WISCONSIN BLUE BOOK 1985-1986


    Next, if a subpoena is challenged, the criminal defendant must show a
reasonable probability
 that the subpoenaed witness has relevant testimony to give which will be
favorable to the crimi-
 nal defendant's case. Additionally, the criminal defendant must investigate
other sources for the
 type of information he or she seeks and show that no reasonable, but less
intrusive, sources to get
 the information exist.
    Once the criminal defendant meets the described requirements, a trial
court should require an
 in camera hearing (a session before the judge but closed to the public and
the other parties). The
 reporter must disclose the confidential sources to the judge. Before the
judge informs the crimi-
 nal defendant and the state, the judge must make a new determination that
the sources can
 provide relevant material favorable to the defendant, and determine that
the evidence is neces-
 sary for the defense. If the criteria are met, the judge should require
disclosure of the sources to
 the defendant and the state.
   In relating the facts of the Green Bay Newspaper case to the described
procedure, the reporters
 had established their right to the qualified privilege. They were journalists
and had promised
 their sources confidentiality. The criminal defendants, however, had not
made a sufficient show-
 ing that the reporters' sources might be favorable to the defense. The contempt
order was re-
 versed and the Circuit Court was directed to quash the subpoenas.


 Legislative Procedure - Separation of Powers
   In State ex rel. La Follette v. Stitt, 114 Wis. 2d 358 (1983), the Wisconsin
Attorney General
 brought an original action in the Supreme Court to determine whether the
issuance of certain
 operating notes, pursuant to 1983 Wisconsin Act 3, constituted an unconstitutional
creation of a
 public debt. One of the issues in the case was whether the Legislature was
required to comply
 with procedures which the Legislature itself had enacted.
   The respondents in Stitt argued that neither the Senate nor the Assembly
had referred the bill
 to the Joint Committee on Debt Management, as required by Section 13.49
of the statutes. The
 respondents felt that this failure to comply with the proper procedure invalidated
1983 Wiscon-
 sin Act 3.
   The right of the judiciary to review legislative acts has been recognized
since Marbury v. Madi-
son, 5 U.S. (1 Cranch) 137, 2L.Ed. 60 (1803). In Stitt, the Supreme Court
noted the important
considerations present whenever a court reviews matters within the legislature's
control and
discretion:
       "[C]ourts generally consider that the legislature's adherence
to the rules or statutes
     prescribing procedure is a matter entirely within legislative control
and discretion, not
     subject to judicial review unless the legislative procedure is mandated
by the constitu-
     tion." (page 362, citation omitted)
Under the concept of separation of powers, the courts are reluctant to become
involved in
"purely legislative concerns." If a procedural rule is not constitutionally
required, the Supreme
Court will view the legislature's failure to follow its own rule as "an
implied adlhoc repeal of such
rules."
  The respondents had noted one Wisconsin case where the Supreme Court had
deviated from
this general rule. The Supreme Court in Stitt determined that the earlier
case had improperly
deviated from the general principle and was unnecessary to the holding in
that case. The Court
expressly disavowed the implication that, absent a constitutional basis,
it would invalidate legis-
lation because the Legislature violated a procedural statutory provision
in enacting legislation.
  As the Court found no constitutional basis for the referral procedure,
the Court therefore
declined to determine if the Legislature improperly failed to refer the legislation
to the Joint
Committee on Debt Management. The opinion also went on to examine public
debt and delega-
tion of authority questions and held 1983 Wisconsin Act 3 to be constitutional.


School Attendance Law - Void for Vagueness
   Wisconsin has a compulsory school attendance law which requires parents
or others having
control over a child (6 to 18 years of age) to cause the child to attend
public or private school
regularly. Failure to comply with the requirement can result in a fine, imprisonment
or both.


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