Wisconsin Interest
Volume 19, No. 2
July, 2010

The median release date for opinions in the mid-1990s was April or May, according to statistics compiled by a lawyer deeply interested in the court’s workings.

Nowadays, it’s June — and the delays seem to be getting worse. The court, in the current term, had released a grand total of only eight opinions on civil and criminal cases by May 1, down from 19 at that point in the previous term.

In the last term, moreover, the court issued only 64 opinions in civil and criminal cases and only 87 total (including attorney discipline cases handled largely by court commissioners), according to court statistics.

As recently as 2004, by comparison, the court resolved a total of 141 cases (including discipline issues) through opinions. The year 2004 was particularly busy, but the court has never issued fewer than 100 opinions in any 12-month period, according to statistics going back to 1990.

The court is simply taking fewer important cases. In calendar years 2001 and 2002, the court accepted around 70 petitions for review of Appeals Court decisions, for instance. In calendar years 2003 and 2004, they accepted more than 100. During the 2008-2009 term, the court granted only 47, according to its annual statistical report. There are many possible statistical measures, but all suggest similar decreases in productivity.

The number of petitions for review of Appeals Court cases filed, in the meantime, has also dropped steadily from more than 1,000 per year in calendar years 2000, 2001 and 2002 to 777 during the 2008-2009 term.

No one claims the justices are lazy. If anything, the justices are fully engaged in the cases they do take — maybe too fully, some suggest. They just don’t seem to be able to let anyone else have the last word.

“I think that many [Supreme Court opinions] have gotten longer — in my opinion way too long — and there is no question that the dissents and the concurring opinions have grown since I have been there,” says former Justice Janine Geske.

Verbosity creates practical problems. Long opinions with lots of dissents or concurrences (and myriad conferences) are time-eaters. Instead of clarifying the law, a long opinion can sprout all sorts of tendrils that muddle the import of the decision — and raise issues in unintended ways.

Lumping all the justices together in this regard would be unfair.

In the Wisconsin Law Journal article, Catherine Rottier, president of the Civil Trial Counsel of Wisconsin, said she was “pleasantly surprised” by the opinions of the newest member, Michael Gableman.

“He was unknown to most of us before joining the court. Whether you agree with the results or not, the opinions were well-crafted and easy to follow,” she added.

Other members of the court, conversely, needed 142 pages of dueling opinions in State v. Allen to essentially state that Gableman — whom Allen contended revealed bias against criminal defendants during his campaign against Louis Butler — could remain on the case. That’s 131 pages more than the Warren Court used to issue its landmark desegregation ruling Brown v. Board of Education.

The Allen opinions were notable mostly for name-calling. But Prosser used the occasion to further lament what the conservative justices seem to see as a liberal offensive to thwart the court’s conservative majority from exercising its judgments.

“The Wisconsin State Public Defender’s office has invited the entire defense bar to file recusal motions against one of the justices in criminal cases,” he wrote in reference to Gableman. “The number and savagery of the motions is unprecedented and amounts to a frontal assault on the court.”

Gableman is, of course, also the subject of a complaint filed by the Judicial Commission over a highly publicized commercial he ran that inaccurately suggested that Butler, when he was a practicing attorney, was responsible for the release of a defendant who went on to molest a child — a complaint that Gableman’s fellow justices must rule on.

The court is not merely divided on recusal issues or, perhaps, the fate of Michael Gableman, however.

“This is a deeply divided court, at a very philosophical level concerning how a state supreme court should function,” wrote Roggensack in that same Allen case.

The remark, it appears, was a less-than-subtle dig at Abrahamson. How a court operates is primarily a reflection of the chief justice, who controls a lot of the little stuff like scheduling and the length of conferences, and administrative minutia like who gets invited where.

It is the chief — who did not respond to interview requests for this story — who also sets much of the tone both administratively and in deliberations, those who have worked inside the court say.

Conservatives who have worked with Abrahamson concede she is smart, even brilliant. But their criticisms go beyond the age-old conservative lament that liberal jurists are too willing to discard legal precedent in search of end results they personally favor.

Bablitch, himself far from conservative, points to a long history of conflicts. Way back in the mid-1980s, the Milwaukee Journal quoted an unnamed justice as saying Abrahamson gave colleagues the finger in conference and ridiculed their opinions in her dissents. Long before Abrahamson was trading barbs with Prosser and Roggensack, she was locked in a public battle with Justice Roland B. Day. In 1999, four justices, including Bablitch, tried to convince voters to oust her — and failed. Abrahamson, who’s won four statewide races including an easy reelection in 2009, has been a durable voter favorite through it all.

Still, there has been consistent criticism of her management style. One lawyer who has worked in the court calls her style “toxic” and compared dealing with her to chewing tinfoil. In short, Abrahamson may be brilliant, but her critics say she doesn’t countenance other perspectives or much care about consensus or conciliation. She doesn’t look to the past, or precedent, so much as the future and opportunity, it is suggested.

The same lawyer remembers Abrahamson, more than once, gently ribbing a more conservative justice about something she didn’t agree with, saying something akin to, “Once you leave, don’t count on that one being around.”

She would say it like a joke, he said. Only it never much seemed like one.
Others on the court are not immune from criticism, and conservatives who are critical of Abrahamson can, of course, have agendas of their own. But such criticism has never been strictly ideological. Bablitch, after all, one of the four who publicly opposed her 11 years ago, was in some ways a legal soul mate.

A “good deal” of the responsibility for the acrimony, says the man who was a Democratic Senate Majority leader before he joined the court, “goes to her.”
Not everyone, to be sure, is critical of the court or its individual members. Chief Appeals Court Judge Richard Brown says, for example, that the cases the Supreme Court is reviewing are important ones.

“From my observation, it appears that, while there are a few exceptions, the Supreme Court is taking only those cases that have the potential for marking the trend of the law in Wisconsin — a law-declaring function. I don’t consider that to be a bad thing. I think it’s a good thing,” he says.

Some lawyers and judges, moreover, are not convinced that the court’s diminished caseload is necessarily a bad thing. Others, though, wonder openly what important legal issues are being ignored.

U.S. Supreme Court Justice John Roberts famously asserted that a judge’s job is to call balls and strikes. The truth is that judges also decide which pitches can even be thrown. On April 30, 2010, for instance, the Wisconsin Supreme Court announced it had accepted one new case. That very same day, the justices also denied review of 57 others — including one known as S.C. Johnson v. Morris, a case in which the Racine-based consumer-products maker successfully sued the defendants for taking part in a civil conspiracy to overcharge for transportation services.

Franklyn Gimbel, a former state bar president who represented one of the defendants on appeal, says he was “devastated” by the Supreme Court’s decision not to consider important Fifth Amendment and evidentiary issues at stake.

“All I know is I have been practicing law for five-oh — 50 — years, and if there was ever a case with extraordinary issues that should have been reviewed by the Supreme Court it was this one,” he says.

“I am concerned,” he adds, “that the internal strife may have played a role in the denial of the review of this case.”

Asked to elaborate, he says that Abrahamson and Bradley “are people, I have at least heard on the street, who are segregated” on the court. The liberal justices both indicated they wanted to take the case, but did not have the third vote they needed.

That sort of public dissent on denial of petitions — once rare — has in recent years become common. Abrahamson, in this term alone, had by May 1 publicly indicated that she wanted to take 33 different cases that were denied. When the balance of power was different in the 2007-2008 term, it was the conservative Roggensack who publicly dissented 28 times on denials of petitions.

Among the justices there are fundamental differences of opinion, it is clear, even regarding which cases to accept.

The trends are not abating. By the end of April, the last month for which statistics were available, the court had accepted roughly the same number of cases as last year but appeared to be delaying the substantive ones — the civil and criminal matters — for release until the very end of the term.

Meanwhile, the number of petitions filed for review of Appeals Court decisions by May 1 was down 6% compared to the prior term.

There could be a variety of reasons for that drop, everything from the increasing cost of litigation, to fewer appellate court decisions due to a rise in mediation, to better-reasoned decisions at the Appeals Court level that litigants are willing to accept.

Bablitch, though, raises another reason. “It is also possible that the acrimony on the court is causing the lawyers to give a second thought to whether they want to go up there and roll the dice,” he says.

Whatever the reason for the seeming loss of faith in the court, if Wisconsinites fear that justice is subject to politics and to personal grudges, they will turn their backs on it. That is why the court, while it should never pander to public opinion, is right to worry about it.

“I am not bashing Abrahamson,” says Pokrass, “but I think the chief is the one in an institutional way who has to be a conciliator and leader and keep the acrimony to a minimum.”

 

Mike Nichols is a senior fellow at the Wisconsin Policy Research Institute.

 

* title corrected from the published version

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