Particularly, Abrahamson’s awesome dissent. Rudy Moore, a friend of mine from Foley & Lardner helps break it down. Rudy was a judicial intern for Chief Justice Shirley Abrahamson. Besides being an attorney, he’s also an electrical engineer, recipient of a Congressional medal for service in Antarctica after spending 13 months there, and he’s a commercially licensed pilot. Here’s also on the immediate past president of the Board of Directors of Tenant Resource Center and is on the board. Here’s his thoughts on the opinion.
The opinion written by the Wisconsin Supreme Court on the Budget Repair Bill is worth reading, especially the dissent by Chief Justice Abrahamson. I outline the dissent below. Reading the opinion is a little tricky though if you don’t already have a legal background. Parts of it seem intentionally obfuscated, especially the first part of the opinion itself. And parts of it are just complex, like the various procedural statements throughout the opinion. Here’s a brief plan for your reading:
1. Skim the order. Skip over parts that seem like they’re not clear – they’re intentionally not clear. 2. Read Abrahamson’s dissent. She talks about the missions of the court system in pretty clear language. 3. Re-read the order and Prosser’s concurrence. 4. Do a victory lap and give yourself a gold star.
Here’s the link to the opinion: http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=66078
It’s really hard to pare down Chief Justice Abrahamson’s dissent to just the important stuff. Every reading will produce more. Here are some quotes that jumped out at me in my first reading:
“The order contains errors of law and fact.” P82 Aside: watch for the Chief’s understatements. She does it intentionally… and I believe she does it to set off the importance of the statements.
“The court doesn’t have Original Jurisdiction to hear this case.” P97 Aside: Original Jurisdiction is a special ability that lets the court hear something for the first time if there are amazingly serious consequences. This is how the Supreme Court heard the Florida recount issue so quickly in the Gore v. Bush case. Almost EVERYTHING gets to the Supreme Court on Appellate Jurisdiction. That means they just review what the earlier court did. The reason for this is simple: if you go through a couple layers of courts before getting to the Supreme Court, you get the benefit of all the brains below thinking about the problem.
“[The Supreme Court] is not a fact-finding court.” P107 Aside: all court cases are broken into two portions, fact finding and legal analysis. Fact finding is nearly sacrosanct. That’s why Jury’s have the power to “Nullify.” The reason is because facts are incredibly observer dependent. The farther you get away from the facts, the harder it is to see the truth of them. The Supreme Court (SC) doesn’t try to figure out the facts – they take what the fact finders below found at face value. Second aside: If it really was original jurisdiction, then it would make sense to me that the SC would be a fact-finder. Even then, though, it would be a very strange thing and not handled casually.
“The order builds a straw house so that it can blow it down.” P109 Aside: The order says that the parties argued something they never did. They said that the parties argued that the constitution was amended in passing the Open Meetings Law. That’s just silly. And that’s the reason they put it out there – it’s easy to knock down a silly argument. On the other hand, it’s very hard to knock down the argument, supported by facts, that the legislature broke their own rules. The rules they broke weren’t just about something unimportant, like blue vs. black ink. No, the rules were about something very important: the constitutional mandate that people have access to the legislative process.
“The order interprets and dismisses the constitutional provision [“The Doors of Each House Shall Be Kept Open.”] in four short sentences without citation or rationale——an unsupported, four-sentence interpretation of a fundamental constitutional guarantee ensured by the people of Wisconsin!” P112. Aside: The SC’s role is to interpret the constitution. (WI constitution for the Wisconsin Supreme Court, Federal Constitution for the Supreme Court of the United States.) Simply saying “Access was not denied” fails to actually interpret the constitution. That’s their job.
Literally, the doors were not open. I was there. So, perhaps the literal interpretation isn’t right. What does it mean figuratively? That access should not be denied, as in the throw-away sentence? Well, what does access mean? And who are we guaranteeing access to? Apparently, not everyone. The court should have at least addresses these concerns.
Second aside: The Chief used an exclamation point. She is a person that is the epitome of understated. When she uses an exclamation point, it’s a deafening roar.
“[A] court may require the legislature to comply with a legislative procedural rule or statute if the procedural rule or statute furthers a constitutional directive.” P 122. Aside: The court’s decision sweeps a lot of prior law under the rug, including law that is directly on point. This isn’t what courts do. Prior law is almost always precedent that must be followed. Alternately, you can show how the current facts don’t quite fit that prior precedent. Only rarely, and with great deliberation and legal analysis, is anything turned over. That’s the stuff that makes the news. Brown v. Board of Education sort of stuff…
“In sum, the litigants and the public deserve more than the majority’s hasty judgment.” P125
“Unreasoned judgments breed contempt for the law. The majority, by sacrificing honest reasoning, leads us down a pernicious path.” P127
Read the dissent. Read the opinion. You decide.
