As the Wisconsin Supreme Court rushes to work through an extensive backlog of cases, the justices are reconsidering their long-standing reluctance to use email to discuss opinions and revisions.
Justices typically hash out their formal opinions and suggest revisions during closed conferences held at the state Capitol building. Some say the system prevents confusion by making it easy for court members to know if everyone is talking about the same draft version of a document; many also say keeping the discussion out of the public eye allows for a more frank exchange of views.
But at an open hearing Wednesday, several of the justices wondered aloud if relying more on email and other forms of electronic communication might help hasten the release of court opinions. Justice Michael Gableman said he and his colleagues have used email for limited purposes in the past and he thinks that the option to increase its use should remain open.
Gableman noted that the justices have scheduled a series of conference dates in April next year to discuss opinions. He said those meetings almost certainly will produce suggested revisions.
“If they are of the variety that we have seen in the last several weeks of this term, they can certainly be approved, as we’ve done a few already, by email,” Gableman said. “And that seems to have worked.”
Justice Ann Walsh Bradley, though, said the possibility of relying more on email was a “discussion for another day.”
Julie Rich, commissioner for the state Supreme Court, said one reason some justices have been reluctant to use email is a fear that opinions would be leaked when they are only in a draft form. She said some are reluctant to put forward arguments that might eventually be changed, either in response to persuasive colleagues or because of the discovery of a fault in legal reasoning.
The need to move business along more quickly has become a topic of discussion lately, however, as the court has struggled to keep up with a mounting backlog of cases.
Alan Ball, a Marquette University history professor, noted in a blog posted this month that the justices, by May 21, had discussed only 23 percent of the 60 opinions they plan to release by June 30. That pace compares poorly with previous years, Ball reported on his blog SCOWStats, which stands for Supreme Court of Wisconsin Statistics.
Only a year ago, for instance, the court had released – not just discussed – 46 percent of its opinions by May 15. Ball said there is at least one hypothesis about what’s causing the delays.
Some observers believe, he said, that the justices have been writing more dissenting and concurring opinions. Ball said he plans to collect data on that question and publish his results as early as next week.
At the hearing Wednesday, the justices also discussed whether deadlines they set themselves ought to be more strictly enforced. They said that those who are entrusted with writing opinions or dissents often find ways to avoid turning in a final product by a specified date.
Bradley said the justices sometimes find themselves having to deal with a pile of cases at once.
“My concern is that, like this last May, we had 17 opinions circulated for the first time,” she said. “To dump that number at the very end is a problem.”
But Gableman and Justice Pat Roggensack countered by saying deadlines are blown regularly and that more systemic changes might be needed.
“It’s also a problem,” Roggensack said, “when we have people who hold things out for the last revision in December, and you do not get a separate writing on it until the last week of June.”Follow @TDR_WLJDan