Open Up the Wisconsin Supreme Court - Just a Little Bit More
Now that open rulemaking conferences have proved successful, it's
time to open the court's decision-making conferences on petitions for
review.
By Steven Levine
Now that the Wisconsin Supreme Court has opened to the public its
conferences on rulemaking petitions, it's time for the court to do the
same when it decides petitions for review in contested cases. Supreme
court conferences should be open to the public when the court meets to
grant or deny petitions to review decisions of the court of appeals. Let
me offer some background and explain the reasons for my proposal.
In 1995 the court announced that it would hold its rulemaking
conferences in public on a one-year trial basis. That trial period ended
in September 1996, and - despite the prediction of dire consequences by
opponents of open rulemaking conferences - the court decided to continue
the practice based on its very favorable experience.
There is nothing about open decision-making that is
inconsistent with good decision-making.
The court's practice is that directly following the hearing on a
proposed rule, the justices move from their places on the bench to the
counsel table in the center of the courtroom, where they discuss,
debate, and decide on the proposed rule. Presenters during the
rulemaking hearing, as well as the press and any other interested
persons, are free to observe the entire process from the spectator
seating area. Aside from this change, rulemaking continues as in the
past.
Even some of those originally opposed to open rulemaking conferences
seem to have mellowed to the idea. Former Chief Justice Roland Day (now
retired) who presided over the first year of open rulemaking
conferences, originally was opposed to the idea. He has since stated
that the process worked "quite well." State Bar officials, who
originally were reluctant to support the idea of open rulemaking
conferences, also like the process. The Bar is one of the most frequent
participants in supreme court rulemaking, and the open conferences
provide it with direct feedback on rules it has proposed. If the court
rejects a Bar rulemaking petition, the Bar can reconsider and perhaps
amend the petition based on justices' comments made during the open
conferences.
Now that experience has shown how beneficial open supreme court
rulemaking conferences can be, it's time to expand on proven success.
Court conferences on whether to grant review of a case decided by the
court of appeals should be open to the public. Here's why.
Decisions on whether to grant a petition for review are the only
supreme court decisions where the court never offers an explanation or
reasoning for its actions. Opening up the court's decision-making
conferences on petitions for review would greatly improve the entire
process - for lawyers, for the public, and for the court itself.
Opening up the court's conference to the public might resolve a host
of unanswered questions as to why the court denied a petition for
review: Which criteria for review did the court believe were not met by
the petition? Did the court feel the record was not sufficiently
developed to merit review? Were the issues involved in the case just
resolved in another case decided by the court, or were they involved in
a case on which review previously had been granted? Was the petition
denied because one or both of the parties had appeared recently before
the court in another case? Why was the party's petition not persuasive
enough - or not illuminating enough - to convince the court that review
should be granted? And how could that petition have been improved?
For the lawyers involved in a case, as well as the legal community
and public in general, opening up these conferences would be a
tremendously educational experience. The votes and comments of
individual justices could prove valuable when the next petition for
review is written, as lawyers learn what issues and elements of a case
lead each member of the court to vote to grant or deny a petition. The
quality of petitions for review could greatly improve as a result of
open conferences.
Open conferences also would improve the appellate process after the
justices vote to grant a petition for review. Under current procedure,
when the court grants a petition for review the parties are given no
indication of which issue or issues were of interest to the justices.
Particularly in a multi-issue case, an open conference would inform the
parties of the issues to which they should pay particular attention.
Open conferences would improve both the brief writing and oral arguments
in the case.
Finally, open conferences would improve the performances of the
justices themselves. Open decision-making promotes better preparation
and discussion. When a judge or lawyer knows that his or her work is
going to be scrutinized, better performance results. As Chief Justice
Shirley Abrahamson once said, "Judges should be judged."
Are there any down sides to open conferences regarding petitions for
supreme court review? Might open conferences distract the justices or
lead to excessive politicizing of the judicial process? My own
experience says no. In 23 years as a lawyer for the state's Public
Service Commission, I have seen every utility rate case, every
construction case - virtually every case about anything - decided by the
commission in public at an open meeting. The commissioners engage in a
reasoned, public discussion of the issues based on the record made at an
administrative hearing. There is no posturing, no politicizing, no
grandstanding. There is nothing about open decision-making
which is inconsistent with good decision-making.
The supreme court did not open its rulemaking conferences until more
than 15 years after the idea was first publicly proposed in 1980, and it
probably will be a long while before open conferences on petitions for
review occur. But they will happen, if the public and the legal
community want them to happen. Supreme court candidates who favor open
conferences can raise the issue during their campaigns, just as the
issue of open rulemaking conferences was raised by some candidates in
the 1980s and 1990s.
Closed meetings and closed records are seldom, if ever, in the
public's interest. The governmental decision-making process - and the
public's confidence in that process - is enhanced when decisions are
made in public. So, let's have the supreme court open its conferences
when it meets to decide petitions for review. Open conferences can and
will happen, if we want them to.
Steven Levine has been an attorney for
the Public Service Commission of Wisconsin since 1975. He has served as
a supreme court law clerk and two-term member of the State Bar Board of
Governors. Groans or applause for this article may be addressed to him
via email.
Wisconsin
Lawyer