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A “scent of lawlessness” in the Wisconsin Supreme Court?

On January 11th, SCOW granted petitions for review in 3 more cases: State v. Finley, 2014AP2488-CR, Wisconsin Carry, Inc. City of Madison, 2015AP146, and Regency West Apartments LLC v. City of Racine, 2014AP2947. What all 3 grant orders have in common is a harsh, 18-paragraph concurrence/dissent by Justice Abrahamson. She writes: “The efforts of one member of the court to unilaterally issue the grant orders threatened to contravene the court’s internal procedures and raises the scent of lawlessness in this court.” ¶1 (emphasis supplied). See the the grant orders for yourselves.

Justice Abrahamson’s concern is that just 2 months ago SCOW quietly adopted a new procedure without notice to the court’s commissioners, the Clerk’s office, lawyers, litigants or the public. (Indeed, it doesn’t appear in the online version of SCOW’s operating procedures.) Under the new procedure, if a justice wishes to hold a petition for review that a commissioner has recommended granting, the justice must state in writing why he or she would not approve the grant. Within 5 calendar days all justice are to vote by email to grant the matter, deny the matter, or approve the suggestion in the written proposal. If sufficient votes to grant the matter remain, it shall be granted. Otherwise it shall be discussed in a court conference.

Apparently, a Commissioner recommended granting review in one of the three cases listed above (we aren’t told which one), but no recommendation was made regarding the other two. Complying with the new procedure, Justice Abrahamson emailed her desire to hold the case recommended as a “grant” and explained why she would not approve the Commissioner’s recommendation. Before the 5 days expired and before votes were taken, one member of the court emailed the others that unless a majority agreed with Abrahamson’s request for a hold, she would issue the orders granting review on January 8th. After strenuous objection, a vote was taken for that case. As for the other two cases, Abrahamson requested holds on them, too. Despite the lack of recommendations, the Court issued grant orders for both. Bottom line: One member of the court tried to override SCOW’s internal operating procedures. Thus, Abrahamson concludes with a vow:

I have pledged to continue to discharge my duties on this court as the people of the state have four times elected me to do. The commitment I made to myself nearly 40 years ago and in four successive elections since then remains: Be independent, impartial, and non-partisan, and help the court system improve.  I will continue to implement that commitment whether in the majority or in the dissent. ¶16.

Each justice is only one voice of seven. I will continue to be one. But I will not be a timid voice as I continue to serve the people of Wisconsin. ¶17.

Because the efforts of one member of the court to unilaterally issue the grant orders threatened to contravene the court’s internal operating procedures, I write separately. ¶18.

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