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Trial Court Ruling, Generally: Independent Judicial Analyis Necessary (“Wholesale Adoption” of Party’s Brief “Inappropriate”)

State v. Demian Hyden McDermott, 2012 WI App 14 (recommended for publication); for McDermott: Robert R. Henak, Amelia L. Bizzaro; case activity

¶9 n. 2:

McDermott complains that the circuit court “erroneously exercised its discretion by its wholesale adoption of the State’s brief as its decision.”  (Most capitalization omitted.)  The sum total of the circuit court’s analysis in denying McDermott’s sentence-modification motion without first holding an evidentiary hearing is:  “For all of the reasons set forth in the State’s excellent brief, which the court adopts as its decision in this matter, the court denies the defendant’s motion as well as the evidentiary hearing he requests.”  We agree with McDermott that this is inappropriate—judges must not only make their independent analyses of issues presented to them for decision, but should also explain their rationale to the parties and to the public.  See Trieschmann v. Trieschmann, 178 Wis. 2d 538, 541–542, 504 N.W.2d 433, 434 (Ct. App. 1993) (Improper to “simply accept[] a [party]’s position on all of the issues of fact and law without stating any reasons for doing so[.]”);cf. Wis. Stat. § 751.10 (“The supreme court shall decide all cases in writing.”); Wis. Stat. § 752.41(1) (“In each case, the court of appeals shall provide a written opinion containing a written summary of the reasons for the decision made by the court.”).  Although we do not in Wisconsin have a specific rule that requires trial judges to state their reasons, as does, for example, the United States Court of Appeals for the Seventh Circuit, we believe that the following admonitions by that court are a good reminder why judicial decisions at all levels must be explained by the judge or judges in their own words:

Circuit Rule 50, which requires a judge to give reasons for dismissing a complaint, serves three functions:  to create the mental discipline that an obligation to state reasons produces, to assure the parties that the court has considered the important arguments, and to enable a reviewing court to know the reasons for the judgment.  A reference to another judge’s opinion at an earlier stage of the case, plus an unreasoned statement of legal conclusions, fulfils none of these.


From time to time district judges extract portions of briefs and use them as the basis of opinions.  We have disapproved this practice because it disguises the judge’s reasons and portrays the court as an advocate’s tool, even when the judge adds some words of his own….  Judicial adoption of an entire brief is worse.  It withholds information about what arguments, in particular, the court found persuasive, and why it rejected contrary views.  Unvarnished incorporation of a brief is a practice we hope to see no more.

DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir. 1990).  We agree.  Since our review of the circuit court’s denial of McDermott’s motion to modify his sentence is based on our de novo analysis of whether he has presented new factors, the circuit court’s failure to give its reasons (rather than adopt the State’s brief in haec verba) is of no consequence in this case.

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