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State Bar, courts celebrate past, future

Abrahamson

“Judicial independence remains the cornerstone of our democracy and our judiciary.”

Hon. Shirley S. Abrahamson
Chief Justice
Wisconsin Supreme Court

“You say it’s your birthday? Well it’s my birthday too, yeah.”

That famous refrain from the Beatles could’ve been the theme song to one of the spotlight programs at the State Bar of Wisconsin Annual Convention earlier this month in Milwaukee entitled, “Echoes of the Past: Landmark Issues, Famous Cases and Legal Giants — Shaping Wisconsin Yesterday and Today.”

The presentation commemorated the 150th birthday of the Wisconsin Supreme Court, the 125th birthday of the State Bar and the 25th birthday of the Wisconsin Court of Appeals, with a panel of prominent jurists offering their historical perspectives to each of these institutions.

The Supreme Court

Like many family celebrations, respecting the elders came first — the institution, not the presenters — so that honoring the high court was tops on the agenda.

Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson emphasized the importance of judicial independence. She pointed to one of the high court’s earliest cases, In Re Booth, 3 Wis. 1 (1854), in which the state Supreme Court refused to give deference to a U.S. Supreme Court mandate to enforce the Fugitive Slave Act.

That law required northern states to return runaway slaves to their owners.

Abrahamson assured the audience that the state’s highest court doesn’t thumb its nose at the nation’s highest court these days. Still, that case and others serve as a reminder that judges in Wisconsin should make their rulings guided by the law and their consciences rather than public opinion.

“Judicial independence remains the cornerstone of our democracy and our judiciary. And we do it in good times and in bad, in times of peace and war or terrorism, in flush years in terms of money — although I’ve never seen them — and years of economic crisis.” she said.

Her colleague, Justice Ann Walsh Bradley, looked at another case from the 19th century, Motion to Admit Miss Lavinia Goodell to the Bar of this Court, 39 Wis. 232 (1875). Chief Justice Edward Ryan, a/k/a “The Lion of the Law,” wrote that Goodell should not be allowed to practice before the state’s highest court because her presence would “relax the public’s sense of decency and propriety.”

The case is Bradley’s favorite from Wisconsin’s jurisprudence because it’s a testament to the obstacles women faced as they attempted traditionally male roles. Evidencing this is Bradley’s license plate, which bears the Goodell case citation.

As old as the state Supreme Court is the state’s aversion to the death penalty, which was abolished in 1853.

According to Milwaukee attorney and long-time death penalty opponent Dean A. Strang, of Federal Defender Services of Eastern Wisconsin, the state was not the first in the nation to prohibit capital punishment, but Wisconsin does have the longest unbroken tradition of abolition. That’s in spite of the fact that throughout almost the entire time, public opinion has favored the death penalty.

The State Bar

Brown

“We do more than error-correcting: We enunciate a new rule sometimes; we modify; we clarify; and we apply established rules of law to fact situations distinctly different from that in published decisions.”

Hon. Richard S. Brown
Wisconsin Court of Appeals

Moving on to the next birthday honoree, the State Bar, its president, Patricia K. Ballman, made the case for the requirement of mandatory membership to practice in Wisconsin.

About half of the nation’s
state bar associations are “integrated,” observed Ball-man, of Quarles & Brady LLP. Wisconsin became a mandatory bar in 1956. Then in 1988, Western District of Wisconsin Judge Barbara Crabb held that mandatory bar membership violated the First Amendment. That ruling was subsequently re-versed in the Seventh Circuit.

The Wisconsin Supreme Court reinstated integration a few years later. The majority in In Matter of the State Bar of Wisconsin, 169 Wis.2d 21 (1992), wrote, “Acting as one, … the members of the legal profession constitute a powerful force to further the improvement of the legal system, its laws, its courts and its practitioners.”

The membership of the bar has changed dramatically since its creation, according to Judge Maxine A. White of the Milwaukee County Circuit Court.

White’s lively speech included a PowerPoint presentation that began with a photo from the 1915 State Bar convention, wherein, not surprisingly, all are white males.

Not so these days. The State Bar’s membership is now about one-quarter women. Moreover, three women presidents have led the association so far, and next year, its first African-American woman, Michelle A. Behnke of Madison, will take the top spot.

Meanwhile, looking at the bench, women will predominate the Wisconsin Supreme Court when Judge Patience Rog-gensack is sworn in this August — only three other states in the nation can boast having four women justices.

Yet there remains work ahead in the area of diversity. No person of color has ever sat on an appellate court in Wisconsin; only five African-American men and one African-American woman sit on the circuit courts; and three Latinos and one Native American are circuit court judges.

White concluded by displaying the “newly restored photograph” from the 1915 convention, “which shows the promise that a few a great lawyers can bring, and how far we’ve come.”

For his part, Madison lawyer Joseph A. Ranney III of DeWitt Ross & Stevens S.C. took the audience back to the beginnings of the 20th century, with the passage of the 1917 Espionage Act and its profound effect upon civil liberties. The law raised the issue of whether unity in the interests of national security in times of war is more important than free speech — a familiar debate.

The Court of Appeals

Of the three institutions, the “new kid on the block” is the Wisconsin Court of Appeals, which opened its doors on Aug. 1, 1978 with the help of then-Representative, now-Judge Harry G. Snyder.

Snyder confessed to running for office in the mid-’70s in part because he wanted to market himself as a lawyer. But upon his election to the Wisconsin Assembly, as a member of the Judiciary Committee, he found a higher calling: the creation of the intermediate appellate court.

The task took several years and was by no means a “slam dunk,” Snyder recalled. But he knew he and others working on the project were on solid ground when the League of Women Voters expressed their support, notwithstanding his (former) Republican party membership.

Snyder was elected to the District II court in 1991.

His colleague, Judge Richard S. Brown, has sat on the court in District II since its creation.

Brown explained that there’s a misconception among some practitioners that the state’s highest court makes the law, while the intermediate court is merely an error-correcting court.

The Supreme Court is a “law development” court, which “declares the law — and that’s a lot different than making the law,” he said. As for his court, “What we do is we apply the law. We fill in the gaps and make the law work.”

Brown continued, “We do more than error-correcting: We enunciate a new rule sometimes; we modify; we clarify; and we apply established rules of law to fact situations distinctly different from that in published decisions.”

Links

State Bar of Wisconsin

An example of the courts’ varying roles is the body of law dealing with property division in divorce. The state’s highest court developed the law interpreting sec. 767.255 in Bonnell v. Bonnell, 117 Wis. 2d 241 (1984), but the court of appeals has since filled in the gaps with about a half dozen important decisions on the transmutation of property between spouses.

Communication among the districts is key, because the same issues arise all across the state and the court’s caseload is heavy. In addition, its members don’t want to recreate the wheel with each case, and they take pride in the unity of their decisions. The Internet and sources of published case law are invaluable communication tools.

Before the court was created, Chief Judge R. Thomas Cane, who has served on the court of appeals since 1981, said that all appeals went to the state Supreme Court.

The high court was handling 600-plus cases per year, and it wasn’t uncommon for an appeal to take two and a half years or longer.

Nowdays, 92-96 percent of all state court appeals come to a final disposition with the intermediate court, and the court’s turnaround time averages eight to nine months. That’s in spite of a growing caseload; the court handles just shy of 3,500 cases annually, and Cane predicts that number will increase to 4,000 in the coming years.

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