Wisconsin Supreme Court Puts Some Teeth Into Opinion Drafting Rules

An unusual thing happened earlier this month at the Wisconsin Supreme Court. Ramon Gonzalez, an inmate, was tried for a fight in the Milwaukee County Jail. To assist the jury in identifying Gonzalez as a participant in the fight, the judge ordered him to show his teeth to the jury. This revealed the dental modifications for which Gonzalez had received the nickname “Platinum.” The single issue on appeal was whether compelling him to show his teeth violated his Fifth Amendment privilege against self-incrimination. The issue was not a difficult one, and the court decided 7-0 that Gonzalez’s rights had not been violated. State v. Gonzalez, 2014 WI 124.

The opinion was unusual because the only separate opinion, by Chief Justice Abrahamson, contained not a single word about the merits of the Gonzalez case. Rather, the Chief Justice described in detail recent changes by the court to its opinion drafting process that have the potential to make the recent “unusual” release of a significant number of opinions within the first five months of the term commonplace. On September 25 of this year, the court adopted a new procedure for opinion drafting.

As the “concurrence” (can a concurrence ignore the case in which it is issued?) and the court’s published Internal Operating Procedures explain, the court’s previous practice for preparing opinions was as follows:

• After oral argument, the court assigned opinions to the justices by drawing numbered poker chips.
• The justice assigned the majority opinion circulated a draft to the other justices.
• This draft opinion was discussed in the conference room by all seven justices. At conference, justices approved opinions, decided to concur or dissent, and revised opinions, until all opinions were satisfactory (in form, at least) to all seven members of the court.
• Each justice had a virtually unfettered right to “hold” an opinion indefinitely, preventing release of the court’s opinion

All that changed in September when the court voted internally to adopt a new procedure. The vote to adopt the procedure was 4 to 3, with Justices Crooks, Roggensack, Ziegler, and Gableman in favor and the Chief Justice and Justices Bradley and Prosser opposed. The written description of the new procedure is clearly a work-in-progress, obviously not drafted for public release, with parenthetical notes regarding describing the problems that the majority was trying to fix. The written procedure also contains gaps to be filled in as the term progresses.

Highlights of the new procedure include:

• A new series of deadlines and flowcharts govern each stage of the opinion writing process and limit the extent to which opinions can be revised.
• Justices will no longer discuss opinions in conference unless a majority of the court affirmatively votes to do so.
• Justices can no longer place an indefinite “hold” on release of the court’s opinion.
• Separate writings in a case may be held for release, after the majority opinion is released to the public.

The Chief Justice observed several problems that, unsurprisingly, were already facing the court. Tracking all the new opinion deadlines is “unwieldy,” and deadlines are ambiguous because the new procedure no longer contemplates the court’s substantially redrafting opinions. The Chief Justice exhorted the court to revise the new procedure to make it what she called more streamlined, flexible, and collegial.

While no opinion in Gonzalez responded to the Chief Justice’s separate opinion, both the parenthetical notes in the written procedure and the court’s recent history of not issuing its work until later and later in the term suggest that, whatever the merits of the previous practice, a majority of the court found the way in which it held up the issuance of the bulk of the court’s work until the end of the term, particularly each justice’s ability to hold up issuance of majority opinions and the accompanying mandates, unacceptable.

Will the new procedure work? Opinions certainly have been released more quickly this year than in recent years: the court’s tenth opinion was released on December 26 (not counting an earlier affirmance by an equally divided vote). Compared to last year, when only two opinions had been released by December 26 (and two-thirds of opinions were not released before July), the court is well ahead of schedule in getting its work out. Whether this pace is sustainable (or actually attributable to the new procedure), only time will tell. Finally, the effect of the new procedure on separate writings is also manifesting itself. In her dissent in Stoker v. Milwaukee County, Justice Bradley wrote that the new procedure prevented her from commenting on a related pending case because she wanted her dissent to Stoker released with the majority opinion. And the Chief Justice’s dissent and “concurrences” in three opinions issued on December 26 (State v. Foster, Kennedy, and Tullberg, 2014 WI 131, 132 & 134, respectively) complained that the new process kept the court from harmonizing its views on warrantless, nonconsensual blood draws. One wonders if the fault doesn’t really lie in the quirky “poker chip” assignment system that led to three such cases, argued on the same day, being assigned to three different justices.

As the term progresses, we will see whether this new pace continues and whether the quality of the court’s opinions improves.