Judging Friday’s SCOWIS Decisions

On Friday, the Wisconsin Supreme Court released two opinions that reflect the court’s new jurisprudential direction. Allow me to focus on the opinion with a much greater discussion of jurisprudence. (The other is State v. Wood, a due process challenge to forced administration of medication in a state-administered facility to a person who had been found not guilty of a crime by reason of mental disease or defect.)

In State v. Smith, the Supreme Court upheld the state’s sex offender registration law for crimes which, in the particular instance, did not have an obvious sexual component. Smith had been convicted of false imprisonment of a minor, which is one of the crimes leading to sex offender registration. Smith brought as-applied equal protection and substantive due process challenges because his act of false imprisonment had no sexual motive or activity. 

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Fair Judges or Judge Shopping?

I had a couple of writing deadlines so I’m a bit late to the game on the Wisconsin Supreme Court’s extraordinary decision (or, more accurately, nondecision) in Allen v. State.  The Court was not split on whether Justice Gableman should recuse himself in all criminal cases. No Justice held that he should. Three did not reach the issue and three, essentially, expressed the view that he is not required to do so.

Rather, the principal division was over whether the question of an individual’s Justice recusal could be submitted to the Court as a whole. Chief Justice Abrahamson and Justices Bradley and Crooks wanted more briefing on the issue but it seems fairly evident that they believe that a majority of the justices considering the issue can force a fellow Justice off a case if they believe (or are willing to say) that there is either a statutory or constitutional requirement for that Justice to recuse herself.

Justices Prosser, Roggensack and Ziegler disagreed. They believe that the only issue before the Court is whether the justice at who a recusal motion is directed has given it the proper consideration. They went on to conclude that Justice Gableman had done so and made it clear that they thought Allen’s motion was pretty weak tea.

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Mother and Daughter, Justly Proud

Wisconsin Supreme Court Justice Pat Roggensack and Milwaukee County Circuit Judge Ellen Brostrom are wary of almost all of the labels that people try to put on them and on other justices and judges.

But one label they are proud of is mother and daughter, and that was clear Thursday during an “On the Issues with Mike Gousha” session at the Law School. The two are believed to be the only mother and daughter to serve on the bench at the same time in Wisconsin history, Gousha said.

“You’ve just been an incredible role model for me,” Judge Brostrom told her mother. Justice Roggensack said she never intentionally put her daughter on the path to being a judge, but she agreed she was very pleased when Bostrom narrowly won election in 2009.

When Gousha asked how the two of them react to labels such as “conservative” or “liberal” when it comes to describing judges, Justice Roggensack said, “I think it’s a lazy definition.” The use of labels reflects the high degree of partisanship of the times, especially when it comes to elections. She said labels are useful in negative campaigning, which is the way campaigns “can hit hardest fastest.”

Most cases that come before the state Supreme Court don’t fit on a liberal-conservative axis, she said.

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