{"id":8154,"date":"2009-11-25T01:38:35","date_gmt":"2009-11-25T06:38:35","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=8154"},"modified":"2009-11-25T01:38:35","modified_gmt":"2009-11-25T06:38:35","slug":"memo-to-the-new-justices-thats-not-how-we-do-things-on-the-court","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/11\/memo-to-the-new-justices-thats-not-how-we-do-things-on-the-court\/","title":{"rendered":"Memo To The New Justices: That’s Not How We Do Things On The Court"},"content":{"rendered":"

\"wisconsin-supreme-court\"At last month\u2019s Conference on the Wisconsin Supreme Court<\/a>, the panel discussing the Court\u2019s business law cases during the 2008-2009 term began with an observation and a question.\u00a0 The panel noted that there were three business law cases in which the votes of the Justices split on a 5-2 basis.\u00a0 These cases were Farmer\u2019s Automobile Ins. Assn. v. Union Pacific Ry<\/a><\/em>., 2009 WI 73; Krier v. Vilione<\/a><\/em>, 2009 WI 45; and Star Direct, Inc. v. Dal Pra<\/a><\/em>, 2009 WI 76.\u00a0 The question our panel asked was \u201cIs this 5-2 split just a coincidence, or is something else going on?\u201d<\/p>\n

I cannot speak for my co-panelists, Tom Shriner and Leonard Leverson, and these comments should not be interpreted to reflect their views.\u00a0 However, I have concluded that, taken together, the three dissents filed by Justices Abrahamson and Bradley in the aforementioned cases can be read as an clear admonishment to their two newest colleagues on the Wisconsin Supreme Court.<\/p>\n

\u00a0The message that comes through to me, loud and clear, is one of disapproval of Justices Ziegler and Gableman for failing to adhere to the unwritten standards of professionalism that apply to the highest court in the State.\u00a0 It\u2019s as if these two members of the \u201cold guard\u201d feel it necessary to remind their colleagues that they now sit on a Supreme Court, and that there are certain things that one just doesn\u2019t do as a Supreme Court Justice.\u00a0 That the concerns of the dissenters have arisen in the context of three cases involving business law disputes is nothing more than a coincidence.<\/p>\n

\u00a0There has been much speculation concerning dissension among the seven members of the Wisconsin Supreme Court.\u00a0 Most of the speculation centers on the supposed divide between the \u201cliberal\u201d justices and the \u201cconservative\u201d justices.\u00a0 One result of viewing the conflict through an ideological prism is a natural tendency to circle the wagons around \u201cour guys\u201d and to discount criticisms from the other side.\u00a0 Certainly the dispute involving Justice Gableman\u2019s election campaign, and the veracity of his campaign commercials, has been infected by an ideological bias on both sides.\u00a0 This is an unfortunate portent.\u00a0<\/p>\n

However, I do not read the dissents by Justices Abrahamson and Bradley in these three business law cases as having an ideological basis.\u00a0\u00a0\u00a0 None of the three cases turned on the choice between adopting a liberal or a conservative rule of decision in a particular business law dispute.\u00a0 In fact, none of the dissents strike me as particularly concerned about the specific rule of decision adopted by the majority opinion (a far too common example of the Court\u2019s general lack of interest in corporate and business law in general, in my opinion).\u00a0 I cannot characterize either side in these particular disputes as either \u201cpro-business\u201d or \u201canti-business.\u201d<\/p>\n

Instead, the two dissenters seem to be focused on taking Justice Gableman (author of the Farmer\u2019s Automobile<\/em> and Star Direct<\/em> opinions) and Justice Ziegler (author of the Krier<\/em> opinion) to task for failings of a non-ideological nature.<\/p>\n

\u00a0If I had to summarize the message that Justices Abrahamson and Bradley are sending to their colleagues on the bench, it would be as follows:<\/p>\n

\u00a01. Don\u2019t Be So Quick To Adopt One Party\u2019s Characterization of the Other Party\u2019s Case, Without First Comparing Those Claims To the Record<\/p>\n

\u00a0Justice Ziegler\u2019s opinion in Krier v. Vilione<\/em> characterizes the plaintiff\u2019s claim as essentially seeking damages for two businesses that he owns as a result of an accounting firm\u2019s breach of duty to a third and distinct business owned by someone else.\u00a0 If that were in fact the crux of the plaintiff\u2019s case, it strikes me that the plaintiff would have a difficult time finding a law firm willing to file the compliant, much less obtaining a favorable ruling from the Court of Appeals.<\/p>\n

However, there is nothing in the complaint that can be fairly read to make such an allegation, and the report of plaintiff\u2019s damages expert, which the majority opinion quotes, does not support the majority\u2019s characterization of the plaintiff\u2019s case.\u00a0 The dissent, by Justice Bradley, charges that the majority\u2019s finding that the plaintiff lacks standing is the inevitable result of the majority fundamental misunderstanding the nature of the plaintiff\u2019s claim.\u00a0 It is certainly troubling that, on an appeal of a summary judgment motion, the majority cannot point to any pleading by the plaintiff that describes his own claim in this fashion.<\/p>\n

Given the lack of any citation in the record to support its characterization of plaintiff\u2019s claim, I can only surmise that the majority opinion reflects an overly credulous acceptance of the arguments presented in the defendant\u2019s brief.\u00a0 It is common for the parties in litigation to engage in hyperbole in describing the defects of their opponent\u2019s case, and I would not be surprised if the defendant\u2019s brief is the source of the majority\u2019s description.\u00a0 If that is the case, then the most charitable description of Justice Ziegler\u2019s opinion is that it is guilty of adopting the defendant\u2019s hyperbole wholesale. \u00a0\u00a0\u00a0<\/p>\n

2. Don\u2019t Read Prior Precedent To Decide General Principles of Law Extending Beyond the Scope of The Facts of Those Cases<\/p>\n

One can only hope that an excessive reliance on the arguments of defense counsel is also responsible for the characterization of precedent that one finds in these three opinions.\u00a0 In each case, the majority opinion describes and applies precedent in ways that extend beyond far beyond the facts of those cases.<\/p>\n

\u00a0For example, Justice Gableman\u2019s opinion in the Farmer\u2019s Automobile<\/em> case relies upon Quinn v. New York Fire Insurance Co<\/em>., 22 Wis. 2d 495 (1964).\u00a0 A sentence in Quinn<\/em> that states \u201cThe award, on its face, does not comply with the requirements of the policy\u201d is used by Justice Gableman in Farmer\u2019s Automobile<\/em> to support the assertion that \u201creview of an appraisal award should usually be limited to the face of the award.\u201d\u00a0 The scope of review of the appraisal award was not an issue in the Quinn<\/em> case, primarily because the court in Quinn<\/em> found the appraisal at issue invalid.\u00a0 There may be Wisconsin Supreme Court precedent that speaks to the proper scope of judicial review of a valid appraisal, but Quinn<\/em> is not that case. \u00a0<\/p>\n

\u00a0In the Krier<\/em> case Justice Ziegler\u2019s opinion discusses Jorgensen v. Water Works, Inc<\/em>., 2001 WI App. 135.\u00a0 Jorgensen<\/em> adopted a test for determining whether a specific injury is to the corporation as a whole or whether the injury is to an individual shareholder of the corporation.\u00a0 It held that a direct injury is suffered by the individual shareholder in circumstances where the violation of law inflicts a harm that is not shared by the other shareholders.\u00a0 This test is most significant in the context of a closely held corporation, where one shareholder can use the corporate form to direct benefits to himself at the expense of a single\u00a0remaining shareholder.\u00a0 Justice Ziegler, in Krier<\/em>, states flatly that the embezzlement of corporate funds is always an injury to the corporation, without considering whether, under Jorgensen<\/em>, one shareholder\u2019s embezzlement of \u00a0corporate funds serves to benefit himself while harming the only other remaining shareholder.\u00a0 As Justice Bradley\u2019s dissent points out, this is not a case where all of the shareholders are affected equally by the misappropriation.\u00a0 Justice Ziegler\u2019s opinion seems to abandon the Jorgensen<\/em> approach in favor of a subjective declaration that the only\u00a0person capable of suffering a direct injury in an embezzlement is\u00a0the corporation. \u00a0\u00a0<\/p>\n

(Justice Bradley\u2019s dissent in Krier<\/em> is strangely silent on the majority\u2019s treatment of Citizen\u2019s State Bank v. Timm, Scmidt & Co<\/em>., 113 Wis. 2d 376 (1983).\u00a0 Justice Ziegler\u2019s opinion characterizes Citizen\u2019s State Bank<\/em> as a case that supports accountant liability to third parties only in cases where the plaintiff shows detrimental reliance on information provided by the accountant.\u00a0 In fact, the Citizen\u2019s State Bank<\/em> opinion expressly considered and rejected a rule that would have limited accountant liability to those persons with access to financial information prepared by the accountant, saying that \u201c[t]he Restatement’s statement of limiting liability to certain third parties is too restrictive a statement of policy factors for this Court to adopt.\u201d Citizen\u2019s State Bank<\/em> at 386.\u00a0 Justice Ziegler\u2019s discussion of Citizen\u2019s State Bank<\/em> in the Krier<\/em> case inverts the precedent\u2019s holding.)<\/p>\n

Perhaps the most striking treatment of prior precedent occurs in Justice Gableman\u2019s opinion in Star Direct<\/em>.\u00a0 The issue was whether a covenant not to compete can prohibit the solicitation of former customers, in addition to prohibiting the solicitation of current customers.\u00a0 In the course of his majority opinion, Justice Gableman engages in a lengthy discussion of three prior Wisconsin cases where restrictive covenants included a ban on soliciting former customers.\u00a0 While recognizing that none of these cases had ruled that such provisions were legally enforceable, or had even considered the issue of their legality, Justice Gableman \u00a0notes that the courts considering these cases \u201chave been untroubled\u201d by provisions of this type.<\/p>\n

\u00a0Justice Bradley objects to this entire discussion in her dissent.\u00a0 It is difficult to understand how the failure of the judges to affirmatively state their objection to such provisions in these prior cases should be read to constitute an expression of judicial approval of this type of restrictive covenant.\u00a0 Justice Gableman concedes Justice Bradley\u2019s point that past judicial silence on an issue is not evidence of approval.\u00a0 However, Justice Gableman fails to explain why he raises these cases or what he thinks the silence of the court in these prior cases does prove. \u00a0\u00a0\u00a0\u00a0<\/p>\n

\u00a03. Don\u2019t Raise and Decide Questions of Law That Have Not Been Briefed By the Parties<\/p>\n

\u00a0Finally, in the Krier<\/em> case Justice Bradley objects to Justice Ziegler\u2019s majority opinion on the grounds that it reaches out and decides several issues that were not briefed by the parties.\u00a0 While the parties briefed the question of whether the plaintiffs had standing to assert their claims for injuries traceable to the accountants\u2019 conduct, the majority opinion went beyond the issue of standing to hold\u00a0that, even if standing had been established, public policy would bar any recovery for negligence or breach of fiduciary duty.\u00a0 In addition, the majority opinion determines the appropriate statute of limitations for a breach of fiduciary duty claim and finds the claim to be barred.\u00a0 Other than the standing issue, none of these legal questions were briefed by the parties.<\/p>\n

Thus, the message form Justices Bradley and Abrahamson is clear: \u201cThat\u2019s not how we do things on the Supreme Court.\u201d \u00a0\u00a0<\/p>\n

\u00a0Justices Abrahamson and Bradley seem to believe that their dissents are drawing attention to legitimate and serious defects in the craftsmanship of the judicial opinions at issue.\u00a0 However, one can\u2019t help but wonder whether the targets of their criticisms will merely dismiss those complaints as nothing more than sour grapes from two liberals who came out on the short end of the vote.\u00a0 The risk is that, come re-election time, Wisconsin voters will be tempted to view these types of criticisms as having a purely partisan motivation, and will discount them accordingly. \u00a0\u00a0<\/p>\n

Rick Esenberg has led several posts and comments on this blog that have treated the difficulties inherent in a system that relies upon an elected (as opposed to appointed) judiciary.\u00a0\u00a0 These difficulties include the question of whether it is possible to police the speech of judicial candidates <\/a>and the question of whether large campaign donations by interest groups to judges create due process concerns<\/a>.\u00a0 To this list of difficulties, we can add one more: the infection of judicial elections by partisan politics may frustrate the public\u2019s ability to have an objective discussion about the professionalism and competence of our current Supreme Court Justices.<\/p>\n","protected":false},"excerpt":{"rendered":"

At last month\u2019s Conference on the Wisconsin Supreme Court, the panel discussing the Court\u2019s business law cases during the 2008-2009 term began with an observation and a question.\u00a0 The panel noted that there were three business law cases in which the votes of the Justices split on a 5-2 basis.\u00a0 These cases were Farmer\u2019s Automobile 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