the respondent, Id. “Tt isnot the office of the person to ‘whom the wits directed, but the nature of the thing to be done, that the propriety oF ‘ety of isting a mandamus is tobe determined.”)See aso, 34 Am Jur 862, Mandamus, # 7uiMere ministerial duties of legislative officers, not involving the exercise of any discretion or of legislative fanetions, are frequently enforeed by the courta by means of a wrt of mandamus, Stewart v. Wilson Printing Co., 210 Ala. 624, 99 80, 92 (1924); Kavanaugh v. Chandler, a5s Ky. 182, 72 8.W.2d 1003 (4994), State ex rel. Benton v. Elder, a1 Neb. 169, 47 N.W. 710,20 LRA 796 (4890); Wolfe v. McCaul, 6 Va. 876 (2882); Capito v. Topping, 65 W. Va. 587, 64 SB, 845, 22 TRAGNS) 2089 (1900); and see Ex-parte Pickett, 24 Ala, 91 (1854). Indeed, the public duty of cach legislators go critical to our system of representative democracy in Wisconsin thet the ‘Wisconsin Constitution provides that the members cannot be prevented from attendance even ‘where they face etimbnal and civil proceedings. Wi. Const. Ar. IV, 15. The rationale for that privilege was to “preserve the publie’s right to representation inthe state legielature during the Session ofthe legislature.” Staee v, Beno, 116 Wis. 2d 122, 198-9, 341 N.W.2d 668, 676 (1984), "Wben a legislator cannot appear the people whom the legislator represents lose their voice in debate and vote.” Za. citing Gf Doty v. Strong, 1 Pin. 84 (2840) Gnterpreting article 1, section 6, U.S, Constitation); Anderson v. Roundéree, x Pin. 115 (1842) (interpreting common law and Statutes ofthe Territory of Wisconeln, 1699, al 97). Immunity is appropriate “because a ‘momber has superior duties to performa in another place.” Id. "When a senator is withdrawn by summons, his State loses half te yolee in debate and vote, as it does in his voluntary absence. ‘The enormnous disparity of the evil admits of no comparison.” Id. So too, this action is intended to preserve the public's ight to representation, to maintain the paople's vote, and to avoid the enormocs dnp ofthe er eta publi offal refaing to rpresnt the people who lzod him. 120/810" d LPL Zi 9696 SEB 026 ‘30130 WWT DISNIMEZe 28044Failure of the Legislature to complete action on $$ AB 11 by Wednesday, Merch 2 will preclude the major provision proposed to belance the state Budget for the current biennium—a debt refinance~and as a consequence will cost the citizens of the State more then $100 million (attp://www:politifact.com/wisconsin/statements/201 1/feb/18/rachel-maddow/rachel- maddow-says-wisconsin-track-have-bdget-sur/). More importantly, the failure to address these ‘matters by attendance on the floor of the Senate has caused the toailing of notices of layoff throughout the Stats and will cause additional layoff notices (with all the attendant irreparable agony to those receiving notices end agony to their families) and that failure will ultimately cause actual leyofis of up to 1,500 state workers, (http://www jsonline.com/news/statopolities/116919338.htm)). Additionally, the State operates under a state constitutional requirement that the budget bbe balanced (Asticle VIIL, Section §) and $8 AB 11 addresses that requixement. The Writ will, accordingly, assure compliance with that Constitutional obligation. Failing legislative action, the Executive Branch must act to balance the budget, and layoffs, non-payment of bills and loss of ndditional revenne through refinancing inevitably follow. According to the non-partisan Legislative Fiscal Bureau (httpd//legis.wiseonsin,gov/ifo/Mise/201 1_02,22WILeg,paf), the process of debt refinancing must begin with passage of SS AB 11 by Wednosday, March 2. No other means has been proposed to allow the state to meet the financial xequirements of the $153 million shortfall in Medical in the fiscsl year that ends Sune 30. (http://waker.wi,gov/dooview.asp2docide=21205delocid177), Additionally, $$ AB 11 depends upon $30 million in inoreased payments by state employees for retirement and healtheare, If this provision ot another of equal significance is not adopted, the altemative open to the state is the layoff of approximately 1,500 current employees 120/610" d LbL# 22:01 1102/10/80 SESE S€8 026 SOT430 HVT IMSNIHZED=Wo44(atip'/Avurw politifact.com/wisoonsinfstatements/2011/feb/18/tachel-maaddow/rachel-maddow- says-wisconsin-track-have-budget-sur). Again, no other option has been presented on the floor of the Senate in a manner thet would prevent these layoffs, because Senator Holperin has refused to attend the proceedings or respond to the Call of the Majority Leader. It is expected state Iayof? notices will be issued this week if this Court fails to act on an emergency basis. ‘The Wisconsin Assembly hes acted on SS AB 11 and the State Seuate is now the sole remaining body that must address the matter, A Writ of Mandamus directing Senator Holperin to retum to the floor of the Senate, and to otherwise respond to the Call of the Majority Leader, {gall thet is required to avoid these substantial harms dequate Remedy Available rit of i, Const, Jn the United Statos and in Wisoonsin, there is no eltemative to democracy. Only the ‘Wisconsin legislature can vote to enact legislation. Given that the Wisconsin Constitution, requires a quorum to vote on fiscel bills, this Court is uniquely able, by issuance of a Writ of Mandamus directing Senator Halperin to honor his oath, to solve the problem at hand, If Senator ‘Holperin should choote to defy the judicial finding and Order of @ Writ of Mandamus, then this Court's powers of sontempt far failure to hoor that Writ or to otherwise direct its enforcement, as taught so long ago in Marbury, will presumably suffice to achieve compliance. II, CONCLUSION AND REQUEST, It is hard to overstate the importance of an immediate issuance of a Writ of Mandamus directing Sonator James Holperin to return to the floor of the State Senate. Whatever his motives inny have been atthe outset that caused hit to flee the Capitol, they are no longer relevant when his fatlure to perform his duties as a Senator bave and continue to cause such ieroparable injury to thousands of citizens aud ireparable and ongoing financial injury to every citizen of the State (20/0z0"d évl# 22:01 1102/10/80 SESE 968 026 SOI4HO AW] DISNIMSZEY26043‘The point has been made, It i time for Senator Holpetin to return to his duties, dnd this Court should so direct by a Writ of Mandamus, Dated: February 28, 2011 By, Law Office of Aaron M. Kraewinski S.C. Law Offlee LLC ‘Aaron M, Krzewinski, SBN 1023980 James R. Troupis, SBN 1005341 alrzewinski@ gmail.com jetroupis@troupislawoffice.com 1115 Main St 7609 Elmwood Ave., Suite 102 PO Box 44 Middleton, WI 53562. Oconto, WI 54153 608-807-4096 telephone 920-835-3535 telephone 608-836-1240 fax, (920) 835-3536 fax ‘Hansen Riedérer Dickinson Crueger LLC Richard M, Esenberg. ‘Timothy Hanson, SBN 1044430 SBN 1005622 tim@brdc-law.com 8900 North Arbon Drive ‘Monica Ricderer, SBN 1037992 Milwaukee, WI 53222 monica@hrde-law.com 3IGN. Milwaukee St., Suite, 200 Milwaukee, WI 53202 414-273-8473 telephone 414-273-8476 fax, TZ0/120"d cpl 22201 1102/10/80 9696 S68 026 30140 MV DISNIMEZU: O44STATE OF WISCONSIN, © t= CIRCUITCOURT =: OCONTO.COUNTY.. KEVIN BARTHEL 17485 County Road F Lakewood, Wi. 54138, caseNos I] Cv/00 Plaintiff, Class. Code 30952 v. JAMES HOLPERIN 3575 Monheim Road Conover, WI 54519, Defendant. ne y NOTICE OF MOTION AND MOTION FOR EMERGENCY PEREMPTORY WRIT 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 Wisconsin ‘Statutes, including Wis. Stat. Chapter 783, et seg., 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 petform his mandatory, nendiseretionay and ministerial duty as a Wisconsin State Senator by immediately retuming to Madison, Wisconsin and attending the daily sessions of the Senate and responding to the Call of the Majority Leader, in accordance with his inherent publie duty and obligation as the elected Senator of the 12" Wisconsin State Senate District, his obligations and duties provided in the Wisconsin Constitution, including, but not limited to those provided by Astiole IV, Section 28 and his duties and obligations as a member of the Wisconsin Senate pursuant to the niles of that body. Senator Holperin has willfully chosen to avoid his public duty to attend the sessions of thee Wisconsin State Senate or to otherwise zespond to the Call of the Majority Leader. T2O/LLO'd Lpl# 02:01 110Z/10/80 SESE 98 026 ‘SOTI40 WT IYSNIMAZADISU014In support of said Motion the PlaintifPotitioner hereby incorporates his Verified Complaint, his Brief in Support of Petition for Emergency Peremptory Writ of Mandamus filed herewith, those matters of public record to which the Caut may take judicial notice and such other end further items es may beconte a part of the proceedings, WHEREFORE, plaintifMpetitioner Kevin Barthel, moves this Court to: 1.) Immediately set this matter for a hearing, on an emergency, ex parte, basis; 2,) Issue a Peremptory Writ of Mandamus compelling the Defendant/Respondent, James Holperin, to immediately return to Madison, Wisconsin for the puzpose of attending all daily sessions of the Wisconsin State Senate, responding to the Call of the Majority Leader and addrossing on the floor of the Senate chamber the Budget Repair Bill; 3.) Set a heating as soon as practicable for the Defendant/Respondeant to address the matters of this Writ, ifhe so chooses, and 4.) To grant such other and further relief es this Court deems just and reasonable. 120/210" d LbL# 12:01 1102/10/e0 gege SE8 026 50140 MV DISNTMAZE2WO43Dated: Febuary 28, 2011 Law Office of Aaron M. Krzewinskf S.C. Aaron M, Krzewinski, SBN 1023980 akrzewinski @gmail.com 1115 Main St PO Box 44 Oconto, WI 54153 920-835-3535 telephone (020) 835-3536 fax Hansen Riederer Dickinson Crueger LLC ‘Timothy Hansen, SBN 1044430 tim@hrde-law.com Monica Riederer, SBN 1037992 monica@hrde-law.com 316. Milwaukee St., Suite, 200 Milwaukee, WI 53202 414-273-8473 telephone 414-273-8476 fax 1ZO/El0°d Lvl 1Z201 1102/10/80 sess 968 026 ‘Trogpis Law Ofiice LLC James R. Troupis, SBN 1005341 jetroupis@troupislawoffice.com 7609 Bimwood Ave,, Suite 102 Middleton, WI 53562 608-807-4096 telephone 608-836-1240 fax Richard M, Esenberg SBN 1005622 8900 North Arbon Drive Milwaukee, WI 53222 SO1SH0 MW DXSNIMAZHY O44STATE OF WISCONSIN : CIRCUIT COURT OCONTO COUNTY KEVIN BARTHEL 17485 County Road F Lakewood, Wi, $4138, Plaintiff, ¥, JAMES HOLPERIN 3575 Monheim Road : Conover, WI 54519, See Defendant, BRIEF IN SUPPORT OF MOTION FOR EMERGENCY PEREMPTORY WRIT OF MANDAMUS ‘James Holperin has caused and continues to cause enormous and irreparable hacm to the people of Ocorito County, the electors of the 12" Senate District and the People of the State of Wisconsin by his failure to carry-ont his sworn duty as the elected Senator of the 12 Senate District, Our Supreme Court has explicitly noted, “[I]tis the settled rule of this stato...that,..any citizen is entitled to a writ of mandamus to enforce the performance of such public duty.” State ex rel. Burnham v, Cornwall, 97 Wis. 565, 567-68, 73 N.W. 63 (1897). This action seeks, om an emergency basis, a Writ of Mandamus directing Senator Holperin to immediately appear at the Senate Chambers and thereafter respond to the Call of the Majority Leader in order that a quorim may be achieved to consider budget repair legislation. 1, BACKGROUND Kovin Barthel is an Oconto County resident and be isa voter in the 12° Senate Distriet. . ‘James Holperin is the elected Senator of Wisconsin's 12" Senate Distriot and, as such, he, Ike a 120/plO"d LbL# 12:01 1102/10/20 gee SEB 026 ‘301440 AV DISNIMAZYother pubile officials took an oath “{flaithfully to discharge the duties of their respective offices to the best oftheir ability.” Wi, Const. Art. VIIL, §28, Senator Holperin has failed and continues to fail to oarry-out that swomn duty by refusing to attend the proceedings of the Wisconsin Senate.! "The injuries caused by Senator Holperin’s simple failure fo attend the proceedings of the State Senate are, by any measure, exceptional and isreparable, Countless individuals and their fanailies are now receiving or are about to receive layoff notices, with all the inealoulable agony such notices cause, solely because Senator Holporin has fled the district and refused to ppartiofpate in debate in the channibers of the State Senate, In addition to the personal agony ‘caused by his failure to camy-out his sworn Guty to represent the people of this Senate District, ‘the imeparsble loss of financial resources (as no damages oan be recovered from hhim for his failure to cary-out his duty) is likely to exceed $100,000,000. (Section II, C, infra) Senator Holperin, by his personsl actions, has eaused Senate proceedings to fall shoxt of the Constitutionslly required quorum, and he has, as a direct result of his actions, prevented a vote on SS SB 11, the Budget Repair Bill, (Wi. Const, Art. IV, §8 (2/5 quorum required); Compl. 14 (19 Senators in ‘Attendance, 20 needed for a Quonsmn))* ‘This request for a Writ of Mandamus does not seek, in any way, to direot how Senator Holperin may voto, but seeks metely an Order that he onmry-out the pusely ministerial act of, returning to the Senate Chambers in response to the Call ofthe Majority Leader so thatthe Senate may address the matters bofore it. His attendance will cost him nothing, but his oontinued ‘On Thureday, Februssy 174, Senator Holperi State Senate fled the chamber and are now hidingoutside ofthe state ‘them to find” in order to postpone a vote. Compl. 19: place that is hard for “The Wisconsin Assembly debated and passed the Budget Repair Bill, January 2022 Special Session Assembly Bill 11 ("SS AB 11"). All that remains is State Senate review and approval 2 120/310'd Zrl# 1 ‘9856 SEB 026 30130 AV DXSNIMAZE= O44failure to attend will cost millions of dollars to the electors of the 12" Senste District and untold and ineparable misery to those now receiving (or who will receive) otherwise unnecessary layott notices. It is hard to imagine a more clear instance for a Court Ordered Writ of Mastdamus. Il. THE LEGAL STANDARD IS UNEQUIVOCAL IN SUPPORTING THE GRANT OF A, WRIT OF MUS “Mandamus i the appropriate remedy to compel public officers to perform duties arising out of ther offiees and due to be performed.” State v. Resheske, 110 Wis, 24 447, 449, 329 INW.24 275 (Ct. App. 1982); See also International Union, United Auto. Aireraft and Agr, Implement Workers v. Gooding, 251 Wis. 362, 29 N.W.24 730 (1947). ‘The spovifie requicements for a Writ are straightforward: It is an abuse of aiseetion to rfue to iosue the wit when the noted prorequisites are present: (1) a cloar 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. 24.472, 494, 305 N.W. 24 £89 (1981) See also, Neu v, Voege, 96 Wis, 489, 71 N.W. 880 (1897); see also Burns v. Cty of Madison, 92 Wis, 24 232, 243, 284 N,W.2d 631 (1979). IL. THE CIRCUMSTANCES OVERWHELMINGLY SUPPORT THE ISSUANCE OF A WRIT QF MANDAMUS. ‘A. ‘The Petition for Writ of Mandamus Is Made To Enforce A Clest Legal Right. ‘The first requirement for a Writ of Mandamus is a determination of whether or not the Plaintff/Pettioner has standing to seak the Writ, In that regard, Wisconsin is unequivocal in ‘upholding a citizen's right to bring this action, As the Wisconsin Supreme Court has noted, “qwyhere the relief sought [by mandamus] is « matter of public sight, the people at large are the real party, and any citizen is entitled to such writ of mandamus to enforce the performance of uch public duty.” State ex rel, Burnham v. Cornwall, 97 Wis. 565, 567-68, 73 N.W. 63 120/910" d dpl# 12:01 1102/10/80 SESE SEB O26 30140 MYT TNSNIMAZY2wo44(1897)(emphasis added), Here, Mr Barthel isa citizen of the Stato and a citizen of Senator Holperin’s Senate District; accordingly, Mr. Barthel has a clear legal right to seek the Writ. B. TheDuty To Be Enforced by the Writ Is Plain And Positive ‘The plain duty of an oleated Senator isto attend proceedings of the Stato Senate by appearing on the floor of the State Senate, Thst proposition would seem beyond the need for citation, The essential character of our State and Nation is a representative democracy in which citizens vote for their representatives end then honor those elected representative with the obligation that they attend, debate and vote on matters of public interest. ‘That process is part of our Constitution (Wi. Const, Art. IV) and our statutes (Wi, Stat. Chapters 5-12). ‘To the extent theto is eny doubt how important this obligation is, once elected, each State Senator is required to take a public osth that repeats that obligation, ‘Tse Wisconsin Constitution, Article IV, See. 28 provides, “Members of the legislatures.,.shall.take and subscribe an oath... faithfully to discharge the duties of thelr respective offices to the best of their ability.” Moreover, once that Oath was taken, Senator Holperin also bound himself to abide by the rules of Sonate itself and Wisconsin Senate Rule 16 provides that “Members of the senate may not be absent from the daily session during the entire day without first obtaining a leave of absence.” Wis, Senate Rule 16, “The Senate has been in session, and Senator Hlolperin was absent on the days when the Budget Repair Bill was to be addressed, and, as such, he has failed to carry-out his swom, "The use of the phrase “may not" (aa hore in the Rules of the State Senate) imposes a mandatory duty on state senators to be present at all daily sessions of the Senate, See Brookhouse v. State Farm Mu. Auto, Ins. Co., 330 Wis. 24 166, 170, 987 N.W.2¢ 82, 84 (Ct. App. 1986)(holding that, ““tnjegative words in a grant of power should never be construed as directory .. .[wihere an. affinmative direction is followed by a negative or limiting provision, it becomes mandatory."). 4 T2O/L10"d cbl# 12:01 1102/10/60 SESE SES OLE SOLASO HVT DXSNTMAZe 2044positive and plain duty to serve the people of the 12" Sonate District. He has failed to attend to tho business ofthat body by appearing in the Senate chativer in response to @ Call ofthe ‘Majority Leader, ‘There is litle doubt that Senator Holperin had and continues to have a mandatory, non-discretionary duty izaposed on him as a publie official to attend the daily sessions of the Senate, and he has willfully chosen not to oarry-cut that duty, While Senator Holperin enjoys vistually absolute discretion to vote how he pleases, or not vote atall, he has no discretion to avoid his obligation to serve the citizens of his Senate District by attending Senate proceedings." . Substantial Damaze Follows From Senator Molperin’s Continued Failure To Attend ‘There are a number of academacally interesting, but likely irelevant, concorus that might be rized by the Court's direction of a Writ to a legislator. In this connection, the person soject to the Wait ionot the important question, As the most famous decision of alltime addvessing a Weitof Mandamus, Marbury v. Madison, 1 Cranch (US) 137, 2 L. ed. 60 (3803) taught, determining fe mandamus i appropiate depends onthe pea acts sought be enforoed, not the character of the office held by the respondent. Id, (itis not the office of the person to Whom the writ is directed, but the nature ofthe thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.")See also, 34 Am Jur 862, Mandamus, § 71.Mere ininistetial duties of legislative officers, not involving the exercise of any discretion or of legislative functions, are frequently enforced by the courts by means of a writ of mandamns, ‘Stewart v. Wilson Printing Co., 210 Ala, 624, 99 So. 92 (1924); Kavanaugh v. Chandler, 255 Ky. 182, 72 8.W.2a 1005 (934), State exrel. Berton v. Elder, 31 Neb, 160, 47 NW. 710,20 LRA 796 (4891); Wolfe v. McCaul, 76 Va. 876 (1882); Capito v. Topping, 65 W. Va. 587, 64 SE. 845, 22 LAWNS) 1089 (1909); and see Bx parte Pickett, 24 Ala, 91 (1854). Indeed, the public duty of each legislator is so eritical to our system of representative democracy in Wisconsin that the ‘Wisconsin Constitution provides that the members cannot be prevented from attendance even where they face criminal and civil proceedings. Wi. Const. Art IV, 615. The rationale for that privilege was to "preserve the public's right to representation in the state legislature during the Session of the legislature.” State v. Beno, 116 Wis. 2d 122, 18-99, 341 N.W.2d 668, 676 (1984). “When a legislator cannot appear the people whomn the legislator represents lose their voice in debate and vote.” Id, elting Cf. Doty v. Strong, 1 Pin. 84 (1840) (interpreting article I, section 6, Us. Constitution); Anderson v. Roundéree, 1 Pin. 116 (1841) (interpreting common law and. Statutes of the Territory of Wisconsin, 1899, at x57). Iminunlty is appropriate "because a member has superior duties to perform in another place.” 1d. "When a senator is withdrawn by Summons, his State loses half its voice in debate and vote, as it does in his voluntary absence. ‘The enormous disparity of the evil admits of no comparison.” 1d. So too, this action is intended to presorve the public's right to representation, to maintain the people's vote, and to avald the enormous disparity of the evil of a public official refusing ta represent the people who elected hia, 120/810"d dpl# 22201 1102/10/80 SESE SEB 026 BOAO WW7 DISNTMAZE2WO4yFailure of the Legislature to complete action on $$ AB 11 by Wednesday, March 2 will preclude the major provision proposed to balance the state Budget forthe eurrent biomniam—a dobt refinance-and as a consequence will cost the eftizens of the State more than $100 million. (http:/ovww-politifact.com/*wisconsin/stetements/201 1/feb/1 8/rachel-maddow/rachel+ maddow-says-wisconsin-track-have-budget-sut/), More importantly, the failure to address these matters by attendance on the floor of the Senate has caused the mailing of notices of layofF ‘throughout the State and will cause additional layoff notices (with all the attendant irreparable agony to those receiving notices and agony to their families) and that failure will ultimately cause actual layofis of up to 1,500 state workers, (hitp:sswww jeontine.com/news/statepolition/116919338.htm!). Additionally, the State operates under a state constitutional requirement that the budget ‘be balanced (Acticle VII, Section §) and $$ AB 11 addresses that requirement. The Writ will, accordingly, assure compliance with that Constitutional obligation, Failing legislative action, the Executive Branch must act to balance the budget, and layoffs, nou-payment of bills and loss of additional revenue through refinancing inevitably follow, According to the non-partisan Legislative Fiscal Bureau (hitp:/ogis. wisconsin gov/lfb/Misc/2011_ 02, 22WILeg palf), tho process of debt refinancing must begin with passage of SS AB 11 by Wednesday, March 2. No other means has been proposed to allow the state to meet the financial requirements of the $153, ‘million shortfall ia Medicaid in the fiscal year that ends June 30. (http walker. wl.gow/docview asp?dovid=21205élovid=177) Additionally, $$ AB 11 depends upon $30 million in increased payments by state employees for xetiement and healthcare, If this provision or another of equal significanoo is not adopted, he altemative open to the state is the layoff of approximately 1,500 current ermployees Lza/elo’d Lele 22201 1102/10/80 gece S68 028 SO1S30 WV DISNIMAZeDIcUO4(httpi//wwrw politifact.com/wisconsin/statements/2011/fvb/1 Siachel-maddow/rachel-maddow- says-wisconsin-track-have-budget-sur/). Again, no other option has been presented on the floor of the Senate in 2 manner that would prevent these layofis, because Senator Holperin has reftised to attend the proceedings or respond to the Call of the Majority Leader, It is expected state layo$f notices will be issued thia week if this Court fails to act on an emergency basis, ‘The Wisconsin Assembly has acted on SS AB 11 and the State Seuate is now the sole remaining body that must adéress the matter. A Writ of Mandamus ditecting Senator Holperin to retum to the floor of the Senate, and to otherwise respond to the Call ofthe Majority Leader, is all thet is required to avoid these substantial harms. D. There Is No Adequate Remedy Available Except a Writ of Mandamus by this Court. In the United States and in Wisconsin, there is no altomative to democracy. Only the ‘Wisconsin legislature can vote to enact legislation. Given thet the Wisconsin Constitution requires a quorum to vote on fiscal bills, this Court is uniquely able, by issuence of a Writ of Mandamus directing Senator Holporin to honor his oath, to solve the problom at hand, If Senator Holperin should choose to defy the judicial finding and Order of a Writ of Mandamus, then this Court'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, TIL CONCLUSION AND REQUEST. Its hard to overstate the irmporsance of an immediate issuance of a Writ of Mandaraus directing Senator James Holperin to return to the floot of the State Senate. Whatever his motives inay bave boon at the outset that caused him to flee the Capitol, they are no longer selevant when hig failure to perform his duties as a Senator have and continue to cause such itreparable injury to thousands of citizens and irreparable and ongoing financial injury to every citizen of the State, [2o/ozo'd Lpl# 22:01 1102/10/80 SESE G88 026 SO1440 AW ISNIMAZEDINO14‘The point has been mado. It is time for Senator Holperin to retutn to his duties, and this Court should go direct by a Writ of Mandamus, Dated: February 28, 2011 ‘Law Office of Aaron M. Kraewnski 8.C. Aaron M. Krzewinski, SBN 1023980 James R. Troupis, SBN 1005341 akezewinski@email.com jetroupis@troupislawoftice.com L115 Main St 7609 Elmwood Ave. Suite 102 PO Box 44 Middleton, WI 53562. Oconto, WI 54153 608-807-4096 telephone 920-835-3535 telephone 608-836-1240 fax (620) 835-3536 fax Hansen Riedérer Dickinson Crueger LLC Richard M, Esenberg ‘Timothy Hansen, SBN 1044430 SBN 1005622 tim@brdc-law.com 8900 North Arbon Drive ‘Monica Riederer, SBN 1037992 Milwaukee, WI $3222 monica@hrde-law.com 316 N, Milwatikee St., Suite. 200 Milwaukee, WI 53202 414-273-8473 telephone 414-273-8476 fax 120/120"d Lpl# 22201 1102/10/80 SESE SEB 026 301420 MW] DISNTMAZeDY 2044STATE OF WISCONSIN : IRCUITCOURT . : — OCONTO COUNTY KEVIN BARTHEL 17485 County Road F Lakewood, Wi, 54138, Case No, “wrest Class. Code: 30952 Plaintiff, v. JAMES HOLPERIN 3575 Montieim Road Conover, WI54519, Defendant. VERIFIED COMPLAINT AND PETITION FOR WRIT OF MANDAMUS ‘The plaintiff, Kevin Barthel, alleges and states for his Verified Complaint and Petition for Writ of Mandamits as follows: 1, This is an action seeking a Writ of Mandamus to compel the Defendant, James Holperia, to complete his sworn duty as the Senator from the 12" Wisconsin Senate District to attend sessions of the Wisconsin State Senate. 2. ‘The PlaintifPetitioner, Kevin Barthol, is an individual who resides at 17485 County Road F, Lakewood, Wisconsin 54138, , Oconto County. He is a resident and voter in the 12" ‘Senate District of the Stite of Wisconsin. . 3. The Defendant/Respondent, James Holperin, is an individual who resides at 3575 Monheim Road, Conover, WI 54519. Mr, Holperin was elected to the position of State Senator for the 12" Senate District. JURISDICTION AND VENUE 4, This court has jurisdiction under Wisconsin Statute Chapter 783, ot seq. To/v00'd ble 61201 1102/10/80 Se98 G8 026 BOLASD YT DSNIMAZED:40145, This particular Circuit Court for Oconto County affords the proper venue for this action in 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 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 Senate and to otherwise respond to the Call of the Majority Leader. 7. Mt. Barthel has standing to bring this action because “where the relief sought [by mandamus] is a matter of public right, the peoplo at large are the real party, and any citizen is entitled to a writ of mandamus to enforce the performance of such public duty." State ex rel. Burnham v, Cornwall, 97 Wis, 565, 567-68, 73.N.W. 63 (1897)(emphasis added). BACKGROUND AND FACTS 8, On February 17, 2011, the Wisconsin State Senate was called into session and the Budget Repair Bill, January 2011 Special Session Senate Bill 11, ("SS 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 Stato of Wisconsin to Illinois, where they have apparently been staying at least during Senate sessions since that date, 10, Art. IV, See. 28 of the Wisconsin Constitution provides that “[mlembers of the legislatures...shall...take and subsetibe an oath...faithfully to discharge the duties of their respective offices to the best of their ability.” Among those duties is attendance of duly elected State Senators at sessions of the Wisconsin State Sonate. 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, 120/S00"d LpL# 61201 1102/10/80 S658 468 026 JOI40 AW] IXSNTMAZHZWO44Wisconsin Senate Rule 16 also requires attendance of State Senators on days when the Senate is in session, 12: The Senate was in session on February 17, 18, 19, 22, 24, and 25, 13, Senator Holperin failed fo 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 VII, Section 8 of the Wisconsin Constitution requires 3/5 quorum for a vote on all fiscal issues, which means that there must be 20 setiators present to constitute a quorum and convene a vote on the Budget Repait Bill. 15. On inforniation and belief, Senator Holperin's walkout was conceived and executed for the specific purpose of denying the Senate a quorum sufficient to voto on the Budget Repair Bill. 16, As a direct rosult 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 of the Majority Leader, the Senate has been unable to meet the quorum requirement and cannot conduct business or vote on critical legislation, 17. On information and belief, the failure of the Legislature to complete action on January 2011 Special Session Assembly Bill 11 (“SS AB 11”) by Wednesday, March 2, 2011, will prevent major provisions of that Bill from becoming effective, and those provisions are essential to balancing the state Budget for the current biennium. 18, On information and beliof, the failure to address the current year budget deficit of at least $137 million will result in the layoff of an estimated 1,500 state workers and the failure of the state to pay Medicaid and other 19, Additionally, the state operates under a state constitutional requirement that the budget be balanced (Article VII, Section 5). SS AB 11 is the only means 60 far proposed as legislation or by amendment on the floor of the State Senate to meet that State constitutional requirement, 3 120/800"d Lvl# 02201 1102/10/80 9698 SEB 026 301440 WW] ISNTHAZE:Wo4y20. On information and belief, the major provision of the Bill that allows the financial obligations of the State 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 State Senate to allow the State to meet the financial requirements of the $153 million shortfall in Medicaid in the fiscal year that ends June 30. 21. On information and beliéf, SS AB 11 depends upon $30 million in increased paymonts by state employees for retirement and healthcare. If this provision or another of equal significance is not adopted, the alternative the State Executive Branch intends to adopt is the layoff of approximately 1,500 current employees. 22, The actions of Senator Holperin described here have been, and contimus to be, particularly harmful to the citizens of the 12" Senate District. This Senate District depends, in great measure, on tourism. By fleeing the State, rather than address forthrightly, on the floor of the Senate, the important budget issues of our State, Senator Holperin has and continues to create a negative impression on those who might otherwise travel to this area, Particularly in these difficult economié times, Senator Holperin's actions will have a seriously negative impact on the citizens of the 12th 23, Senator Holperin hes not provided any option to the proposed legislation pursuant to the normal legislative process on the floor of the State Senate, and cannot do so unless he attends those sessions and responds to the Call of the Majority Leader to nddress the Bill, On information and belief, no other option has been brought before the State Senate in the form of Iogislation or amendment to legislation on the floor of the State Senate to prevent these layofis and if 8S AB does not pass, it is expected layoiT notices willbe issued within the coming week. 120/200" d Lpl# 02:01 1102/10/80 SES S68 026 SOL430 WT DXSNIMSZUO4524, There is no adequate remedy at law to prevent this substantial harm that will befall the State of Wisconsin and its citizens if this Writ of Mandamus is not issued, 25, Mr. Barthel has brought this action to compel Senator Holperia to comply with the inherent obligations of his elective office, tho Wisconsin Stato Constitution and rules of the State Senate, and to otherwise fulfill his duty as an elected State Senator to his constituents, COUNT PETITION FOR PEREMPTORY WRIT OF MANDAMUS, 26. Plaintift/Petitioner repoats and realleges the allegations in Paragraphs 1 through 25 above as if incorporated in their entirety herein, 27. PlaintifiPetitioner and Senator Holperin’s other constituents have a clea legal right to have their elected Senator comply with his inherent duties as an elected Senator, the mandates of the Wisconsin Constitation and the Rules of the Wisconsin State Senate, 28, Senator Holperin’s public duty is plain and positive: he must attend the daily sessions of the State Senate and respond to the Call of the Majority Leader to address the Budget Repair Bill. 29, Substantial damage will follow if Senator Holperin is not compelled to fulfil his plain and positive duty to attend the daily sessions of the Senate and respond to the Call of the Majority Leader fo address the Budget Repair Bill. 30, There is no adequate remedy at law to prevent this substantial harm, as there is no substitute for repiesentative democracy in this country or in this state, 31, There are no special teasons that would make Mr, Barthel resort to this remedy of issuing a peremptory writ of mandamus inequitable, WHEREFORE, plainti (petitioner Kevin Barthel, respectfully requests that: 120/800°d Lbl# 02:01 1102/10/e0 SESE 968 026 JOL0 Av YONAA) This Court issue a Peremptory Writ of Mandainus compelling the Defendant/Respondent, Jamos Holperin, to immediately return to Madison, Wisconsin, attend all daily sessions of the Wisconsin State Senate and tespond to the Call of the Majority Leader; 1B.) That in the event James Holperin refuses or neglects to perform that prescribed duty that he be found guilty ofa Class H felony pursuant to Wis Stat, §783.07; C.) That the Court award the Plaintifi/Petitioner appropriate costs and attorneys fees, and D.) That the Court grant such other and further relief that this Court deems just and ‘appropriate, including such orders as may be requited to insure compliance with this Court's Writ, 120/800" d Lbl# 02:01 1102/10/80 SESE S68 026 SOLA4O WV TXSNTHS: 144VERIFICATION State of Wisconsin County of Oconto I, Kovin Barthel, verify that the factual allegations set forth in the foregoing Verified Complaint and Petition for Writ of Mandamu: except as to those matters therein stated to be is aro true and correct to the best of my knowledge, alleged upon information and belief, and as to those matters, I believe them to be true, Dated thig 28" day of February, 2011. a Wi Auth f ‘Kevin Barthel Law Office of Aaron M. Krzewinski $.C. Aaron M, Krzewinski, SBN 1023980 akrzewinski@ginail.com 1115 Main St PO Box 44 Oconto, WI54153 920-835-3535 telephone (620) 835-3536 fax Hansen Riederer Dickinson Crueger LLC ‘Timothy Hansen, SBN 1044430 tim@hrde-law.com Monies Riederer, SBN 1037992 monica@hrde-law.com B16N, Milwaukee St,, Suite, 200 Milwaukee, WI 53202 414-273-8473 telephone 414-273-8476 fax 1Z0/OL0"d Lol# 02:01 1102/10/80 Troupis Law Office LLC James R. Troupis, SBN 1005341 Jrtronpis@troupislawoflice.com "7609 Elmwood Ave., Suite 102 Middleton, WI 53562 608-807-4096 telephone 608-836-1240 fax Richard M. Exenberg SBN 1005622 8900 North Arbon Drive Milwaukee, WI 53222 SESE 968 026 SOTHO V1 DISNIMAZDIUO14