CLOSING ARGUMENTS: Was court right to close rules conferences?

The integrity of judicial review vs. the public’s right to know

Appellate court decisions, like sausages, cease to inspire respect in proportion to how much we know about their creation.

The Wisconsin Supreme Court’s recent return to its long-standing policy of deliberating behind closed doors over administrative matters and the rules it operates under not only brings Wisconsin back in line with every other appellate court in the country but is necessary to protect and preserve the very independence and sanctity of our judiciary. Specious arguments to the contrary all share the fate of further politicization and manipulation of a court that has seen its fair share of both in recent years.

A little history and perspective is important here. Our Supreme Court, like every other appellate court in the country, has always conducted its appellate arguments in public and its deliberations in private. In 1995, the court began the year-long experiment of holding open deliberations on proposed rule changes.

The policy became official the following year. Four years later, the court broke new ground when it also began holding its deliberations on court policy in an open forum. The thoughts, musings, and deliberative interactions of the justices wound up live on the WisconsinEye Public Affairs Network or memorialized on YouTube.

That lasted until 2012, when the court, in a 4-3 partisan vote, decided that a return to discussing administrative policy behind closed doors would save time and improve court relations.

Deliberations over proposed changes to the court’s formal rules, however, were still open to the public. “To sit out here in public and philosophize…is really not the best use of our time,” Justice Pat Roggensack said at the time.

On June 21, 2017, in open conference, the court’s five most conservative justices approved revisions to the Supreme Court’s Internal Operating Procedures, reverting to its original policy of holding its rule-change deliberations behind closed doors. The conservative justices Roggensack, Gableman, Kelly, Ziegler, and Rebecca Bradley, voted to end the public meetings. Liberal Justices Shirley Abrahamson and Ann Walsh Bradley voted against the measure.

The decision to return the court to private deliberations should not come as a surprise to anybody. It had become painfully clear that it was time to end the experiment. The open-deliberation policy harmed consensus building and collegiality among the justices, and the court’s image suffered. Wisconsin remained an outlier and no other court in the country had taken the bait and emulated the practice. Quarreling in public does harm to the Supreme Court as an institution and to the judicial branch of government in general.

Ann Walsh Bradley maintained that the idea behind closed deliberations is “counter-intuitive” and that “The way for us to appear well-behaved is simple—it’s for us to behave well.”

But it appears behaving well was easier said than done for Bradley, who, during the very public open conference held on June 21, stood over Justice Gableman’s shoulder and angrily tried to grab memos he was reading from his hands. This prompted a public reminder from Gableman of an incident in 2011 in which Justice David Prosser acted in self-defense by allegedly placing his hands on Bradley’s neck. Suffice it to say, consensus-building and collegiality were not on display in the video, which went viral.

Of the three branches of government, the judicial branch is necessarily the most clandestine. Publicity interferes with important aspects of how justice is dispensed. It is easy—even lazy—to simply assume that because “greater transparency” sounds good, it should be the rule. If pre-decision deliberations—when the justices’ tentative thoughts and candid theories are tested and debated with colleagues—are aired on television, their thoughts and comments become material in future litigation and form the framework for future appellate arguments. Public deliberations lead to judges reading from prepared scripts and choosing their words and expressions surgically, diminishing the quality of debate to the detriment of decision-making and the advancement of legal theory.

The secrecy of deliberations is as important for appellate courts as it is for juries. Both serve an intermediary role and must be independent of the state, of the parties and of the community itself.

Even in an open society, confidentiality is sometimes necessary for a full airing of the issues. Justices need the freedom to try out policy positions and reveal their candid uncertainties—both of which are unlikely to occur if they might end up on the evening news.

Open deliberations stifle candor and inject a new pathology into a hallowed process. They provide opportunity and ammunition for political operatives and special-interest groups who rely on the Supreme Court—as opposed to the Legislature—to carry out their agenda. Courts would have to wrestle with whether to allow these public deliberations to affect other decisions, raising many of the same issues involved in debates over the precedential value of unpublished opinions. Justices deliberating in public behave, speak, and think strategically.

The inherent value of private deliberations is lost in an open forum, and politics is always waiting at the gate. Wisconsin is one of fourteen states that hold “non-partisan” elections for their Supreme Court justices, but recent contests (including Justice Prosser’s recall) have been anything but “non-partisan,” with both sides receiving money from well-financed special interests outside Wisconsin. Politics is a circus with better actors; private deliberation allows justices to be judges instead of politicians.

Opponents of private judicial deliberations have called it a “blow to representative government,” which is a peculiar contention since the judiciary isn’t composed of “representatives” and every other state does it that way. Judges represent only equal justice under the law. The Wisconsin Supreme Court does not need a chaperone while it internally debates its policies and rules. Instead of allowing itself to become a laboratory for political operatives, the court should remain steadfast to the hallowed judicial procedures honored by every other court in the country.

Gary L. Wickert is an insurance trial lawyer and partner at the law firm of Matthiesen, Wickert & Lehrer, S.C.