The 2024-2025 term for the Wisconsin Supreme Court just began, and I thought it prudent to offer them some advice as to how to improve their performance this term.
No, they didn’t ask my opinion, and they’ve ignored my advice in the past.
But I’m sure that’s merely an oversight.
So here, as a public service, are five ways (there could be more, but my column has a word limit) for the Wisconsin Supreme Court to improve.
First
As pointed out in my September 12, 2023 column, “Not Playing Nice Together,” the Supreme Court should be setting an example of how to disagree civilly. Instead, for one example, one justice accused others of acting in “violation of your oath, the constitution and longstanding practice.”
As lawyers, we disagree for a living. Doing so by posturing and insulting the opponent may impress a client temporarily, but it won’t convince anyone, including and especially a tribunal. Personal attacks and insults have no place. The Supreme Court should disagree frequently (unanimous opinions are boring), but they should provide a template of doing so respectfully and professionally.
Second
If the court accepts a case, they should decide it. As pointed out in my October 17, 2023 column, “Ties are for Losers,” dismissing a case after briefing and oral argument is a terrible waste of resources.
These cases generally involve one of two scenarios, both preventable.
One is where a justice recuses him- or herself, resulting in a 3-3 tie. In other states, the court avoids a tie by temporarily appointing a lower court judge, selected on a rotating basis, to sit on that case.
The other scenario is where the court changes its mind and decides that they shouldn’t have accepted review. That doesn’t need to happen. If you accept review, decide the case. Period. Geez.
Third
There should be a “death penalty” option for disciplinary cases. As discussed in my May 16, 2004 column, “Life Means Life, or Not,” Supreme Court rules should allow the court to order permanent license revocation where warranted. Instead, an attorney whose license has been revoked can apply for reinstatement after five years, which defeats any differentiation between a suspension and a revocation.
Five justices have signed concurring opinions in several disciplinary cases suggesting this option. Since the court establishes Supreme Court Rules, and five votes is a majority of the court, why don’t they go ahead and establish this rule? Maybe they don’t realize that five votes is a majority of a seven-judge court?
Fourth
The court should open all of its meetings, including the new Attorney Retention and Recruitment Committee, to the public. The Wisconsin Law Journal was just denied permission to attend its meetings, as it doesn’t qualify under the Open Meetings law.
Maybe not, but the Supreme Court should open all possible meetings – including rule-making – to the public. The court is the least democratic of the three branches of government (being elected every 10 years as opposed to two or four years). Yet the justices are incredibly bright people dedicated to the improvement of society through law.
Justices: Don’t hide it! Be proud of it!
Fifth*
*and this is personal
Accept a significant family law case from time to time.
In my May 29, 2020 column regarding an insignificant case, I noted that “It has been eight years since the Wisconsin Supreme Court accepted a review of a family-law case, other than regarding grandparent visitation.”
It’s now been 12 years. Case law provides an objective means of convincing clients to settle cases. Besides, I head a panel discussing new family law cases, and we need material!
In conclusion, to the justices of the Wisconsin Supreme Court:
Please consider these suggestions.
As lawyers, we don’t agree with every opinion you issue, but you get most of them right, and we respect you. The entire system functions better when you function better, and the public will also view the legal profession as a whole in a better light.
P.S. Good luck to the committee – they’ll need it.