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CAPITOLISMS BLOG: Concrete evidence of humor at the state’s high court

It’s hard to imagine anyone turning to Wisconsin Supreme Court rulings for entertainment.

But, in what can only be occasions for gratitude among any of us required by professional reasons to read the court’s opinions, the Supreme Court Justices do from time to time take the trouble to inject a little wit into what by necessity must usually be dry legal reasoning.

Take the 50-page ruling they issued in the case of United Concrete & Construction v. Red-D-Mix Concrete Inc., which concerns a suit one contractor filed against another after claims about the elimination of flaws in a concrete product had proven unfounded.

Rather than start dryly, Justice Michael Gableman gave in to the no-doubt irresistible temptation, given the subject matter, to make a little joke. “There are many vagaries in the law,” he wrote. “However, we deal here with the concrete. Specifically, certain branches of concrete that United Concrete and Construction, Inc. (United) purchased from Red-D-Mix Concrete, Inc. (Red-D-Mix) and now complains were defective.”

The good thing about this is the Justice recognized that his duty to maintain the dignity of his office is in no way at odds with his writer’s duty to draw in his readers with a compelling beginning.

Gableman’s words even inspired Chief Justice Shirley Abrahamson to use a little word play of her own. Arguing the majority opinion didn’t give specific enough instructions when ordering the case back to a circuit court for trial, she wrote in a concurrence that, “I vote for concrete reality. The majority opinion should be precise in telling the circuit court which parts of the complaint it should strike.”

Even better than this, though, were the little shots the Justices took at each other throughout the entire ruling. Much of the differences between the majority and concurring opinions arose from the question of whether United sued Red-D-Mix only on its own behalf, or also in the name of 22 homeowners who had previously assigned to United their rights to bring a lawsuit in the matter.

“Alone among every attorney or judge who has participated in this case, from its commencement to today” Gableman wrote, “Chief Justice Abrahamson and the two justices with her in the concurrence, believe United did not sue in the homeowners’ name in addition to its own.”

In what is almost certainly a response, Abrahamson said the questions raised about the homeowners’ assignments of their right to sue were red herrings, “diverting attention from the real issues: Did Red-D-Mix… breach the contract, and is United Concrete’s claim for damages speculative?”

She goes on to say the majority opinion “sometimes accepts Red-D-Mix’s mistaken depiction of the complaint. Indeed the majority opinion repeatedly vacillates between reality and spin.”

Maybe these pointed exchanges are evidence of the supposed dysfunction that many observers have commented on recently. But whatever the cause, the result in this instance is desirable: opinions expressed in lively language, rather than the usual euphemisms and diplomatic clichés that we find in public pronouncements.

Finally, what to make of the concurring opinion’s rendering of Justice Patience Roggensack’s apparent mispronunciation of the words “going to” as “gonna” in a quote reproducing something she had said during the case’s oral argument? Now, as a reporter, I’ve been often told that if someone says “ain’t” and I have to quote him, I’m not allowed under any circumstances to replace the offensive word with a grammatical substitute.

That said, there are plenty of times when what someone says actually falls into the no-man’s land between the correct form and the common mispronunciation. There have been many occasions, for instance, when I’ve had to ask myself if I really heard “should of”, pronounced with two distinct words, or just a slightly muddled “should’ve.” Similarly, the choice is often either between “gonna” or the assumption that someone actually said “going to,” but used an especially soft “t.”

My inclination is to give the speaker the benefit of the doubt. Why didn’t the concurring opinion do the same for Roggensack?

Staff writer Dan Shaw writes his Capitolisms blog for The Daily Reporter and Wisconsin Law Journal. Read more at dailyreporter.com/capitolisms

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