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Justices consider taking oral arguments outside the court

By: Jack Zemlicka, [email protected]//November 29, 2011//

Justices consider taking oral arguments outside the court

By: Jack Zemlicka, [email protected]//November 29, 2011//

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A high school gymnasium isn’t where veteran Milwaukee appellate lawyer Rob Henak said he aspired to argue a case in front of the Wisconsin Supreme Court.

The idea of basketball hoops hanging over the heads of the seven justices doesn’t convey the same significance as holding oral argument in the court’s ornate Madison hearing room, he said.

“One of the important parts of having a courtroom,” said Henak, of Henak Law Office SC, “is to emphasize the solemnity of the court and the case.”

But attorneys in Wisconsin could find themselves arguing Supreme Court cases outside of a courthouse setting, pending a decision by the justices on a proposal to expand its Justice on Wheels program, which allows the court to hold oral argument at other courthouses in state at least once a year.

Since the Justice on Wheels program started in 1993, the justices have held oral argument at 22 different county courts. The northernmost county visited by the court was Douglas County, on the Wisconsin-Minnesota border, in 1998 and the farthest west of Madison the court has been was St. Croix County in 2007.

Justice David Prosser’s proposal to expand the program to include venues other than courthouses is in response to public concern about the uniformity of the court after a series of public spats. The justices have been considering ways to increase accessibility and transparency of the court to bolster public confidence.

The court is scheduled to discuss Prosser’s proposal Dec. 5.

The overall goal of the program, he said, is to eventually visit every county in the state. Expanding the possible venues beyond courthouses could help with achieving that goal, Prosser said.

With the court generally visiting one county a year, Prosser said, a major county such as Milwaukee, which the court visited in 1996, would not warrant a return trip for almost 50 years unless the justices considered other options.

“Part of the idea of going to someplace other than a courthouse is to provide an excuse to go back to Milwaukee County,” he said.

Prosser said he didn’t want to hold hearings outside courts at the expense of justice, however.

“We’re not going outside a court unless there is no other way to go to the county,” he said. “So I think it’s going to be a case-by-case basis.”

Henak said he supported Prosser’s initiative as a way to make the court more accessible and transparent, but also said he could see potential problems with the plan.

Novice attorneys could be distracted, he said, by the experience of litigating a criminal case in a gym with a few hundred people in attendance, and lose focus.

“The court should be careful with how it assigns cases,” Henak said. “So that more experienced litigators are handling those cases.”

Justice Patience Roggensack said she was open to the idea of holding oral argument outside a courtroom, to an extent.

She said she would consider holding oral argument at one or both of the law schools in Wisconsin, but acknowledged picking venues that had nothing to do with the law or courts potentially could lead to a perception that some cases were less significant than others.

“I don’t know why we would do it,” Roggensack said. “If there was a good reason to do it, I am willing to listen.”

Henak questioned the logic of holding oral arguments at law schools, however, and said doing so might only cater to members of the legal community and deter the public from attending.

“Those big buildings are kind of intimidating to people who are not lawyers,” he said. “So I’m not sure if that is really going to fulfill the goal of bringing in the public or make the court more accessible.”

Before the Justice on Wheels program, Chief Justice Shirley Abrahamson said, the court never had four votes to even hold oral argument outside of Madison. She would not speculate on how the court would vote on the current proposal to hear cases outside of a courtroom.

“We’ve had previous discussions that trial courts were holding some sessions in schools,” Abrahamson said. “I think we just decided that those should be held in court, but we can always review things and make a different decision.”

Milwaukee appellate lawyer Beth Hanan said she would welcome the expanded venues because a fresh approach was needed.

“It’s a welcome innovation,” said Hanan, of Gass Weber Mullins LLC. “I think it will make the work of the justices more accessible to citizens who are interested and shouldn’t result in a net loss of respect for the system.”

At first blush, she said, arguing a case outside of a courtroom could be interpreted as a “diminution of respect” for the process. But some courts in the state are too small or old to support a visit by the justices, which shouldn’t be a barrier, she said.

Henak acknowledged that lawyers and judges don’t necessarily need a courtroom to hear cases, but he said courthouses should be the first option to hold oral arguments as a way to preserve the significance of cases.

He argued a case in front of the Supreme Court in 2004 during its visit to Racine County Courthouse as part of the Justice on Wheels program and said the experience was not the same as being in the State Capitol.

“It was quite odd and took away from the whole solemnity of the courtroom,” Henak said.  “I don’t think it would have been any different had I been in a gym.”

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