Proposal offers high court substitutes

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“You get litigants who have spent all this extra money to appeal the decision all the way to the Supreme Court then due to the fact that there are not an odd number of justices up there they end up losing the case.” Rep. Gregory B. Huber State Assembly

Two legislators are seeking support for a proposal that would allow the state Supreme Court to temporarily substitute a court of appeals judge to the high court bench during times of illness or recusal.

Reps. Gregory B. Huber (D-Wausau) and Mark Gundrum (R-New Berlin) have a deadline of tomorrow for co-sponsors for a plan they anticipate introducing within the next week. The proposal would modify the state constitution to allow the Supreme Court to select a court of appeals judge by lot to sit on a case where a justice has recused himself or herself.

Substitutions could also take place if a justice were ill and unable to hear oral arguments.

Huber and Gundrum’s goal is to eliminate the problems that can arise when an even number of justices hear a case, ending in an equally-divided decision. In those instances, the decision from the court of appeals is affirmed. If a case is certified to the Supreme Court, is goes back to the court of appeals for review. Then parties can petition the Supreme Court for review again.

“Right now about 36 states have some provision to appoint temporary reserve justices to the highest court when one or more justices are unable to serve,” Huber said.

“That’s what we’re trying to do here.”

He highlighted the problem of litigants who end up spending time only to learn that the court was unable to reach a majority decision.

“You get litigants who have spent all this extra money to appeal the decision all the way to the Supreme Court then due to the fact that there are not an odd number of justices up there they end up losing the case,” Huber explained.

3-3 Decisions

Since 2000, the Supreme Court has been equally divided on a dozen cases, which ended up affirming the court of appeals decision or going back to the court of appeals for review. Three of those split decisions were issued in 2003. Looking back to 1996, the school choice case — State Ex. Rel. Thompson v. Jackson, 199 Wis. 2d 714 (1996) — resulted in a 3-3 decision from the court. Justice Ann Walsh Bradley did not participate.

“There have been a number of very significant cases coming before the Supreme Court where one jurist or another has had to recuse himself from the decision,” Gundrum said. “In some cases, it ends up being an even split … as a result there is no way to get a conclusive answer from the state’s highest court.

“That’s why we thought it was important that in such situations where there would otherwise be a potential tie in the case, it would be more appropriate to have one of these qualified court of appeals jurists sitting on the Supreme Court for that case.”

Frustrated Litigants

Veteran litigator Lynn Laufenberg, of Laufenberg & Hoefle S.C. in Milwaukee, supports the idea of temporary substitute justices. Laufenberg, who has done litigation and appellate work for the past 25 years, was involved in one of the three cases in 2003 where the Supreme Court was equally divided.

“It is extremely frustrating to put heart and soul into a case that you think is deserving of Supreme Court review — and which most of the time the Supreme Court agrees because they have accepted a petition for review or have granted certification — only to have either an illness or a recusal that results in an inability to reach a consensus on a case,” Laufenberg said.

The oral arguments in Wenke v. Gehl Co., 2003 WI 96, 01-2649, took place while Justice Jon P. Wilcox was absent due to illness. Laufenberg represented Martin G. Wenke, whose arm was amputated when he removed a bale of hay from the front of a Gehl hay baler. Wenke appealed a circuit court’s summary judgement in favor of Gehl.

The appeal attempted to distinguish between statutes of limitation and statutes of repose. The court of appeals certified the issue to the Supreme Court. I
n July, an equally-divided high court sent the case back to the court of appeal, which issued an Aug. 20 ruling affirming the circuit court. Now that there is a court of appeals decision, Wenke is again petitioning the Supreme Court for review.

“Since this wasn’t a recusal, but instead was an absence by illness, there’s no reason to believe that you won’t be able to get a concensus opinion,” Laufenberg said.

Laufenberg noted that several other cases in the Seventh Circuit Court of Appeals and the District II Court of Appeals have been on hold, awaiting a Supreme Court decision on the question raised in Wenke. He supports the idea of substituting court of appeals judges to the Supreme Court

The other two equally-divided decisions issued in 2003 involved criminal cases — State v. Agnello, 2003 WI 44, 261 Wis. 2d 331, and State v. Greer, 2003 WI 20, 260 Wis 2d. 43. In Greer, a six-person court heard the case due to Wilcox’s earlier illness. The Agnello court had six justices with Justice Diane S. Sykes recusing herself because she sat on the case as trial court judge.

Criminal Appeals

Assistant State Public Defender Donna L. Hintze represented Jeremy T. Greer, whose situation involved the State’s appeal of a pretrial decision. The issue was certified to the Supreme Court, which issued an equally-divided opinion on March 25, sending the case back to the court of appeals. On May 13, the court of appeals issued a decision, which the Supreme Court is being asked to review.

“My client has actually been sitting in custody pretrial because he has been unable to post bail for over two years,” Hintze said. “That’s quite a burden on the defendant.”

Hintze stressed the importance of being able to get a majority opinion from the Supreme Court. However, she would like to have seen that come from a court with seven seated justices, even if that meant waiting a bit for Wilcox to return, or having him participate after listening to the tape recording from the oral arguments.

“I’m not sure what my position would be on drawing, by lot, someone from the court of appeals who has not been elected to the Supreme Court,” Hintze said “That seems somewhat unusual. I think it would be preferable to try and figure out a way in which all of the justices on the Supreme Court could sit on a case unless there is some conflict in which they cannot.”

Assistant Attorney General Gregory M. Weber was involved with Agnello, the other 2003 decision issued by an equally divided Supreme Court. That case also was certified and ended up going back to the court of appeals for review. Once the court of appeals issues its decision, the losing party will have the opportunity to ask the Supreme Court to take the case again.

Such delays can contribute to additional costs in time, money and resources for participants in the case, noted Weber, the Unit Director of Criminal Appeals at the state Department of Justice.

“It’s frustrating for litigants who are looking to the Supreme Court to resolve an issue on appeal,” Weber admitted. “The flip side is that recusals occur because there are circumstances where a justice believes that they ought not hear the case. So I don’t complain when a justice recuses himself or herself because there is a good basis for it.”

Weber said that providing a change, where the Supreme Court would always have seven people seated on a case has some merit. One of the major benefits would be the timely disposition of cases.

“I’d have to see Huber’s proposal in order to specifically comment on it, but in terms of the ability and the competency of court of appeals judges to do that, I’d have no doubt of it,” Weber said.

Drawing Lots

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Neither Huber nor Gundrum foresees a problem with having a court of appeals judge temporarily sit on a Supreme Court case, especially given that the judge would be randomly selected by lots. Naturally, judges who had heard the case at the court of appeals level would be excluded.

“By doing
it by lot, I think it’s fair,” Huber said. “In some states, the chief justice is able to predetermine the outcome by who they select.”

“I think it’s valid,” Gundrum said. “It’s legitimate. You will have … six other Supreme Court justices adding their opinions, so I think it has a great deal of validity.”

Gundrum acknowledged that they have a long way to go with this proposal. Since the Assembly Joint Resolution will require a change in Article VII Sec. 4 (3) of the Wisconsin Constitution, it will have to be approved by the Legislature in two consecutive sessions. Following that, the issue will go to the general public on a voter referendum.

“It is going to be a challenge educating the public on why there is a need and why it’s important. But I think they will understand that you want a majority (in Supreme Court decisions).”

Tony Anderson can be reached by email.