MHS Indian mascot heads to appeal - again

Posted: Feb. 5, 2013

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Mukwonago residents James Schoolcraft and Craig Vertz appealed a Wisconsin Court of Appeals decision to the Wisconsin Supreme Court on Friday in a continuing effort to challenge the constitutionality of a Wisconsin law barring some Indian nicknames and logos.

The petition filed by Attorney Sam Hall, from Crivello Carlson, claims that the Court of Appeals decision violates the supremacy clause in the United States Constitution. The petition argues that local taxpayers have standing to sue based on United States Supreme Court rulings. The petition also maintains that the law and its application violate taxpayers' due process and equal protection rights.

"It's a mix of federal and state law, and federal law should trump state law," Hall explained.

Legal wranglings

Waukesha County Circuit Court Judge Donald Hassin Jr. previously ruled that an official from the Wisconsin Department of Public Instruction (DPI) had violated the constitutional rights of taxpayers in the Mukwonago Area School District. The circuit ruling stated that the DPI official who held the hearing, Paul Sherman, testified that he understood that the DPI supported the elimination of all Indian nicknames, regardless of how they were used in individual schools, and that Sherman "could see" how people might have concerns with impropriety because he was responsible for issuing the decision, and he was employed by the DPI.

The appeal points to at least one other pending lawsuit where Berlin High School challenged the constitutionality of the mascot law, and Berlin High School sits in a holding pattern awaiting the outcome of the Mukwonago case, Hall said.

On appeal, the Wisconsin Court of Appeals overturned the decision and ruled that Vertz and Schoolcraft did not have standing to bring the constitutional claims. The court held that Schoolcraft and Vertz should have attempted to become parties to the hearing by filing a request with Sherman or should have sought judicial review under state law rather than filing their federal civil rights lawsuit. Since the court ruled that Schoolcraft and Vertz did not have standing, the court did not consider whether the law violated the constitution.

While the attorney general has 15 days to oppose the appeal, Hall said the state Supreme Court has no deadline for addressing the issue. Hall did not want to speculate on the chances of the issue being picked up by the Supreme Court, but said he considered the chances are "better than average."

The district continues to wait, hoping for movement on legislation repealing the law. Superintendent Paul Strobel said legislators have told him the issue is not a priority for them.