Committee can support constitutional amendment

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“If a case has been determined by the Supreme Court to have significant enough statewide importance … for review, then that case ought, if at all possible, to be decided by the Supreme Court.” Lynn Laufenberg Laufenberg & Hoefle, S.C.

The State Bar Board of Governors gave the Litigation Section approval to support a state constitutional amendment allowing a temporary justice to serve on the Wisconsin Supreme Court. That OK came despite the opposition of the State Bar’s Appellate Practices Section.

In a 25-15 vote Friday, the Board of Governors gave the Litigation Section authority to officially support a piece of legislation, which would allow the Supreme Court to appoint a temporary justice when there is a recusal on the court.

State Rep. Greg Huber and Litigation Section Vice Chairperson Lynn Laufenberg spoke in support of the proposal. Appellate Practice Section board member Kenneth L. Lund spoke in opposition.

Temporary Justice

Huber introduced Assembly Joint Resolution 44 in September. The resolution would give the state Supreme Court the ability to choose a judge from the court of appeals to temporarily fill a vacancy on the high court. That selection would be random.

Huber outlined three instances when the temporary appointment would come into play. The first would be when recusals left the court with an even number of justices leaving the door open to a tie decision. During the last Supreme Court session, nine cases had recusals with four ending in tie votes. In those instances, the court of appeals decision stands. If the case were certified from the court of appeals, the case would go back to the court of appeals to decide the issue, which could eventually go back to the Supreme Court.

The second situation would allow temporary assignment if the high court had to hear a disciplinary action for one of its own justices. A third possible situation would arise when four or more justices recused themselves. Huber noted that has not happened. However, during the last session three justices recused themselves in one case.

So far, he observed, 35 states have established some method of appointing temporary justices to their supreme courts.

“This bill is very discretionary,” Huber said. “It gives maximum flexibility to the Supreme Court.”

That flexibility allows the court to decide when it is appropriate to assign a temporary justice and when that measure is not necessary. Under the resolution, court of appeals judges who originally sat on the case would not be allowed to hear it at the Supreme Court level.

Laufenberg stressed the need to avoid ties at the Supreme Court level and receive a definitive answer from the high court.

“If a case has been determined by the Supreme Court to have significant enough statewide importance … for review, then that case ought, if at all possible, to be decided by the Supreme Court,” Laufenberg said.

Existing System Works

Opponents of the proposal also pointed to the importance of getting a decision from the Supreme Court on matters of statewide importance. However, they indicated that a panel of six justices and one court of appeals judge would not accurately reflect the will of the state’s high court. They also expressed concerns about accountability when the temporary member of the panel was not chosen in a statewide election.

Lund characterized it as a matter of speed versus quality.

“If you define the problem as how to get the quickest decision from the Supreme Court, then I would agree this is one possible solution,” Lund told the board. “But if you define the problem as how to get the best, most accountable decisions on cases that are most important to the state of Wisconsin, we believe the current system is the best way to do that.”

In a situation where there was the potential for a 3-3 tie of the court, Lund noted, the court of appeals judge would be in the position of deciding the case.

“That’s a situation where a single court of appeals judge does what not
even a full panel of the court of appeals can do — that is to overturn a decision of the court of appeals or even a prior decision of the Supreme Court.”

Treasurer Dean R. Dietrich, of Ruder, Ware and Michler LLSC in Wausau, moved that the Board of Governors support the Litigation Section’s request.
Fix Things Now

Gov. Kent I. Carnell, of Lawton & Cates S.C. in Madison, supported the proposal and the idea of addressing the issue before a crisis arises. He indicated that it was not sufficient to say that the court of appeals decision would stand when the Supreme Court decision is tied.

“Now is the time to propose something when we are not in crisis, so the system works in the future,” said Carnell. He added, “You can’t assume the court of appeals judge appointed is the one making the final decision. It’s not necessarily known when he’s appointed that it is a 3-3 tie and he’s going to break that tie. It’s getting seven (justices) up there to make that decision.”

Gov. Michael R. Christopher, of DeWitt Ross & Stevens S.C. in Madison, also supported the proposal. He pointed to the problems associated with tie votes on the Supreme Court.

“I do consider a 3-3 vote a failure of the system,” Christopher said. “It does not give direction to the public. … It keeps the law in limbo.”

Gov. Robert W. Swain Jr., of Peterson, Berk & Cross S.C. in Appleton, said he viewed a 3-3 decision from the justices as a valid decision from the Supreme Court and not a failure of the system. Gov. Deborah M. Smith, of the State Public Defender’s office, agreed. She also noted that this was a big step for the state to consider without some driving need.

“We are talking about changing the constitution of the state of Wisconsin,” Smith said. Unless there is some really compelling reason or some crisis of confidence among the public, I just don’t think we should be taking our wrenches out and tinkering.”

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Gov. Jo A. Swamp, of the Forest County Potawatomi, observed that as long as there was no crisis, the Board of Governors should not feel pressured to make a quick decision on the matter. Instead, she thought it would be better to take some time and take a closer look at what was being proposed.

In the end, the board voted 25-15 approving the Litigation Section’s request to support the proposed constitutional amendment. State Bar bylaws required a vote of at least 60 percent, in this case 24 votes for approval.

The state Legislature would have to approve the proposed amendment in two consecutive sessions. Then it would be placed on a statewide referendum for voter approval.

Tony Anderson can be reached by email.