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Justices close doors on rules deliberations with some disorder in the court

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

The justices voted 5-2 on June 21 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.

Steve Levine, a Madison attorney, said that open rules conferences had given groups with a pending petition before the court an opportunity to both learn of the court’s concerns and gain a sense of what its final ruling was likely to be.

“The court’s decision to close its rulemaking conferences after 22 years of holding them open to the public was a real bombshell,” Levine said. “It’s quite a blow to representative government and the public’s right to know.”

But the court’s deliberations have not always been conducted before the public. It was only in 1995 that the court started holding open deliberations on proposed rule changes. The policy was first tested out as part of a year-long program and was not made official until the following year.

Then, in 1999, the court similarly decided to start holding its deliberations on administrative matters before the public. Those remained open until 2012, when the court, acting on a proposal introduced by then-Justice Pat Roggensack, voted to close them again.

When the vote was taken last week to once again hold rule-change deliberations behind closed doors, the only opposition came from justices Ann Walsh Bradley and Shirley Abrahamson, who make up the court’s left-leaning minority. That was not enough to stop the motion, which 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.

Gableman  noted that Wisconsin is the only state whose high court conducts 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.

Before the  vote was taken, Abrahamson and Ann Walsh Bradley had attacked Gableman’s proposal at length. Ann Walsh Bradley complained that she had sent out an email two days before, on June 19, to all the justices and their clerks asking what the proposal was about and got no response. She complained at Wednesday’s meeting that it seemed as if certain other justices had had an opportunity to discuss 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 out loud memos dating back to 1995 and 1999.

“Where did you get those? Those are private,” said Ann Walsh Bradley, 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 actually 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.”

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