Aug. 2, 2017 – The Wisconsin Supreme Court issued 50 decisions in the 2016-17 term, not including attorney discipline and two per curiam decisions. Half (25) of those were 5-2 (or 4-2) decisions, six were 4-3 decisions, and 12 were 7-0 (or 6-0 or 5-0) decisions.
But the numbers, diligently tracked and compiled by Marquette University History Professor Alan Ball at SCOWstats, don’t tell the whole story.
The 12 unanimous decisions mean the court was unanimous in the mandate – whether to affirm or reverse the lower court. The 24 percent unanimity rate is up from 18 percent last year. But that doesn’t mean the justices increasingly agreed. In fact, the supreme court was unanimous on rationale in just one case with all seven justices participating.
In Garza v. American Transmission Co., 2017 WI 35 (April 13, 2017), the seven justices unanimously agreed that a transmission line company had a right to enter private property under an easement, despite a dispute about the easement’s description.
SCOWis: How they Ruled
Check out the Table of Cases on all 50 decisions by topic, how the justices voted, and who filed separate writings.
The cases also include links to summaries posted on WisBar throughout the term, as well as a link to the decision.
Jump to the Table of Cases below
The court was also unanimous in two other cases – Brenner v. National Casualty Company (premises liability) and McKee Family I LLC v. City of Fitchburg (vested rights in developing land) – but not all seven justices participated in those two cases.
In the nine other unanimous cases decided by seven justices, at least one concurrence was filed, and more often than not, two or more concurrences joined by one or more justices. That is, the justices often disagreed, even when they agreed. Does this signal that the justices are not aligned, even in unanimous decisions?
“Not necessarily, as the role and importance of a concurrence can vary,” said Michael B. Brennan, a trial and appellate lawyer at Gass Weber Mullins LLC in Milwaukee. Brennan was a Milwaukee County Circuit Court judge for nine years.
“The concurrence could be for a procedural reason, a substantive one, to comment for purposes of a future case, or for other reasons. Because the Wisconsin Supreme Court’s role is to take the hardest cases, and reasonable people can disagree about such challenging cases, the purpose of the concurrence has to be examined to determine, for example, whether the separate writing is grounded in a differing judicial philosophy, or a more mundane reason such as the importance of a certain fact.”
Agree to Disagree
One case highlights the significance or insignificance (depending on your view) of separate writings. In Operton v. LIRC, 2017 WI 46 (May 4, 2017), the seven justices unanimously ruled that a former Walgreens employee was entitled to unemployment benefits despite making multiple inadvertent errors at work.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
But three concurrences, representing the views of six justices, explored differing rationales for that conclusion, as well as another question on whether the state constitution actually allows courts to grant deference to state agency interpretations of state statutes (three justices suggested that it doesn’t).
One justice noted the agency deference issue, which the court did not decide in Operton, as a “hot button" issue. Are we likely to see the justices address it soon?
“Yes. It is quintessentially the court’s role to explore and resolve these types of questions,” said Brennan, who noted that on June 15, 2017, the court granted review in Wisconsin DWD v. Wisconsin LIRC.
“In the order granting the petition for review, the court directed the parties to brief an additional issue: Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?”
“The court also scheduled the DWD v. LIRC case for oral argument on the same date as the oral argument in another case, Tetra Tech EC, Inc. v. Wisconsin Department of Revenue, in which the parties were instructed to brief the same issue.”
Another case highlighted differing opinions, even when the court was unanimous in the mandate. In State v. Pal, 2017 WI 44 (April 28, 2017), the seven justices unanimously affirmed the two-count conviction in a hit-and-run case that caused two deaths, rejecting the defendant’s claim that he could not be punished twice for the same crime.
But two concurring opinions, representing the views of five justices, debated how to reach that conclusion. Four justices concluded that Pal committed two offenses when he fled the scene since he was fleeing from two victims. Three justices concluded that sentencing on two counts was appropriate because Pal fled two separate accidents.
In total, the justices filed 15 concurring opinions in the 10 unanimous decisions in which seven justices participated in the case. Justice Shirley Abrahamson filed seven of them.
5-2 (or 4-2) Decisions
The media often label judges as “liberal” or “conservative," which connote political views. Judges are not political decisionmakers but they do have different judicial philosophies. That is evident in reviewing the 5-2 decisions.
Half of the court’s decisions (25 cases) were decided by 5-2 votes. Justice Ann Walsh Bradley filed a dissenting opinion in 11 of the 5-2 decisions (14 total dissents), and Justice Shirley Abrahamson joined the dissent in all of them.
Michael B. Brennan
Justice Abrahamson filed a dissenting opinion in 10 of the 5-2 decisions (15 total dissents), and A.W. Bradley joined in all of them. Thus, Abrahamson and A.W. Bradley were the dissenters in 21 of the 25 cases decided by 5-2 votes.
In 15 of those cases, four or five justices joined the majority opinion and Abrahamson-A.W. Bradley dissented, with no concurrences filed. Of those, nine were criminal cases.
Some of these criminal cases highlight one of the clearest dividing lines between judicial philosophies, with the majority siding against a criminal defendant, and the dissent finding a constitutional violation or other error that would require a conviction to be reversed or reconsidered.
For instance, in State v. Nieves, State v. Mattox, and State v. Zamzow, a five-justice majority found no violation of the defendant’s Sixth Amendment right to confront witnesses. The dissent would have reversed the convictions in those cases.
In State v. Kozel and State v. Asboth, a five-justice majority found no violation of the Fourth Amendment right against unreasonable searches seizures, whereas the dissent would have reversed on the ground that a constitutional violation occurred.
Can we conclude that two justices are clearly pushing harder for individual rights in criminal cases? It’s not quite that simple, Brennan says.
“Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit has identified three broad categories of dissents she has written: principle-based (a broad question of law is at stake and she is not willing to compromise), process-based (for institutional reasons, such as guidance to the bench and bar), and accuracy-focused (to ensure facts are properly understood),” Brennan said.
“The dissents in these criminal cases appear to have examples of all three categories. So I would conclude they point to differences between how the majority and dissenting justices determine and interpret the law, and the dissenting justices’ subsequent decisions to write separately.”
Civil Dividing Lines
That same 5-2 split also occurred in four high-profile civil cases: Democratic Party of Wisconsin v. Wisconsin Department of Justice, Voces de la Frontera v. David Clarke Jr., Wisconsin Carry Inc. v. City of Madison, and Milewski v. Town of Dover.
In Democratic Party of Wisconsin, a five-justice majority denied the Democratic Party’s public records request for video recordings held by the Department of Justice. The dissent concluded that the records should be released under the public records law.
In Voces de la Frontera, a five-justice majority ruled that immigration hold requests from federal agencies are exempt from public records law. The dissent said they are not.
In Wisconsin Carry Inc., a five-justice majority ruled that Madison’s transit authority cannot bar concealed-carry license holders from bringing handguns on city buses. The dissent argued that state law did not preempt the transit authority from doing so.
And in Milewski, five justices agreed that a homeowner did not lose a right to challenge a property tax assessment after the homeowner refused an interior inspection. The dissent argued that a challenge is lost if a homeowner refuses the interior inspection.
Can we derive any theme from these civil decisions?
“Due to the particular facts, reasoning, and rulings in each of these civil cases, no one theme is apparent,” Brennan said. “The four opinions do show the various approaches to statutory interpretation employed by individual justices and coalitions of justices, especially with regard to Wisconsin’s Open Records Law.”
Other Dissenters
In four other 5-2 decisions, Justice Annette Ziegler filed a dissent, joined by Justice Michael Gableman. In two others, Justice Rebecca Bradley and Justice Daniel Kelly, in his first term on the court, combined to dissent, each filing an opinion.
For instance, in Seifert v. Balink, M.D., a 5-2 majority ruled that an expert’s testimony was reliable and thus admissible under the Daubert reliability standard. Justice Kelly dissented, joined by R. Bradley, concluding the standard was not satisfied.
In State v. Wilson, a 5-2 majority ruled that a defendant properly served a subpoena on a witness by leaving the subpoena at the witness’s abode. Justice Ziegler dissented, joined by Gableman, concluding the defendant forfeited the right to make that argument.
4-3 Decisions
Only six cases were decided by 4-3 votes, and four of them were civil cases. But the dissenters were not necessarily aligned in their reasoning in dissent. In all of the 4-3 decisions, at least two separate dissents were filed, departing on reasoning. And in all but one of the 4-3 decisions, a concurrence was filed, departing from the majority.
For instance, in Flug v. LIRC, a four-justice majority ruled that a Walmart employee could not get worker’s compensation for a permanent partial disability that resulted from a surgical procedure because the surgery did not treat a work-related injury.
Chief Justice Patience Roggensack dissented, concluding that the employee was entitled to worker’s compensation benefits. Justice A.W. Bradley filed a separate dissent, joined by Abrahamson, concluding LIRC should conduct a new hearing.
In AllEnergy Corporation v. Trempealeau County Environment & Land Use Committee, a four-justice majority upheld the denial of a conditional use permit for sand fracking.
Justice Kelly filed a dissent, joined by Justices Gableman and R. Bradley, which would have applied a different standard to review the permit application.
Justice Ziegler concurred, joined by Chief Justice Roggensack, but for different reasons than explained in a lead opinion filed by Justice Abrahamson (joined by Justice A.W. Bradley). This wasn’t the only decision with multiple views on the same issue.
In State v. Weber, for instance, four justices agreed that a sheriff’s deputy did not violate the Fourth Amendment when entering a driver’s private garage without a warrant, but only three justices agreed on the rationale. Another three dissented.
When they have differing views like this, with separate writings, how does that impact the state of the law?
“Opinions with multiple views on the same issue can result in fragmented rationales,” Brennan said. “Those, in turn, can present the problem of the scope and effect precedent will have, including whether a given rationale is binding, persuasive, or otherwise. Indeed, too much fragmentation can put pressure on the common law method of adjudication.
“Given numerous opinions in a case, when the next case comes along, advocates who attempt to apply or to distinguish precedent are presented with a true challenge. Many splintered views can mute the effect of a decision (which, of course, may be the intent of the separate writing). Just so, if in future cases certain reasoning wins the day, the separate writing, or inclusion of a certain line of argument, would have been justified.”
6-1 (or 5-1, 4-1) Decisions
Justice Abrahamson was the lone dissenter in four of the seven cases in which only one justice dissented. Justice Ziegler was the lone dissenter in two cases, and Chief Justice Roggensack parted ways with her colleagues in one case, a Fourth Amendment case.
In State v. Blackman, six justices agreed that a motion to suppress evidence from a blood draw, in an OWI case, was properly granted because the driver did not freely and voluntarily provide consent: the police misrepresented the consequences of refusing.
Dissenting, Chief Justice Roggensack concluded the blood draw evidence should be admitted because the officer acted in good faith when informing the driver of the law.
In another high profile case, The Honorable William M. Gabler, Sr. v. Crime Victims Rights Board, five justices agreed that the state legislature violated the separation of powers doctrine in creating a Victim’s Rights Board with power to discipline judges.
Justice Abrahamson said the statutes at issue, when employing well-established principles of statutory construction to interpret them, don’t actually give the Victims' Rights Board the power to discipline judges. Justice A.W. Bradley did not participate.
Final Observations
With the recent additions of Justice Rebecca Bradley (who replaced Justice Patrick Crooks) and Justice Kelly (who replaced Justice David Prosser), the 2016-17 term provided new perspectives and decisions.
More change is soon to come, as Justice Michael Gableman recently announced that he will not seek a second 10-year term. His term ends on July 31, 2018. That seat will be up for grabs in an April 2018 election.
