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High court will no longer publicly debate, vote on rule changes (UPDATE)

The Wisconsin Supreme Court held its last open-rules conference of its current term on Wednesday – and quite possibly the last one in its history.

The justices voted 5-2 to no longer publicly debate and vote on proposed changes to its rules. The court’s vote, however, stopped short of ending the court’s practice of holding public hearings to accept testimony on proposed rules changes.

Justices Ann Walsh Bradley and Shirley Abrahamson, members of the liberal-leaning minority on the court, provided the two dissenting votes.

The motion was brought by Justice Michael Gableman, who recently announced he would not be seeking re-election, and seconded by Justice Dan Kelly.

“I really think the time has come to return to traditional judicial procedure, as we did with administrative matters some years ago,” said Gableman.

He noted that Wisconsin is the only state whose high court makes some of its deliberations in public.

“The court doesn’t need a chaperone for considering the rules,” Kelly added. “I think we’re completely capable of conducting our business on our own.”

Justice Rebecca Bradley sent her vote in favor of the change by text message. She was unable to attend the meeting because of a “personal emergency,” Chief Justice Pat Roggensack said at the meeting’s outset.

Wednesday was not the first time the court had taken such a step. Acting on a proposal that Roggensack introduced in 2012, it recently decided to close its formerly open deliberations on administrative matters. That reversed a policy the court had adopted in 1999. The court started holding open deliberations on proposed rule changes in 1995 as part of a year-long pilot program and later made them official court practice in 1996.

Before Wednesday’s vote was taken, Abrahamson and Ann Walsh Bradley attacked Gableman’s proposal at length. Ann Walsh Bradley complained that she had sent out an email on Monday to all the justices and their clerks asking what the proposal was about and got no response. At Wednesday’s meeting, though, it appeared to her that certain other justices had already discussed it.

“Can anyone offer a reason why I was shut out of this discussion and not told what it was about?” she asked after Gableman had made the motion.

Gableman replied that he had not seen her email.

“Shame on all of you,” Ann Walsh Bradley said after Kelly commented on why he was supporting Gableman’s motion.

“Shame on you, Ann,” Gableman fired back.

Abrahamson said Ann Walsh Bradley has conducted research showing that Gableman was mistaken about the court’s history with conducting public meetings. Abrahamson said she would now refer to the court as “the supreme court of secrecy.”

“This is just outrageous to bring it up, but it is up,” she said. “There are no other choices. Unfortunately, no one else except Ann has the history of this.”

“Your history is self-serving and incomplete,” Gableman replied. He said he wanted a copy of her entire file and began to read memos out loud dating back to 1995 and 1999.

“Where did you get those? Those are private,” Ann Walsh Bradley said, who stood over Gableman’s shoulder and appeared to read the memos until Roggensack told her to sit down.

Gableman said he was appalled by Ann Walsh Bradley’s conduct.

“The time for trial is over,” he said after reading the memos.  “It is time for us to return to how a court operates consistent with how our 49 sister states operate. And, Ann, I take great exception to you reaching over and coming over to me. You complained about it when a justice did that to you.”

About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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