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Guest Post: Forbush and the Riddle of a Fragmented Court

On Point is very pleased to publish this guest post by Attorney Michael B. Brennan, currently practicing with Gass Weber Mullins LLC, and formerly a Milwaukee County Circuit Court judge. Mr. Brennan offers his thoughts on the fractured decision of the supreme court in State v. Forbush, 2011 WI 25. On Point invites readers to submit comments to this post, in the box below.

As Dean Kearney pointed out in an interesting speech he gave to the Western District of Wisconsin bar association, reprinted in the Spring 2005 Marquette Lawyer magazine, “it is inconsistent with its role as a law-developing court for the Wisconsin Supreme Court frequently to announce that its decisions are limited to the unique facts of the cases in which they are made. . . . More likely, such limitations cannot be announced consistently with basic principles of law, and the suggestion that a decision is limited to the unique facts of the case suggests that I that particular case the Court is interested in reaching a particular result but does not wish to embrace the implications of its decision for other, analogous cases.”  Dean Kearney is making the argument that the Wisconsin Supreme Court “too often—and increasingly often in recent years—seeks to limit the effect of the opinion that it is announcing (or of some precedent) by stating that its decision is (or was) based on something unusual about the case.”

Now the phrase “unique facts” is not used in any of the various Forbush opinions, although in ¶ 141 Justice Crooks characterizes Justice Prosser’s “tactics” as unique to uphold the exclusion of the defendant’s statements.

But I keep coming back to what Forbush may say about the role of the Court.  If the common law manner of the WSC is to choose a case that presents issues which require resolution, and then decide that case, the narrow mandate about which competent attorneys may reasonably disagree has resolved the case for that date.

In that same article Dean Kearney points out CJ Roberts’ quote from a different context:  “a ticket good for this day and train only.”  But fragmented rationales presents a problem for everybody.  Under the common law method, when the next case comes along which differs, one advocate attempts to persuade the court that the difference is material, and that a different result should occur, and the other advocate attempts to persuade the court 1) not to take the case because it is controlled by existing precedent, or 2) if cert. is granted that precedent and the same result controls.  Attempting to do this given the plethora of opinions is a true challenge.  We don’t shy away from hard thinking, but when extremely smart appellate lawyers may differ on what the holding is, that would seem to be a problem!

The publication of opinions and rationale is so much a part of the common law method that the fragmented rationales present a “not-so-good” challenge to that method.  How to teach Forbush to defense attorneys, or to police officers?  Ultimately opinions are based on real facts involving real people, not “legal chess.” Or even more so, how does an advocate arguing the next case—and there will be a next case– before the lower courts, WCA, and WSC attempt to exercise the common law method given the fragmentation of the rationales?  Of course, judges and justices take an oath to uphold the law, and their views of that law is what results in the fragmentation.  But at least one truth from the opinion is that so many splintered views can mute the decision’s effect, and seems, at least in part, to be in tension with the common law method the courts employ.

So that is my recurring thought on an opinion like this.  Fragmented rationales get the “one day ticket,” here for Mr. Forbush.  But the effect of such a decision on the rest of the criminal justice system and the general public seems muted by the opinion’s fragmentation, and such fragmentation is in tension with the common law method which the Court employs.  I’m sure there is a competing argument that it is the very common law method which results in the fragmentation.  But I would reply that there is a reason we don’t routinely see from appellate courts a series of opinions lined up under the same caption with fragmented rationales and with a difficult to discern holding, like here.

{ 2 comments… add one }
  • admin May 26, 2011, 11:19 am

    The problem of a fragmented law-making court, so eloquently described by Michael Brennan, may be with us for a while. What is the practitioner to do? As suggested in the original Forbush post, you’re supposed to find the narrowest point of agreement, but that may be easier said than done, Nichols v. United States, 511 U.S. 738, 745 (1994) (narrowest-ground “test more easily stated than applied”). Just how difficult the task, is illustrated by Johnson v. Fabian, 735 N.W.2d 295, 306-07 (Minn. 2007), which came to a different conclusion from two federal appellate courts on where to locate the narrowest ground of agreement in McKune v. Lile, 536 U.S. 24 (2002). And what about when a “narrowest-ground” majority simply can’t be cobbled together? When the higher court fails to provide “clear guideposts,” the lower court “must resort to [its] own sound judgment, so long as it does not conflict with existing precedent,” Ainsworth v. Stanley, 317 F. 3d 1, 4 (1st Cir. 2002). Not really an elegant solution, not really even a solution at all, is it? Which reinforces Mr. Brennan’s sharp observations.

  • Craig Mastantuono May 26, 2011, 2:35 pm

    The issue in the Forbush case resulted directly from the USSC’s overturning its own precedent in Montejo vs. Louisiana, which reversed Michigan vs. Jackson, 475 US 675 (1985); Michigan vs. Jackson established a clear and pragmatic rule preventing police from initiating interrogations of criminal case defendants who are represented by counsel after the government initiates formal charges. This departure from stare decisis is an example of what Michael Brennan has previously identified as an “objective indicator of judicial activism.” Michael B. Brennan, Are courts becoming too activist?, Journal Sentinel, October 1, 2005 (available at http://www3.jsonline.com/story/index.aspx?id=359831). I agree with that conclusion concerning the Montejo decision and its effect, removing previously established and clear rules for police, prosecutors and defense lawyers. The resulting difficulty, noted by Mr. Brennan above, of what to teach these criminal justice practitioners in the wake of Forbush did not exist prior to the Montejo decision, which expanded governmental authority at the expense of the individual, reversed simple and highly-functional precedent, and moved jurisprudence in this area of law to a new constitutional position. While the fractured plurality in Forbush indeed does not have a clarifying effect on future controversies, the four concurring justices do appear united in their disapproval of the police conduct involved, conduct that is now expressly authorized by Montejo.

    For further analysis, see:


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