Who Cares If No One Cares About the Wisconsin Supreme Court?

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On the website of the Wisconsin Policy Research Institute (WPRI), former Journal Sentinel columnist Mike Nichols asks: “Does anyone still care about the [Wisconsin] Supreme Court?”

He believes the answer is not really, and his evidence for this position is that the number of petitions for review of Court of Appeals decisions has dropped by about thirty percent since 2000. He acknowledges that several explanations for this drop are possible, but says the “precipitous” drop in the last several years “lends credence to the possibility, as former Justice William Bablitch hypothesized in an interview with me earlier this year, ‘that the acrimony on the court’” is to blame. According to Nichols, “This was not the attitude ten years ago.”

Actually, as Justice Bablitch ought to know, the acrimony on the court was just this bad (and just as public) ten years ago.  

As I have noted before on this Blog, in the Chief Justice’s 1999 reelection campaign, three sitting justices endorsed her opponent, as did the spouse of a fourth justice. Two justices considered resigning, and the Chief Justice threatened to force a constitutional show-down to vindicate her interpretation of the powers of her office. Then-Dean Eisenberg and future dean Kearney provide a very good overview of the “heightening hostility on the court” during that period in this Marquette Law Review article. In short, tensions were just as high on the court in 2000 as they are today, so the decreasing number of petitions for review from 2000 to today should not be taken as proof for Justice Bablitch’s thesis.

Additionally, we should recall that approximately half of all petitions for review are filed in criminal cases. I cannot go back on the court’s website before the 2006-07 term to see how this number has changed since 2000, but I would guess that criminal defense lawyers recognize that the court’s current majority is not favorably disposed to the creative or aggressive interpretations that have held sway in the past, and thus they may not seek review of Court of Appeals determinations as often.

Nichols’ next point is that the court is deciding fewer cases – 98 this term (including lawyer discipline cases), compared to 158 in 2005. “This court is among the least productive in decades.” What is not clear is that this is at all a bad thing – in fact, it may be a very good thing. If a majority of the court is interested in making social policy for the entire state of Wisconsin, then it needs to take a lot of cases to issue its edicts to govern various areas of life. If, on the other hand, the majority of the court is composed of humble jurists who have a different view of the judicial role, then they may take a lot fewer cases because they are not looking for opportunities to make law. This has been an oft-noted analysis of Chief Justice Roberts on the U.S. Supreme Court – see, e.g., TIME (“This trend — a steady shrinking of the judicial role in public policy and a handing over of issues to the states — is consistent with Roberts’ conservative philosophy.” and “His speeches on the judicial role suggest a man more interested in the steady retreat of the court from public policy . . . .”) and the Wall Street Journal (“the advent of the Roberts Court may mark a diminished role for a federal judiciary, whether adjudicating society’s most divisive issues or overseeing the everyday machinery of government.”).

Plus, just as the conservatives may not vote to grant review in a lot of cases because they do not want to use cases to make policy, so too the liberals will not vote to grant review in a lot of cases because they know that the court’s majority is currently held by their ideological foes (as opposed to the Justice Butler days, when the liberals wanted to grant a lot of petitions for review so they could decide a lot of issues).

Moreover, the court spends a lot of time currently in open administrative conference engaged in rule-making. Previously much of this work was delegated to the Judicial Council and the court’s commissioners, but more recently the heavy lifting has been done by the court itself. The justices only have so many hours in a day, and more and more of them are being taken up with rule-making.

Next, Nichols’ criticizes the court’s work product, both its timeliness and quality. He states that the court’s members have been “pulling the equivalent of a judicial all-nighter,” and attorneys agree that they “could write much better opinions.” I’d be interested to see if Nichols or his anonymous attorney sources have any specific examples of badly written or reasoned opinions. If some of the opinions are badly written, that is likely an issue that pre-dates the arrival of the court’s newer members. Earlier this month, Nichols praised Justice Gableman for writing “the sort of cogent, straightforward opinion he is starting to become known for.”

As for the timeliness of the opinions, criticism should start with the person in charge of the Court’s calendar – the Chief Justice. This may be a flaw in Wisconsin’s constitutional design for the judiciary, which makes the most senior justice the chief justice (Article VII, §4 ¶(2)). In other states (for instance, our neighbors across the lake in Michigan), the chief justice is elected by the members of the court, ensuring that the person has the confidence of a majority of justices. Perhaps Wisconsin should acknowledge that, even in the best of times, justices may hold differing judicial philosophies, and that the chief justice should have the support of at least a majority of the court’s members.

Let me close my commentary on Nichols’ op-ed by quoting Justice David Prosser’s concurrence in Donohoo (¶63, 2008): “A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections.” In the same way, the court will be the center of tremendous attention in the press, blogs, and elections if it is making policy and changing law. If, however, it is hearing fewer cases, and deciding them on narrower grounds, then it is a good thing that the court is receding to its proper place as “the least dangerous branch.”

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9 Responses to “Who Cares If No One Cares About the Wisconsin Supreme Court?”

  1. Andrew Golden Says:

    So let’s just be clear here, Dan. You don’t have a problem when the court accepts petitions and decides issues that you favor, but when they make decisions you oppose, it’s “making social policy”? And when the “liberals”, as you put it, don’t choose petitions for review, they’re “clogging the court” (as you have implied in past posts here), but when “conservatives” do it it’s a case of their being “humble jurists”?

    Judicial activism is judicial activism regardless of what political ideology it espouses. The U.S. Supreme Court was just as activist when it ruled on Dred Scott and Plessy as it was when it ruled on Roe and Kelo. Suggesting that the decline in taking petitions is somehow tied to the fact that a conservative majority rules the bench is ridiculous, seeing as how that would require a conclusion that the conservative approach to the judiciary is to never consider any appeals, which I doubt the conservatives on the court would agree with you on.

    Furthermore, as a criminal defense attorney, I’m particularly offended by both your characterization of the past criminal law decisions from the Wisconsin Supreme Court as “creative or aggressive interpretations” and your assumption that a conservative majority affects what petitions get filed to the court. If I ever declined to file a petition because of the makeup of the court, not only would my boss have my head on a silver platter, but the OLR would likely yank my license so fast I wouldn’t know what hit me. If you want to argue that the same number are being filed but the court is accepting less of them, I could see that. But your argument as it stands now is an affront to the numerous SPD and private bar attorneys who file petitions to the court every day because it’s the right thing to do for their case, not based on who’s occupying the bench.

    I don’t expect to agree with your opinions, Dan, but do you think that maybe you’d consider writing your pieces in such a way where you don’t actually put down the areas of law you don’t practice? If you’ve never litigated a criminal case, you can’t really speak to what a defense attorney would do for his or her client.

  2. Tom Kamenick Says:

    Good post, Dan.
    I wanted to add some statistics to back up your criticism of the chief justice as responsible for the decline in timeliness of the release of court opinions. It’s pretty easy to chart the release of opinions using the court’s own website and other tools, and I’ve done that going back twenty years from this past term.
    Shirley Abrahamson became chief justice in 1996, and the court’s productivity took a sharp decline immediately thereafter and has been worsening ever since. First, 1996 was the first term in which opinions were released in July. The number of July opinions has increased steadily over the past 14 terms, both in raw numbers and as a percentage of total opinions. This past term almost 60% of all opinions were released in July. Looking at the number of cases released in the last two months of the term – June and July – is even more striking. In 1995-96, 28% of opinions were released in the last two months; in 2009-10, 78% of them were.
    Second, “early” cases have decreased as quickly as “late” ones have increased. In the early 1990’s, it was common for a few opinions to be released in October, and the percentages of opinions released in the first calendar year of the term reached 20%. After Shirley Abrahamson became chief justice, October opinions quickly vanished, followed a few years later by November opinions. This past term, only a single opinion was released in the early part of the term, and for the past three terms the percentage of early opinions has never exceeded 5%.
    Third, tracking the median release date of opinions shows a precipitous decline as well. In the six terms preceding Abrahamson’s ascendance, median release dates ranged between April 10th and May 25th, with most of the terms having median release dates in April. After Abrahamson became chief, that number shot up four years in a row, and has never been earlier than June 3rd since 1997-98. In this past term, the median release date was July 8th, almost three months later than the median release date the term before Abrahamson became chief.
    As you noted, the court is hearing significantly fewer cases now than it did in the past. That number peaked in 2000-01 with 92 opinions released (not including OLR cases), and has declined every year since but one, with the last two terms producing fewer than 60 opinions.

    Although the drop in number of cases may have any number of causes, it provides an interesting backdrop for the rapid decline in timeliness. If the court is issuing significantly fewer opinions each term, shouldn’t the court be able to get opinions published faster?

  3. Tom Kamenick Says:

    Andrew, I think it’s very naive to believe that the makeup of various courts doesn’t affect litigants’ appellate strategy, including whether or not to appeal decisions and what portions of decisions to appeal. Judge-shopping is prevalent, and judge-shopping is judge-shopping regardless of whether the decision is based on which single judge is presiding or which majority makes up a multi-judge court.

    You raise the idea that it could be malpractice to not appeal because of the makeup of an appellate court. I strongly disagree; I think it could be malpractice to fail to take into account how the makeup of the appellate court could change the result. The higher court may come down with a result worse for your client in a more precedential opinion.

  4. Tom, thanks for your comment on the court’s efficiency. Though I think there are good reasons to support changing over the chief justiceship to a majority model, your statistics suggest that this chief justice is simply a bad administrator on this count, whether or not her ideological allies hold a majority of the court’s seats.

    Andrew, I think I was pretty clear in my post that one consequence of a conservative judicial philosophy, which does not seek to make policy for the state from the bench, is that conservative jurists could vote to grant fewer petitions for review. This is one possible explanation for Nichols’ observation that the number of petitions granted is down in recent years.

    Second, I think I am on pretty firm ground saying that the court for a few years was much more open to constitutional arguments made by criminal defendants than it is today. And while I respect that many defense attorneys do make arguments regardless of who is on the court, I suggest that others may choose not to make those arguments knowing that the court will not be receptive to them. That may be because, as Tom says, they could end up with a worse precedent with this court. It could also be because they do not want to bill a client for a lot of hours preparing an appeal with little chance of success.

  5. I always am puzzled at how justices who erode constitutional rights are considered “conservative.” All these 5-2 decisions where the court sanctions and makes up excuses for government misconduct and failure to follow the law are radical, not conservative. How many exceptions to the 4th Amendment warrant requirement are there these days? 25, 30, 35? I see no exceptions in the text nor the implication that exceptions can created by judges. The court is relevant; it spends too much time on petitions for rule changes and lawyer discipline.

  6. Daniel, my personal view is that, at least in criminal cases, it is unlikely that the makeup of the court is a major consideration in the decision whether to file a petition for review, although it should influence how the petition is written.

    Deciding whether to file a petition for review on the original direct appeal (the 809.30 appeal) in a criminal case is very different than deciding whether to file a petition for review in a civil case and I doubt that any valid analysis of such decisions is possible without a firm understanding of these differences.

    First, the economics of criminal appeals are generally different than the economics of civil appeals. The large majority of criminal appeals, at least for felony appeals, are not privately paid.

    Second, exhaustion of state remedies for federal habeas purposes requires the filing of a petition for review. A prudent criminal appellate attorney therefore will file a petition for review. Because the guideline for granting review are, in fact, just guidelines, there is rarely a lack of merit that would bar doing so. Moreover, for appointed cases, counsel can and should file a no-merit petition for review if the defendant desires counsel to do so.

    For these reasons, even when the thought that filing a petition may result in bad precedent enters the criminal appellate attorney’s mind, and particularly when the bad precedent might be constitutional (because of the habeas angle), the attorney usually will file a petition for review anyway.

  7. Tom Kamenick Says:

    Tom Paine, the text of the 4th Amendment does not equate “warrantless” with “unreasonable.” I’ll turn your argument around and point out that the 4th Amendment does not forbid warrantless searches and seizures but rather unreasonable searches and seizures. Therefore, judges that equated the two when the text quite clearly implies to distinct categories of searches were operating without constitutional authority, yes?

    I’m also glad to hear you disfavor the suppression remedy too, as that finds no textual support either.

  8. Andrew Golden Says:

    Dan:
    “And while I respect that many defense attorneys do make arguments regardless of who is on the court, I suggest that others may choose not to make those arguments knowing that the court will not be receptive to them. That may be because, as Tom says, they could end up with a worse precedent with this court. It could also be because they do not want to bill a client for a lot of hours preparing an appeal with little chance of success.”

    And my point, Dan, is that you suggest that without any merit to the suggestion. Ellen said it perfectly; civil law approaches are DRAMATICALLY different than criminal law approaches, and you can’t simply argue one size fits all, as you are doing. If you polled the majority of criminal attorneys, you’d find that virtually none of them would ever hesitate to file an appeal because of the makeup of a given court; the political ideology of a judge doesn’t make a legal argument any more or less meritorious. That percentage, by the way, goes down even further if you poll SPD attorneys, and not because it’s state-funded; they tend to have the cases where you have little choice but to appeal, because the alternative is your client sitting in prison for the rest of his life. Now, if the client says, “The cost is too prohibitive, so I don’t want to pursue it”, that’s a totally different story, but I don’t really think that enters into this discussion, because it’s not the lawyer making the call.

    Just for clarification’s sake, Dan, how many criminal cases have you handled? Trial, appellate, whatever. Did you do one of the PD/DA internships? I’m not being flippant; I’m trying to gauge what your criminal background is.

    Tom:
    “Judge-shopping is prevalent, and judge-shopping is judge-shopping regardless of whether the decision is based on which single judge is presiding or which majority makes up a multi-judge court.”

    Really? Because, again, I think you’re not recognizing the distinction between the criminal justice system and the civil justice system, particularly in Wisconsin. Just looking at state-level options for a moment, if my client (we’ll pretend he’s in Waukesha County because I know the district number there!) wants to appeal a case, I need to file it to District II of the Court of Appeals. That’s the only district Waukesha County cases get to go to. And assuming they decide to hear the case and then uphold the lower ruling, it’s not like I have multiple supreme courts I can send it to; there’s just the state supreme court. So I’m a bit confused as to how you presume I, a criminal defense attorney appealing a case, could forum-shop in any way. Where exactly do you see the wiggle room?

    “You raise the idea that it could be malpractice to not appeal because of the makeup of an appellate court. I strongly disagree; I think it could be malpractice to fail to take into account how the makeup of the appellate court could change the result. The higher court may come down with a result worse for your client in a more precedential opinion.”

    Ok. Well, I know you interned for the Supreme Court and all, but can you name me a criminal case in Wisconsin where the court itself replaced the original sentence with a stiffer penalty? I’m not talking about cases where the high court remands it back down to the trial court with instructions to review X, Y, or Z; I’m talking about a specific case where the Supreme Court said “No, we’re upping the penalty.” Because I’m not saying I’m a whiz with case law, but I don’t know of any case where that’s happened.

  9. Lew A Wasserman Says:

    Time, I think, for some Realpolitik. Thirty years ago if a criminal appeals lawyer failed, or decided not to, or whatever, a Petition for Review, no one seemingly cared, including the defendant. That’s all changed. Now virtually all defendants realize that a Petition for Review is required to preserve their “2254” rights, moreover virtually all attorneys in this field know that if they don’t file the PFR they’ll be found ineffective when the defendant files his Knight or similar petition.

    And nowdays, even with the filing of a Petition for Review cases never end; defendants will afterwards file their own 974.06 Motions, and upon affirmance they file an appeal, etc etc., which often includes another Petition for Review. I joke (sorta) with friends that my cases end only one of two ways: “not guilty” or Machner hearings!

    Having said that, its also true that our Supreme Court issues opinions that are much longer and involved than need be – just compare with most 7th Circuit opinions, that are commonly half to 2/3 LESS lengthy, even with national-implication issues. No one wants to read a 54 page opinion. I don’t know that there would be a direct correlation between putting a lid on the length of opinions and being able to issue more of them, and more quickly, but it would be worth considering…

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