[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.