Appeal from the United States District Court for the Eastern District of Wisconsin. No. 95-C-1263 Thomas J. Curran, Judge.
Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.
Although cranes and bulldozers can be seen working on a new ball park behind the right-center field fence at County Stadium, the present home of the Brewers in Milwaukee, Wisconsin, it's not a done deal as far as the plaintiffs in this case are concerned. They challenge the constitutionality of the law -- the Stadium Act, sec.sec. 229.64 et seq., Wisconsin Statutes -- which made it possible for work to begin on building the new diamond for the Milwaukee Brewers. The new venue, Miller Park, is scheduled to open for business in 2000. But not if the plaintiffs in this case have anything to say about it.
The Stadium Act, enacted after vigorous public debate during a special session of the Wisconsin Legislature in the fall of 1995, created a mechanism for forming local baseball park districts in populous areas of Wisconsin and giving those districts the authority to build and maintain professional baseball stadiums. A district must include a county with a population in excess of 500,000 as well as contiguous counties not included in a different district. The district may issue revenue bonds for a portion of the costs of the stadium and may impose a sales and use tax to repay the bonds. The state does not guarantee the bonds but may provide a non-binding "moral obligation" pledge. The plaintiffs here, a determined group of taxpayers, the Libertarian Party of Wisconsin and the Libertarian Party of Metropolitan Milwaukee, are convinced that, in almost every conceivable way, the Stadium Act violates the Wisconsin and the United States Constitutions. Their attack on the Act has been waged both in the Wisconsin courts and in the federal district court in Milwaukee.
First, the Libertarians and certain taxpayers, who with the exception of George Watts are the same plaintiffs as in the federal case, filed a lawsuit in the circuit court for Milwaukee County. The defendants, led by Wisconsin Governor Tommy G. Thompson, petitioned the Wisconsin Supreme Court to hear the case under its original jurisdiction. The petition was granted and the parties were realigned. Even though the taxpayers (we'll refer to the plaintiffs collectively as the taxpayers) were not the "petitioners" who urged the supreme court to assert its original jurisdiction, they had, of course, worn the uniforms of "plaintiffs" in the circuit court. They were recast as "petitioners" by the high court. They, along with Mr. Watts, were "plaintiffs" in the district court and they are the "appellants" here. (It's hard to keep the players straight without a score card.)
The case in the Wisconsin Supreme Court proceeded -- though, in the taxpayers' view, not without a bundle of errors. On December 13, 1995, as "petitioners," they tried unsuccessfully to voluntarily dismiss their case. Nevertheless, judgment was entered against them on April 9, 1996. But the taxpayers wanted to take the suit to extra innings. On the same day they tried to dismiss their state court action, they found a new playing field in the federal courthouse in Milwaukee, where they filed a second suit challenging the constitutionality of the Stadium Act. On October 15, 1996, the district court dismissed the federal action on the basis that it was barred by the doctrine of res judicata. This appeal followed.
The case before the federal district judge was not, by any stretch of the imagination, a whole new ball game. It was really the same case as the one litigated -- or the one which could have been litigated -- before the Wisconsin Supreme Court. It was litigated by the same parties or those in privity with them. No one argues that Mr. Watts, who was only a plaintiff in the federal suit, was not in privity with the petitioners in the case before the supreme court. Neither, presumably, would the taxpayers argue with the principle that federal courts give the same effect to state court judgments as do the courts of the rendering state. 28 U.S.C. sec. 1738. Allen v. McCurry, 449 U.S. 90 (1980).
So why do they allege that it was error to dismiss the suit in the district court? Abandoning some of the arguments they raised in the district court, they now rely solely on the principle that res judicata does not apply if the first decision was rendered in violation of due process. Lolling v. Patterson, 966 F.2d 230 (7th Cir. 1992). The principle is sound; their application of it is not.
Taxpayers argue that their due process rights were violated by what they call an "ex post facto briefing page limit"; by the supreme court's not waiving the 50-page limit; by a 3-day period being set within which to file a reply brief; and by the court's disposing of some claims by saying "any of the Libertarian Party's challenges not discussed with specificity can be deemed to lack sufficient merit to warrant individual attention." Libertarian Party v. State, 199 Wis. 2d 790, 800 (1996). In addition, they claim that the Wisconsin Supreme Court lost personal jurisdiction over them when they attempted to voluntarily dismiss the original action. These arguments can be handled like a can of corn.
As a general matter, the Wisconsin Supreme Court makes the rules which it is under attack here for either violating or enforcing. The Wisconsin Rules of Appellate Procedure, found in Chapter 809 of the Wisconsin Statutes, were promulgated by a "Supreme Court Order of February 17, 1975." And it is incontrovertible that the Wisconsin Supreme Court is the final authority on questions of Wisconsin state law, both procedural and substantive. As the respondents correctly put it, "The Wisconsin Supreme Court cannot be 'wrong' about such questions." Furthermore, as to questions of state law, what the Wisconsin Supreme Court says is binding on federal courts. 28 U.S.C. sec. 1652. The taxpayers do not seem to directly attack these principles but they nevertheless argue that the court misapplied various rules and made up others, all in violation of their due process rights. And, as we said, the argument is that if due process was violated, the decision that followed cannot enjoy preclusive effect in federal court.
Specifically, the first alleged violation is the enforcement of the 50-page limit on briefs. What happened was that on December 11, 1995, the day their brief was due, the taxpayers submitted a 111-page brief. The Wisconsin Supreme Court promptly (and we think understandably and wisely) rejected it and ordered a brief within the 50-page limit to be filed by December 15. It was at this point, incidentally, that the taxpayers tried to voluntarily dismiss their case. That failing, they filed a 50-page brief, which is full of parenthetical statements, such as "full argument deleted due to page limits." The problem they had with the requirement for page limits is that they said it applied only to appeals, not to cases under the court's original jurisdiction. Relying on an unlikely authority for a minor point of Wisconsin law -- Blackstone -- they argue that the page limit was "ex post facto."
The short answer is that the Wisconsin Supreme Court thought otherwise and, Blackstone notwithstanding, the court makes the call. The decision is well within a reasonable interpretation of Chapter 809. Section 809.19(8) provides that briefs in the Wisconsin Court of ...