My Favorite Opinions, by a Former Justice

Having served on the Wisconsin Supreme Court, I am often asked about which case was my favorite. It is always difficult to answer that question, because I liked many cases for a variety of different reasons. So I thought I would share my experience with three of them. I really enjoyed working on cases that took me into not only interesting research but other cultures. State v. Davids involved a Native American charged with the offense of fishing without a license. The real issue before the court was whether the Stockbridge-Munsee reservation, as its boundaries were defined by the Treaty of 1856, was diminished by federal legislation in 1871 and terminated by federal legislation in 1906, thereby placing the area encompassing Upper Gresham Pond under state jurisdiction and requiring all who fished there to have a valid state fishing license, including Bert Davids, an enrolled member of the Stockbridge-Munsee tribe. That case had me dusting off old treaties and historical writings (actually my law clerk, Kathleen Rinehart, did the dusting off of the books) to better understand the various different types of agreements between the federal government and particular tribes. It became a rewarding history lesson in Indian treaties and the reasons for those agreements. I could not write the opinion without better understanding what was happening in tribal politics at the time. It became a lovely and interesting history lesson in and of itself. The conclusion of the case was that Mr. Davids indeed needed a fishing license for Upper Gresham Pond.

I also liked State v. Miller, which asked the question of whether the Amish could be fined for failing to display the bright orange “slow moving vehicle” sign on their buggies despite the fact that its display was inconsistent with their religious beliefs. What I remember most about that case was that on the day of the oral argument, the Wisconsin Supreme Court hearing room was filled with Amish men with their dark clothing and long beards, listening intently to the arguments about the First Amendment. It was a very different scene than we were used to seeing (lawyers in dark suits, white shirts and red ties).  In writing that opinion, I watched a piece of video evidence which showed a very slow moving buggy going off in the distance at night time with white fluorescent tape on the back. The video seemed to last forever . . . but the tape remained very visible. Understanding how what seemed to be a simple factual case intertwined itself with the First Amendment led to a fascinating exposure to the beliefs of the quiet Amish culture. The Amish prevailed on that case because the tape was a reasonable alternative.

Finally, I want to talk about a case that I often refer to when teaching groups about the work of a supreme court justice and an impartial court. In the last ten years, there is a lot of discussion about the partisan nature of decision-making. Many people assume judges take their agendas to the court and then vote accordingly when the cases come up. I often get asked whether a particular judge is a “liberal judge” or a “conservative judge.”  The case I like to tell them about is State v. Matthew Janssen, which was originally heard in Appleton, Wisconsin. Appleton is a very politically conservative community. Mr. Janssen and his friends stole a number of American flags. He defecated on one of them, leaving a highly offensive note in its place. Well, as you imagine, the community was understandably up in arms about this horrible treatment of the flag. The state charged Mr. Janssen with a violation of the Wisconsin flag desecration statute. The trial judge, courageously and despite much public outcry, held that the statute was unconstitutional. The case was appealed to the Court of Appeals, where three judges affirmed the circuit court’s holding. The case then came to our court.

Justice Jon Wilcox was assigned the case and wrote the unanimous decision. Justice Wilcox, often classified as a “conservative” justice, obviously was personally conflicted in writing the decision. He wrote the unanimous opinion which held that the lower courts correctly concluded that the statute was unconstitutional. What is helpful for teaching purposes is that, a reader can sense Justice Wilcox’s pain  in reaching a decision that was legally correct but morally offensive to him. He wrote:

Having reached this conclusion, we pause to note the extreme difficulty inherent in writing a decision such as this . . . . Our final assessment of Janssen’s behavior is no different from our initial, instinctive reaction to the facts of this case: we are deeply offended. Janssen’s conduct is repugnant and completely devoid of social value. To many, particularly those who have fought for our country, it is a slap in the face. . . . But in the end, to paraphrase Justice Frankfurter, we must take solace in the fact that as members of this court, we are not justified in writing our private notions of policy into the Constitution, no matter how deeply we may cherish them or how mischievous we may deem their regard. . . .

That unpopular decision made me very proud to be a member of that Court. Despite personal feelings, politics, or desires, the justices did what they had been elected to do. They applied the law, despite public opinion. That is what being a judge is all about.

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