The Need for a Marks Rule in Wisconsin

14 November 2018 Wisconsin Appellate Law Blog
Author(s): Philip C. Babler

This article is the fourth and final installment in our series on the Wisconsin Supreme Court’s recently completed 2017-18 term. For previous installments, see herehere, and here.

Last term, the United States Supreme Court was expected to clarify its decision in Marks v. United States, 430 U.S. 188 (1977), which adopted a rule governing the precedential value of 4-1-4 decisions of the Court. Under Marks, the Court adopted the following rule (which had been proposed by three Justices the previous year):

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ”the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .”

Hughes v. United States, ___ S. Ct. ___ (June 4, 2018), which concerned the eligibility of a criminal defendant to receive a sentence reduction after entering a binding plea agreement with a recommended sentence length, seemed to present the opportunity to revisit the Marks rule, because a 4-1-4 split in Freeman v. United States, 564 U.S. 522 (2011), left unclear what rule applied. In Freeman, Justice Sotomayor largely agreed with the four-justice dissent’s rationale, but concurred in the judgment announced by the four-justice plurality for reasons separately stated with which none of the eight other Justices agreed. Though Hughes seemed to give the Court the chance to clarify the application of Marks, ultimately a majority of the Court was able to decide the sentencing issue on the merits, making it unnecessary to revisit Marks.

Hughes got us thinking about the fact that Wisconsin has no Marks rule. And the Wisconsin court in recent years has increasingly been unable to agree on a majority rationale for decisions. Nevertheless, the court continues its practice of issuing so-called “lead opinions.” A lead opinion is the first in the series of opinions published in a given case, but it commands no majority. A couple of the justices have been thinking about this issue, especially since the decision in State v. Lynch, 2016 WI 66 (2016), in which five of the seven agreed that the Court of Appeals ought to be reversed, but no four agreed on a rationale for reversal. In this context, Lynch generated an interesting mandate: “As a result of a divided court, the law remains as the court of appeals has articulated it.

Justices Shirley Abrahamson and Anne Walsh Bradley wrote a joint concurring opinion, which addressed the meaning and the precedential value of a lead opinion. They documented the uptick in lead opinions during the 2015-16 term and explained some confusion created by the name, especially when, as in Lynch, the lead opinion does not even announce the court’s judgment. Since Lynch, Justices Abrahamson and Walsh Bradley have written separately when there is a “lead opinion” and have cited their Lynch discussion to try to clarify the court’s use of the term.

The use of lead opinions continued in the 2017-18 term, though there appear to be fewer of them than in the 2015-16 term that gave rise to the separate joint opinion in Lynch. Nevertheless, any case without a full majority opinion risks causing confusion, because doctrinally only a majority of the court can speak for it authoritatively. For example, in Tetra Tech, which we have written about here and here, a majority of justices agreed to scale back agency deference, but they did not agree why they were doing so. This division led to this footnote:

Justice Rebecca Bradley joins the opinion in toto. Chief Justice Roggensack joins Sections I., II.A.1., II.A.2., II.B., and III. Justice Gableman joins Paragraphs 1-3, Sections I., II. (introduction), II.A. (introduction), II.A.1., II.A.2., II.A.6., II.B., and III., and the mandate, although he does not join Section II.A.6. to the extent that the first sentence of Paragraph 84 implies a holding on constitutional grounds. Therefore, this opinion announces the opinion of the court with respect to Sections I., II.A.1., II.A.2., II.B., and III.

While these clarifying footnotes are helpful at some level (in the sense that a map showing the way through a dense forest could be), a true majority opinion would obviously be far more helpful. The Supreme Court’s most essential function is to act as a law-declaring court. In the absence of either a majority opinion or a Marks-like rule, cases that fail to garner a majority opinion do not fulfill that function.

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