Judge dismisses the declaratory case against President Cleveland

By Ken Luchterhand

The judge in a declaratory case, Gary Funmaker vs Wilfrid Cleveland, has accepted the motion to dismiss the case, therefore not advancing to make a decision on whether Cleveland is a felon or not.
The conclusion was issued in a “Memorandum Decision” on Feb. 15.
Trempealeau County Circuit Court Judge Rian W, Radtke granted Cleveland’s request, basing his decision that the outcome does not have a direct impact on Funmaker and the fact that a decision would not have any teeth without a followup action by the Ho-Chunk Nation.
Funmaker requested a judge to determine whether President Wilfrid Cleveland was a felon based on a Feb. 7, 1972, incident. If it were decided that Cleveland was indeed a felon, he would not be able to serve as Ho-Chunk Nation president.
In Radtke’s decision, the conclusion states, “For the foregoing reasons, the court finds that there are no conditions under which the plaintiff can recover. The Defendant’s motion to dismiss in this matter is granted. Defendant DOJ and Defendant Cleveland may prepare an order consistent with the court’s decision.”
According to the decision, Funmaker filed a declaratory judgment action, asking the court to declare whether or not Cleveland was convicted of a felony or misdemeanor in the referenced criminal matter. Funmaker alleged that such declaration will assist the Ho-Chunk Nation in evaluating and determining Cleveland’s qualifications to run for future office.
The decision states that Cleveland filed a motion to dismiss the declaratory action, joined by the state Department of Justice, on the basis of lack of subject matter jurisdiction, failure to state a claim upon which relief may be granted, lack of standing, and issue preclusion (which means it has already been litigated).
In the analysis portion of the decision, Cleveland argued that the court’s jurisdiction is preempted by federal law, claiming any decision by the state court would be an intrusion into internal and social relations adopted by the Ho-Chunk Nation.
Funmaker countered with “if this court provided the declaratory judgment sought, the Ho-Chunk Nation will remain free to interpret its own constitution and laws as it wishes.”
“The requested relief does not ask the court to apply any decree to the Ho-Chunk Nation law and does not ask the court to impose any decree on the Ho-Chunk Nation,” the written decision states. “While the complaint alleges that a decision in this matter will assist the Ho-Chunk Nation, the Ho-Chunk Nation is not a part of this action. The court finds that the reference of the Ho-Chunk Nation laws in the complaint was provided as context to develop an argument for the alleged controversy.”
The decision goes on to state that, for a declaration to be obtained, there must be a justiciable controversy. A controversy is justiciable when (1) A controversy has a claim of someone against another who has an interest in contesting it, (2) The controversy is between persons who interests are adverse, (3) the person seeking relief has a legal interest in the controversy, and (4) the issue must be ripe for judicial determination.
“If all four factors are satisfied, the controversy is justiciable, and it is proper to entertain an action for declaratory judgment,” Radtke wrote.
The declaratory suit was filed by Funmaker against Cleveland and the Wisconsin Department of Justice (DOJ).
“The Wisconsin declaratory judgment statutes do not make any provision for suits against the state, and the Wisconsin Supreme Court had held that declaratory judgments against the state are barred by sovereign immunity. Therefore, any action against the State of Wisconsin in this matter is hereby dismissed on the grounds of sovereign immunity.”
While sovereign immunity bars action against the State of Wisconsin, it does not bar this action against the Department of Justice. The State of Wisconsin and the Department of Justice are not considered as the same entity, so it did not bar the action against the DOJ.
However, the decision statement said that, in the 1972 case of State versus Cleveland, the Jackson County District Attorney and not the DOJ represents the “State.”
The document stated that the first two requirements against the DOJ, (1) A controversy has a claim of someone against another who has an interest in contesting it, (2) The controversy is between persons who interests are adverse, are not met, therefore the court dismissed the action against the DOJ.
“Defendant Cleveland filed a motion to dismiss this matter on the grounds that: The Plaintiff has failed to state a claim upon which relief can be granted, the Plaintiff lacks standing to sue in this matter, and the matter is barred by issue preclusion. The underlying argument by both parties on the defenses of failure to state a claim upon which relief can be granted and lack of standing is whether there is a justiciable controversy.”
Judge Radtke concluded that a declaratory judgment would not terminate the controversy.
“In addition to lack of a justiciable controversy, the court finds that any declaratory judgment in this matter would not terminate the uncertainty or controversy, giving rise to the proceeding. The court may refuse to enter a declaratory judgment in such a case.”
Radtke stated that his verdict alone would not decide the issue.
“… the only way the alleged controversy would be resolved is if the Ho-Chunk Nation government accepts this court’s determination of Defendant Cleveland’s 1972 criminal conviction status.”
No remedy is possible solely from the court that would terminate the controversy.
The court would not address Cleveland’s claim that the issue has already been addressed since the case was dismissed on other grounds.