A sheriff’s assignment of a deputy to an undercover drug investigation falls within the constitutionally protected powers of the sheriff and could not be limited by a collective bargaining agreement. Manitowoc County v. Local 986B, 168 Wis. 2d 819, 484 N.W.2d 534 (1992). See also Washington County v. Washington County Deputy Sheriff’s Ass’n, 192 Wis. 2d 728, 531 N.W.2d 468 (Ct. App. 1995). The sheriff’s power to appoint, dismiss, or demote a deputy is not constitutionally protected and may be limited by a collective bargaining agreement not in conflict with the statutes. Heitkemper v. Wirsing, 194 Wis. 2d 182, 533 N.W.2d 770 (1995). See also Brown County Sheriff’s Department v. Brown County Sheriff’s Department Non-Supervisory Employees Ass’n, 194 Wis. 2d 265, 533 N.W.2d 766 (1995). The power to hire does not give character and distinction to the office of sheriff; it is not a power peculiar to the office. Certain duties of the sheriff at common law that are peculiar to the office and that characterize and distinguish the office are constitutionally protected from legislative interference, but the constitution does not prohibit all legislative change in the powers and duties of a sheriff as they existed at common law. Internal management and administrative duties that neither give character nor distinction to the office fall within the mundane and common administrative duties that may be regulated by the legislature. Hiring and firing personnel to provide food to inmates is subject to legislative regulation, including collective bargaining under s. 111.70. Kocken v. Wisconsin Council 40 AFSCME, 2007 WI 72, 301 Wis. 2d 266, 732 N.W.2d 828, 05-2742. The assignment of deputies to transport federal and state prisoners to and from a county jail pursuant to a contract for the rental of bed space was not a constitutionally protected duty of the sheriff’s office and was thus subject to the restrictions of a collective bargaining agreement. Ozaukee County v. Labor Ass’n of Wisconsin, 2008 WI App 174, 315 Wis. 2d 102, 763 N.W.2d 140, 07-1615. A sheriff may not be restricted in whom the sheriff assigns to carry out the sheriff’s constitutional duties if the sheriff is performing immemorial, principal, and important duties characterized as belonging to the sheriff at common law. Attending on the courts is one of the duties preserved for the sheriff by the constitution. When a sheriff effects the delivery of prisoners pursuant to court-issued writs, the sheriff is attending on the court. The sheriff could contract with a private entity for the transportation of prisoners, rather than utilizing deputies employed by the sheriff’s department. Brown County Sheriff’s Department Non-Supervisory Labor Ass’n v. Brown County, 2009 WI App 75, 318 Wis. 2d 774, 767 N.W.2d 600, 08-2069. Staffing an x-ray and metal detector security screening station is not one of those “certain immemorial, principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff” and is not part of the sheriff’s constitutionally protected powers that cannot be limited by a collective bargaining agreement. Washington County v. Washington County Deputy Sheriff’s Ass’n, 2009 WI App 116, 320 Wis. 2d 570, 772 N.W.2d 697, 08-1210. The transport of individuals in conjunction with the service or execution of all processes, writs, precepts, and orders constitutes immemorial, principal, and important duties that characterize and distinguish the office of sheriff and fall within the sheriff’s constitutional powers, rights, and duties. As such, the sheriff has the constitutional authority to determine how to carry out those duties and can elect to privatize those duties. That s. 59.26 (4) specifically directs that the sheriff must act personally or by means of the sheriff’s undersheriff or deputies is not persuasive. The simple fact that the legislature codified a duty and responsibility of the sheriff, like providing food for jail inmates, does not strip sheriffs of any constitutional protections they may have regarding this duty. Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 2009 WI App 123, 320 Wis. 2d 486, 772 N.W.2d 216, 08-2290. The following powers of the sheriff are constitutionally protected: 1) the operation of the jail; 2) attendance on the courts; 3) maintaining law and order; and 4) preserving the peace. Even if a duty is related to one of these powers, however, that duty may still be regulated if it is a non-distinctive, mundane and commonplace, internal management, and administrative duty of a sheriff. The constitutional prerogative of the office of sheriff to maintain law and order and preserve the peace does not encompass the power to appoint or dismiss deputies. Milwaukee Deputy Sheriffs’ Ass’n v. Milwaukee County, 2016 WI App 56, 370 Wis. 2d 644, 883 N.W.2d 154, 15-1577. Implementation legislation is necessary before counties under 500,000 may abolish the office of coroner. 61 Atty. Gen. 355.
A county board in a county under 500,000 can abolish the elective office of coroner and implement a medical examiner system to be effective at the end of incumbent coroner’s term. Language in 61 Atty. Gen. 355 inconsistent herewith is withdrawn. 63 Atty. Gen. 361.
This section does not immunize counties from liability for their own acts. Soderbeck v. Burnett County, 752 F.2d 285 (1985). A county sheriff is an officer of the state, not county, when fulfilling constitutional obligations. Soderbeck v. Burnett County, 821 F.2d 446 (1987). A sheriff represents the county when enforcing the law. Sovereign immunity for state officials under the 11th amendment to the U.S. Constitution does not apply. Abraham v. Piechowski, 13 F. Supp. 2d 870 (1998). An entity characterized as the “office of the district attorney” or “district attorney,” separate from the elected official, does not have authority to sue or be sued. Buchanan v. City of Kenosha, 57 F. Supp. 2d 675 (1999). JUDICIARY
VII,1Impeachment; trial. Section 1. [As amended Nov. 1932] The court for the trial of impeachments shall be composed of the senate. The assembly shall have the power of impeaching all civil officers of this state for corrupt conduct in office, or for crimes and misdemeanors; but a majority of all the members elected shall concur in an impeachment. On the trial of an impeachment against the governor, the lieutenant governor shall not act as a member of the court. No judicial officer shall exercise his office, after he shall have been impeached, until his acquittal. Before the trial of an impeachment the members of the court shall take an oath or affirmation truly and impartially to try the impeachment according to evidence; and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold any office of honor, profit or trust under the state; but the party impeached shall be liable to indictment, trial and punishment according to law. [1929 J.R. 72, 1931 J.R. 58, vote Nov. 1932] VII,2Court system. Section 2. [As amended April 1966 and April 1977] The judicial power of this state shall be vested in a unified court system consisting of one supreme court, a court of appeals, a circuit court, such trial courts of general uniform statewide jurisdiction as the legislature may create by law, and a municipal court if authorized by the legislature under section 14. [1963 J.R. 48, 1965 J.R. 50, vote April 1966; 1975 J.R. 13, 1977 J.R. 7, vote April 1977] The Shawano-Menominee court was a constitutional district court since Menominee County was not organized for judicial purposes. Pamanet v. State, 49 Wis. 2d 501, 182 N.W.2d 459 (1971). If s. 425.113 were to be interpreted so as to remove a court’s power to issue a body attachment for one who chooses to ignore its orders, that interpretation would cause the statute to be unconstitutional as a violation of the principle of separation of powers. Smith v. Burns, 65 Wis. 2d 638, 223 N.W.2d 562 (1974). Courts have no inherent power to stay or suspend the execution of a sentence in the absence of statutory authority. A court’s refusal to impose a legislatively mandated sentence constitutes an abuse of discretion and usurpation of the legislative field. State v. Sittig, 75 Wis. 2d 497, 249 N.W.2d 770 (1977). The Wisconsin Employment Relations Commission is authorized by s. 111.06 (1) (L) to determine whether conduct in violation of criminal law has occurred, which is not a delegation of judicial power in violation of this section nor does the administrative procedure violate article I, section 8. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218 (1978). Courts have no inherent power to dismiss a criminal complaint with prejudice prior to attachment of jeopardy. State v. Braunsdorf, 92 Wis. 2d 849, 286 N.W.2d 14 (Ct. App. 1979). The highest standard of proof of an articulated compelling need must be met before a court will order the expenditure of public funds for its own needs. Flynn v. DOA, 216 Wis. 2d 521, 576 N.W.2d 245 (1998), 96-3266. Judicial assistants are subject to the judiciary’s exclusive authority once appointed. Any collective bargaining agreement between a county and employees’ union that provides for possible “bumping” of the assistant by another employee and final and binding arbitration regarding disputes over bumping is an unconstitutional infringement on the court’s inherent powers. Barland v. Eau Claire County, 216 Wis. 2d 560, 575 N.W.2d 691 (1998), 96-1607. Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary’s constitutional function to impose criminal penalties. State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999), 97-2751. A court’s inherent powers are those that must be used to enable the judiciary to accomplish its constitutional or statutory functions and include the power to maintain the dignity of the court, transact its business, or accomplish the purpose of its existence. Courts have inherent power to investigate claims that a party is engaging in fraudulent behavior or improperly influencing witnesses, and a court is within its authority to hold an evidentiary hearing on such matters. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915. The issuance of a search warrant is not an exercise of “[t]he judicial power,” as that phrase in employed in this section. Instead, issuance of a valid search warrant requires that the individual be authorized by law to issue the warrant, that the individual be neutral and detached, and that the warrant be issued only upon a showing of probable cause. Section 757.69 (1) (b), which allocates the power to issue search warrants to circuit court commissioners, does not impermissibly intrude upon “[t]he judicial power” granted to the courts by this section. State v. Williams, 2012 WI 59, 341 Wis. 2d 191, 814 N.W.2d 460, 10-1551. The order of reference in this case impermissibly delegated to the referee judicial power vested by this section in Wisconsin’s unified court system. Constitutional judges can take no power from the legislature to subdelegate their judicial functions. Referees may share in judicial labor but cannot assume the place of the judge. In this case, the order of reference enabled the referee to hear and decide all motions filed, whether discovery or dispositive, subject to review by the circuit court under the standard of erroneous exercise of discretion, impermissibly reducing the function of the circuit court to that of a reviewing court. Insofar as the order of reference authorized the referee to supervise pretrial discovery disputes, the order did not contravene the state constitution’s vesting of judicial power in a unified court system. State ex rel. Universal Processing Services of Wisconsin, LLC v. Circuit Court, 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267, 16-0923. Permitting an executive agency to review judges’ official actions for compliance with the victims’ rights laws would upend the constitutional structure of separated powers. An executive agency, acting pursuant to authority delegated by the legislature, may not review a court’s exercise of discretion, declare its application of the law to be in error, and then sanction the judge for making a decision the agency disfavors. Any other response would unconstitutionally permit an executive entity to substitute its judgment for that of the judge—effectively imposing an executive veto over discretionary judicial decision making and incentivizing judges to make decisions not in accordance with the law but in accordance with the demands of the executive branch in order to avoid a public rebuke reinforced with the imprimatur of a quasi-judicial board. Gabler v. Crime Victims Rights Board, 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384, 16-0275. While the court’s constitutional judicial discipline power does not expressly include authority to assess a forfeiture or impose an equitable remedy, allowing the legislature to create an executive board with the power to penalize or enjoin official judicial action would be anathema to the judicial independence preserved by the separation of governmental powers under the Wisconsin Constitution. Gabler v. Crime Victims Rights Board, 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384, 16-0275. Inherent authority of courts consists of only those powers that are necessary for the judiciary to accomplish its constitutionally mandated functions and preserve its role as a coequal branch of government. Wisconsin courts have generally exercised inherent authority in three areas: 1) to guard against actions that would impair the powers or efficacy of the courts or judicial system; 2) to regulate the bench and bar; and 3) to ensure the efficient and effective functioning of the court and to fairly administer justice. State v. Schwind, 2019 WI 48, 386 Wis. 2d 526, 926 N.W.2d 742, 17-0141. Probation is a statutory creation, and the power to reduce or terminate a term of probation is not necessary for courts to accomplish their constitutionally mandated functions. Therefore, Wisconsin courts do not have the inherent authority to reduce or terminate a period of probation. State v. Schwind, 2019 WI 48, 386 Wis. 2d 526, 926 N.W.2d 742, 17-0141. In mental hearings under former s. 51.02, 1973 stats., or alcohol or drug abuse hearings under former s. 51.09 (1), 1973 stats., the power to appoint an attorney at public expense, to determine indigency, and to fix compensation are judicial and must be exercised by the court or under its direction and cannot be limited by the county board or delegated to a private nonprofit corporation. 63 Atty. Gen. 323.
Unless acting in a clear absence of all jurisdiction, judges are immune from liability for judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978). An integrated state bar’s use of mandatory dues to fund political or ideological activities violates free speech provisions. Keller v. State Bar of California, 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990). State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the elections clause under article I, section 4, of the U.S. Constitution. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by the elections clause. Moore v. Harper, 600 U.S. ___, 143 S. Ct. 2065, 216 L. Ed. 2d 729 (2023). Court Reform of 1977: The Wisconsin Supreme Court Ten Years Later. Bablitch. 72 MLR 1 (1988).
The Separation of Powers: Control of Courts and Lawyers. Currie & Resh. WBB Dec. 1974.
VII,3Supreme court: jurisdiction. Section 3. [As amended April 1977] VII,3(1)(1) The supreme court shall have superintending and administrative authority over all courts. VII,3(2)(2) The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction. VII,3(3)(3) The supreme court may review judgments and orders of the court of appeals, may remove cases from the court of appeals and may accept cases on certification by the court of appeals. [1975 J.R. 13, 1977 J.R. 7, vote April 1977] Discussing the authority of the supreme court to review and modify criminal sentences. Riley v. State, 47 Wis. 2d 801, 177 N.W.2d 838 (1970). The supreme court’s authority to issue a writ of error is not dependent upon a specific legislative enactment, but the constitution and statutes relating to its appellate jurisdiction give it the authority to issue such writs as are necessary to exercise its appellate jurisdiction. Shavie v. State, 49 Wis. 2d 379, 182 N.W.2d 505 (1971). A writ of error coram nobis cannot be used for the purpose of producing newly discovered evidence affecting only the credibility of a confession. Mikulovsky v. State, 54 Wis. 2d 699, 196 N.W.2d 748 (1972). The supreme court exercises an inherent supervisory power over the practice of the law and this can be more effectively exercised with an independent review. Contrary language, if any, in prior cases is withdrawn. Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179, 214 N.W.2d 401 (1974). The supreme court declines to adopt the equitable doctrine of “substituted judgment” under which a court substitutes its judgment for that of a person incompetent to arrive at a decision for himself or herself. Lausier v. Pescinski, 67 Wis. 2d 4, 226 N.W.2d 180 (1975). Courts are endowed with all judicial powers essential to carry out the judicial functions delegated to the courts. These powers are known as incidental, implied, or inherent powers, all of which terms are used to describe those powers that must necessarily be used by the various departments of government in order that they may efficiently perform the functions imposed upon them by the people. In re Kading, 70 Wis. 2d 508, 235 N.W.2d 409 (1975). Adoption by the supreme court of a rule requiring annual financial disclosure by judges of assets and liabilities was valid and enforceable under the court’s inherent power to function as the supreme court and under the court’s general superintending control over all inferior courts. In re Kading, 70 Wis. 2d 508, 235 N.W.2d 409 (1975). A declaration of rights is an appropriate vehicle for the exercise of superintending control over inferior courts. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573 (1977). The supreme court has power to formulate and carry into effect a court system budget. State ex rel. Moran v. DOA, 103 Wis. 2d 311, 307 N.W.2d 658 (1981). The court will invalidate legislation only for constitutional violations. State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983). A statute that required the withholding of a judge’s salary for failure to decide cases within a specified time was an unconstitutional intrusion by the legislature into an area of exclusive judicial authority. In re Matter of Complaint Against Grady, 118 Wis. 2d 762, 348 N.W.2d 559 (1984). A court’s inherent power to appoint counsel is not derived from an individual litigant’s constitutional right to counsel, but rather is inherent to serve the interests of the court. A court may use its inherent discretionary authority to appoint counsel in furtherance of the court’s need for the orderly and fair presentation of a case. Joni B. v. State, 202 Wis. 2d 1, 549 N.W.2d 411 (1996), 95-2757. When confronted with a direct conflict between a decision of the state supreme court and a later decision of the U.S. Supreme Court on a matter of federal law, the court of appeals may certify the case to the state supreme court under s. 809.61. If it does not, or certification is not accepted, the supremacy clause of the U.S. Constitution compels adherence to U.S. Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of the state supreme court. State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142, 00-1680. Determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought. A majority of the court does not have the power to disqualify a judicial peer from performing the constitutional functions of a supreme court justice on a case-by-case basis. Aside from actions brought under the Judicial Code, the only constitutional authority to remove a justice rests with the legislature, by impeachment or address, or the voters by recall. State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d 175, 08-0697. On the facts of this case, the court exercised its superintending authority to determine that the superintendent of public instruction and the Department of Public Instruction were entitled to counsel of their choice and were not required to be represented by the Department of Justice. Koschkee v. Evers, 2018 WI 82, 382 Wis. 2d 666, 913 N.W.2d 878, 17-2278. The term “supervisory writ” is both: 1) the general term used in petitioning the court of appeals to exercise its constitutional supervisory authority and in petitioning the supreme court to exercise its constitutional superintending authority; and 2) a new writ the supreme court devised independent of the traditional common law writs. State ex rel. CityDeck Landing LLC v. Circuit Court, 2019 WI 15, 385 Wis. 2d 516, 922 N.W.2d 832, 18-0291. The court will not exercise its superintending power to require that courts employ a specific procedure to establish a sufficient factual basis when accepting an Alford, 400 U.S. 25 (1970), plea when there is another adequate remedy, by appeal or otherwise, for the conduct of the trial court. State v. Nash, 2020 WI 85, 394 Wis. 2d 238, 951 N.W.2d 404, 18-0731. Inherent Power and Administrative Court Reform. Laufenberg & Van Remmen. 58 MLR 133 (1975).
VII,4Supreme court: election, chief justice, court system administration. Section 4. [As amended Nov. 1877, April 1889, April 1903, April 1977, and April 2015] VII,4(1)(1) The supreme court shall have 7 members who shall be known as justices of the supreme court. Justices shall be elected for 10-year terms of office commencing with the August 1 next succeeding the election. Only one justice may be elected in any year. Any 4 justices shall constitute a quorum for the conduct of the court’s business. VII,4(2)(2) The chief justice of the supreme court shall be elected for a term of 2 years by a majority of the justices then serving on the court. The justice so designated as chief justice may, irrevocably, decline to serve as chief justice or resign as chief justice but continue to serve as a justice of the supreme court. VII,4(3)(3) The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court. The chief justice may assign any judge of a court of record to aid in the proper disposition of judicial business in any court of record except the supreme court. [1876 J.R. 10, 1877 J.R. 1, 1877 c. 48, vote Nov. 1877; 1887 J.R. 5, 1889 J.R. 3, 1889 c. 22, vote April 1889; 1901 J.R. 8, 1903 J.R. 7, 1903 c. 10, vote April 1903; 1975 J.R. 13, 1977 J.R. 7, vote April 1977; 2013 J.R. 16, 2015 J.R. 2, vote April 2015] Voting and Electoral Politics in the Wisconsin Supreme Court. Czarnezki. 87 MLR 323 (2003).
Step One to Recusal Reform: Find an Alternative to the Rule of Necessity. Croy. 2019 WLR 623.
Judicial circuits. Section 5. [Repealed April 1977; see 1975 J.R. 13, 1977 J.R. 7, vote April 1977.]
VII,5Court of appeals. Section 5. [As created April 1977] VII,5(1)(1) The legislature shall by law combine the judicial circuits of the state into one or more districts for the court of appeals and shall designate in each district the locations where the appeals court shall sit for the convenience of litigants. VII,5(2)(2) For each district of the appeals court there shall be chosen by the qualified electors of the district one or more appeals judges as prescribed by law, who shall sit as prescribed by law. Appeals judges shall be elected for 6-year terms and shall reside in the district from which elected. No alteration of district or circuit boundaries shall have the effect of removing an appeals judge from office during the judge’s term. In case of an increase in the number of appeals judges, the first judge or judges shall be elected for full terms unless the legislature prescribes a shorter initial term for staggering of terms. VII,5(3)(3) The appeals court shall have such appellate jurisdiction in the district, including jurisdiction to review administrative proceedings, as the legislature may provide by law, but shall have no original jurisdiction other than by prerogative writ. The appeals court may issue all writs necessary in aid of its jurisdiction and shall have supervisory authority over all actions and proceedings in the courts in the district. [1975 J.R. 13, 1977 J.R. 7, vote April 1977] The court of appeals does not have jurisdiction to entertain an original action unrelated to its supervisory or appellate authority over circuit courts. State ex rel. Swan v. Elections Board, 133 Wis. 2d 87, 394 N.W.2d 732 (1986). The court of appeals is authorized to exercise its supervisory authority over a chief judge who is ruling on a substitution request. State ex rel. James L.J. v. Circuit Court, 200 Wis. 2d 496, 546 N.W.2d 460 (1996), 94-2043. Only the supreme court has the power to overrule, modify, or withdraw language from a published opinion of the court of appeals. Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), 95-1963. The term “supervisory writ” is both: 1) the general term used in petitioning the court of appeals to exercise its constitutional supervisory authority and in petitioning the supreme court to exercise its constitutional superintending authority; and 2) a new writ the supreme court devised independent of the traditional common law writs. State ex rel. CityDeck Landing LLC v. Circuit Court, 2019 WI 15, 385 Wis. 2d 516, 922 N.W.2d 832, 18-0291. A Shift in the Bottleneck: The Appellate Caseload Problem Twenty Years After the Creation of The Wisconsin Court of Appeals. Gabrys. 1998 WLR 1547.
VII,6Circuit court: boundaries. Section 6. [As amended April 1977] The legislature shall prescribe by law the number of judicial circuits, making them as compact and convenient as practicable, and bounding them by county lines. No alteration of circuit boundaries shall have the effect of removing a circuit judge from office during the judge’s term. In case of an increase of circuits, the first judge or judges shall be elected. [1975 J.R. 13, 1977 J.R. 7, vote April 1977] VII,7Circuit court: election. Section 7. [As amended April 1897, Nov. 1924, and April 1977] For each circuit there shall be chosen by the qualified electors thereof one or more circuit judges as prescribed by law. Circuit judges shall be elected for 6-year terms and shall reside in the circuit from which elected. [1895 J.R. 8, 1897 J.R. 9, 1897 c. 69, vote April 1897; 1921 J.R. 24S, 1923 J.R. 64, 1923 c. 408, vote Nov. 1924; 1975 J.R. 13, 1977 J.R. 7, vote April 1977] VII,8Circuit court: jurisdiction. Section 8. [As amended April 1977] Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by law. The circuit court may issue all writs necessary in aid of its jurisdiction. [1975 J.R. 13, 1977 J.R. 7, vote April 1977] Although prohibition is not the appropriate remedy to suppress prosecution on an illegal search warrant, the supreme court treated the case as a petition for habeas corpus. State ex rel. Furlong v. Waukesha County Court, 47 Wis. 2d 515, 177 N.W.2d 333 (1970). Certiorari cannot be used to upset the legislative discretion of a city council but the court should review the council’s action to determine whether there was a rational factual basis for it. The review is limited to the record consisting of the petition and the return to the writ, plus matters of which the court could take judicial notice. State ex rel. Hippler v. City of Baraboo, 47 Wis. 2d 603, 178 N.W.2d 1 (1970). A writ of prohibition may not be used to test the admissibility of evidence at an impending trial. State ex rel. Cortez v. Board of Fire & Police Commissioners, 49 Wis. 2d 130, 181 N.W.2d 378 (1970). Jurisdiction depends not on whether the relief asked for is available, but on whether the court has the power to hear the kind of action brought. It is not defeated by the possibility that averments in a complaint might fail to state a cause of action, for any such failure calls for a judgment on the merits not for a dismissal for want of jurisdiction. Murphy v. Miller Brewing Co., 50 Wis. 2d 323, 184 N.W.2d 141 (1971). Mandamus is a discretionary writ and the order of a trial court refusing to quash it will not be reversed except for an abuse of discretion. A court can treat it as a motion for declaratory relief. Milwaukee County v. Schmidt, 52 Wis. 2d 58, 187 N.W.2d 777 (1971). Discussing differences between common law and statutory certiorari. Browndale International, Ltd. v. Board of Adjustment, 60 Wis. 2d 182, 208 N.W.2d 121 (1973). The statutory designation of circuit court branches as criminal court branches does not deprive other branches of criminal jurisdiction. Dumer v. State, 64 Wis. 2d 590, 219 N.W.2d 592 (1974).
