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Justice Abrahamson says “scent of lawlessness” lingers in SCOW

On December 22, 2016, SCOW issued Regency West Apartments LLC v. City of Racine, 2016 WI 99 concerning a tax appeal. Justice Abrahamson filed a dissent which, among other things, sought to inform litigants and lawyers about a procedure the justices us when deciding petitions for review by email. This is what she wrote:

¶124 On November 16, 2015, the court adopted a procedure governing when a justice may hold for further discussion a petition for review in which a Supreme Court Commissioner recommended granting review.

¶125 The procedure applies when the justices vote on the Wisconsin Supreme Court Commissioners’ recommendations on petitions for review by e-mail.  Most months the court votes on the recommendations in person, in closed conference.  The new email procedure states:
Regarding petitions for review, certifications, petitions to bypass, original actions, petitions for supervisory writ, and petitions for writ of mandamus, prohibition, quo warranto, and habeas corpus, some months are scheduled as mail-in conferences, whereby each justice votes, by e-mail, on the recommendations of each Commissioner.  A justice, who wishes to hold a matter for which a Commissioner has recommended granting review, must submit in writing, with his or her e-mail votes, the specific reason(s) why he or she would not approve the grant as recommended by the Commissioner.  Within 5 calendar days of that writing, all justices shall vote, by e-mail, to grant the matter, deny the matter, or otherwise approve the suggestions in the written proposal.  If sufficient votes to grant the matter remain, the grant order shall issue within two business days.  If the matter no longer has the requisite votes to grant, it shall be discussed in a court conference, but in any event, no later than at the next in-person petition for review conference.

¶126 The new procedure was adopted without any notice to the Supreme Court Commissioners and Clerk of the Supreme Court, let alone the litigants, lawyers, and the public.8

¶127 Although I did not vote in favor of adopting this procedure, I have followed it.  At the very least, the court should follow its adopted procedures.  As I have written before, a scent of lawlessness pervades the court.    [Editor’s note: See our post on her earlier comments here.]

¶128 The effect of several newly adopted procedures (whether the effect is intended or not) is to silence an individual justice’s voice——whether that justice wants to hold a petition for review for further discussion, write separately on a matter, or dissent.

¶129 I have pledged to continue to discharge my duties on this court as the people of the state have four times elected me o 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 dissent.

¶130 We are a court of seven.  Each justice is only one voice of seven.  I will continue to be one justice with one voice, but mine will not be a timid voice as I continue to serve the people of the state of Wisconsin.

¶131 For the reasons set forth, I write on the merits of the case and court procedure.

¶132 I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

fn 8 The procedure was adopted pursuant to the Introduction to the Supreme Court’s Internal Operating Procedures, which states that the Internal Operating Procedures “may be changed without notice as circumstances require.”  The Supreme Court Internal Operating Procedures are available in Volume VI of the Wisconsin Statutes (2013-14).

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