[The following is a guest post from Daniel Suhr ’08, a prior guest alumni contributor to the Blog.]
On June 25th the Wisconsin Supreme Court handed down its decision in Koschkee v. Evers, 2019 WI 76, which is in many ways a rerun of questions raised in Coyne v. Walker, 2016 WI 38. Coyne was, to put it mildly, a jurisprudential mess: “Our mandate resulted from a one-justice lead opinion, a two-justice concurrence, and a one-justice concurrence, all of which agreed only on the outcome of the case” (Koschkee, ¶ 5), plus a principal dissent representing the views of three justices, and a secondary dissent representing the views of only two justices.
Chief Justice Roggensack’s Koschkee majority (which commanded four votes on everything except ¶ 17) briefly discussed the stare decisis weight of Coyne in an early footnote, stating, “When we are asked to overturn one of our prior decisions, lead opinions that have no common legal rationale with their concurrences are troublesome.” (¶ 8, n.5.) They are troublesome, the Court continues, because it is hard to run their rationale through the traditional stare decisis analysis when there is no definitive rationale to analyze.
Justice Bradley’s dissent, by contrast, says the majority “throws the doctrine of stare decisis out the window.” (¶ 62.) To the Court’s argument from the lack of a common rationale in Coyne, she replies, “[T]he split nature of the Coyne opinion is of no import. The mandate of Coyne was clear despite the fractured nature of the opinions. Although the four justices in the majority subscribed to differing rationales, they agreed on the essential conclusion….” (¶ 73.)
In my view, the Chief Justice has the better of the argument. It is blackletter law that when a court fails to achieve a majority opinion for the rationale in a case, the narrowest construction given by a member of the majority supporting the outcome or mandate controls. Panetti v. Quarterman, 551 U.S. 930, 949 (2007) (“When there is no majority opinion, the narrower holding [of the concurrence] controls,” citing Marks v. United States, 430 U.S. 188, 193 (1977)).
Though that statement has great implications for vertical stare decisis (the obligation of lower courts to follow rules of law handed down by higher courts), it tells us nothing about horizontal stare decisis, or the obligation of later-in-time members of the same court to follow that case.
However, it is generally accepted law (if not quite blackletter law) that “if a majority of the court agreed on a decision in the case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect.” 20 Am. Jur. 2d Courts § 159 (1995). See 5 Am. Jur. 2d Appellate Review § 602 (1995) (“[P]lurality decisions of a state supreme court, in which no majority agrees to the reasoning, are not binding under the doctrine of stare decisis; if a majority merely agrees to a particular result, without agreeing as to the grounds for a decision, the parties are bound by the decision but the case provides no binding authority beyond the immediate parties. Such decisions do not overrule prior or inconsistent decisions, and are not authority on any point concurred in by less than a majority.”). Accord J.A.S. v. Bushelman, 342 S.W.3d 850, 853 (Ky. 2011); Rowland v. Washtenaw Cty. Rd. Comm’n, 731 N.W.2d 41, 47 (Mich. 2007); In re Adoption of Erin G., 140 P.3d 886, 890 (Alaska 2006); Mercury Indem. Co. v. Kim, 830 N.E.2d 603, 612 n.3 (Ill. App. 2005); Robinson v. Century Pers., 678 N.E.2d 1268, 1270 n.2 (Ind. Ct. App. 1997); Chadwick v. Pub. Serv. Co., 731 P.2d 968, 970 (N.M. App. 1986). See Comment, Supreme Court No-Clear-Majority Decisions, A Study in Stare Decisis, 24 U. Chi. L. Rev. 99 (1956) (citing, inter alia, Chief Justice John Marshall in New York v. Miln, 8 Pet. (U.S.) 118, 121 (1834)).
This makes sense as a matter of horizontal stare decisis. Later-in-time justices are not absolutely bound by even the majority opinions of their predecessors. How much less so the authority of various opinions that all are in a majority for the mandate but disagree on a rationale. Coyne is actually a good example of where the rationale set forth in the principal dissent commanded the support of more justices than any of the opinions in the majority.
If the Court really wants to deal seriously with the weight of its opinions, it should end the canard of a “lead” opinion drawn by random lot, and instead place first the opinion which commands the most votes. Daniel R. Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969, 992 (2017) (citing Joseph D. Kearney, The Wisconsin Supreme Court, Can We Help?, Marq. Law., at 48 (Fall 2015)). It should adopt the U.S. Supreme Court’s style of specifying the “opinion of the Court” at the top and demarcating when justices drop off from particular sections, such that there is no need for concurrences such as Justice Kelly’s today (which consisted of a single sentence disclaiming any agreement with a single paragraph of the majority). And in cases where no opinion commands a majority, like Coyne, lower courts should follow the rule of Marks, and later-in-time justices should only take the previous opinions for their persuasive value.
[Daniel Suhr is co-author of the recently published The Past and the Present: Stare Decisis in Wisconsin Law, 102 Marq. L. Rev. 839 (2019) (with Kevin LeRoy). He is also an attorney with a public-interest law firm and a senior adviser to the campaign of Justice Daniel Kelly, though he did not write this post in either of those capacities.]