Wisconsin Supreme Court Accepts Six New Cases, Including Issue of Inherent Authority of Wisconsin Appellate Courts to Grant a New Trial in the Interests of Justice

Supreme Court sealOn March 2, the Wisconsin Supreme Court accepted six new cases for review, five criminal cases and one civil case.

The first case, State v. Henley, 2008AP697, presents an interesting issue regarding the authority of the courts of appeal, or the supreme court, to grant a new trial to a criminal defendant in the interests of justice, without regard to the passing of the time for appeal.  As Judges Vergeront, Lundsten, and Bridge explained in their certification of the questions in the case,

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Independence and Accountability in Wisconsin’s Lower Courts

All methods of judicial selection must account for and balance the competing goals of judicial independence and judicial accountability. Judge James Wynn, Jr. and Eli Mazur described judicial independence as an “immunity from extra-legal pressures” and judicial accountability as the judiciary’s “responsiveness to public opinion.” A method of selection cannot treat independence and accountability as having equal importance. Independence — immunity from extra-legal pressures — must come at the expense of accountability — responsiveness to public opinion, a form of extra-legal pressure.

The three primary methods of judicial selection in the United States are appointment (either by the executive or the legislature), election, and merit selection.  Appointment is viewed as the best method for promoting judicial independence.  Election is viewed as the best method for promoting judicial accountability.  And merit selection attempts to split the difference by having the executive make an appointment from a pool of candidates selected by representatives of the public.

When the issue of judicial selection comes up in a public forum, the focus of the discussion is typically on how to select judges to a state’s highest court.  Wisconsin experienced a public debate on the selection of Supreme Court Justices last spring because of the content of the campaigning and the influx of special-interest group spending during the Supreme Court elections of 2007 and 2008.  Judge Diane Sykes summarized the public debate that appeared in Wisconsin’s major newspapers in her speech published in the most recent issue of the Marquette Law Review.

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At Least We’re Not Facing Relegation

We argue around here about the extent to which Wisconsin is a “tax hell” or has a bad business climate. Each side marshals the facts that support its position.  Our tax burden is extremely high, but our spending levels are closer to average.  Part of that is that we tend not to employ users fees.  On the other hand, the spending numbers have to be read in light of our low levels of federal aid and below-average state income and so on.

William Ruger and Jason Sorens at the Mercatus Center at George Mason University have developed indices of personal and economic freedom and compared all 50 states. The economic index is, of course, value driven. They are looking for low taxes and spending, less regulation, and a greater degree of local control over resources. They prefer user fees to taxes.

On this measure, Wisconsin does poorly. It is 42nd in fiscal policy, 35th in overall economic freedom, and 37th in the overall freedom ranking.

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