July 19, 2011

Justice David Prosser and Chief Justice Shirley Abrahamson split over the meaning of the phrase "acting together."

In a case in which 2 town boards voted on whether to turn a public road private.
Chief Justice Shirley Abrahamson dissented... To support her view, Abrahamson turned to Khalil Gibran's poem "On Marriage."
(Here's the opinion.)

82 comments:

Doug Wright said...

Is this a case of defining the meaning of the word "is" or something different? Next, there'll be a landmark decision on the number of angels on the head of a pin; no not the Chief Justice!

EnigmatiCore said...

Let me guess. One side of this argument can be attributed to 'business' and the other in opposition to business, with the parties (of which judges are not supposed to really be a part of) falling as they usually do. Right?

Revenant said...

What is the Althouse interpretation of the law?

rcocean said...

"The majority fails to recognize that acting together does not mean sacrificing individuality and individuality does not mean sacrificing acting together. The majority opinion calls to mind a poem by Khalil Gibran that I am often asked to read when I officiate at weddings."

Ouch. How big a clown do you need to be before the liberals criticize you?

chickenlittle said...

Ouch. How big a clown do you need to be before the liberals criticize you?

You need to be big. I mean huge. Effigy-sized huge.

bagoh20 said...
This comment has been removed by the author.
lewsar said...

You need to be big. I mean huge. Effigy-sized huge.

is this the meaning of all those stupid giant puppets?

T J Sawyer said...

I suppose it is possible that one of Nancy Pelosi's ancestors was an early Wisconsin legislator and said. "We have to pass this statute to find out what's in it!"

Surely, someone must read this stuff when it first is submitted and say, "what does 'acting together' mean?"

rcocean said...

Its reminds me of the Federalist papers where Madison defends the constitution by quoting "Song of secret Love" and "Skip to my Lou".

a psychiatrist who learned from veterans said...

Prosser's reasoning is compelling. Abrahamson's dissent superiorly accuses the court as acting inappropriately superior. The poem is pretty. I suppose it supports Prosser's argument. For instance the marriage partners are told 'not to drink from the same cup,' that is for each to retain his or her own source of decision in 'acting together'. So like a correct interpretation in psychotherapy, the other dissents but then lays out reasons that support the interpretation.

Chris said...

Which year of Law School do students learn how to cite poetry in cases?

Almost Ali said...

May I assume that Chief Justice Shirley Abrahamson is essentially a perpetual blank? That her ink disappears almost immediately after it touches paper?

Y'all better run that fool out of office before she does some real damage.

Titus said...

Whatever the republican justice says I agree with.

chickenlittle said...

re: Poetry Cites in Legal Opinions:

Does Shakespeare count? link

G Joubert said...

Actually, and I hate to say it, I agree with Abrahamson when she says, "Curiously, the way the majority opinion interprets 'acting together,' the town boards are always acting separately. The majority reads 'acting together' completely out of the statute. What could the legislature have meant by the phrase? It means nothing, says the majority."

Why would the legislature say they were to "act together" if the respective board votes are to be counted separately, with either town able to separately deny the request? By this interpretation "acting together" is a nullity and means nothing.

On the other hand, I can see the majority's point that "...the municipality with the larger board will always have the upper hand."

So to me this is a close call that could go either way. But then I'm not licensed in Wisconsin.

What interests me more is the answer to why Jackson Township is all gung ho to vacate the road while Cedarburg is 180 degrees the opposite.

d-day said...

A poem? Unbelievable. I have lived to see a legal citation to something actually more self-aggrandizing, rage-inducing, and flatly stupid than citations to international law in interpreting our own.


WV: Regasms.

What comes after conservative pillow talk?

Godot said...

chickenlittle said...
re: Poetry Cites in Legal Opinions:
Does Shakespeare count?


The examples provided at the link appear to be prose rather than blank or rhyming verse. So barring further citations, no, Shakespeare doesn't count.
-

d-day said...

Ok, having now read the full opinion, I feel no qualms about my contemptuous feelings for the Wisconsin bar and electorate that keeps herhonor as Chief Justice.

I also need to point out that "PATIENCE DRAKE ROGGENSACK" is an awesome name.

NotquiteunBuckley said...

What are the possible (documented "on steriods" if "on steriods" wasn't idiotic and UnBuckley) outcomes of a William F. Buckley Jr. quote that begins "we"?

Or "We" as it were.

wv: hitest

NotquiteunBuckley said...

At 5600 columns, documented, there's a certain amount of, at one point once was called, albeit perhaps in naivete, "evidence."

IT was assumed conflicting evidence would arise; Existence being just that.

There are the books. 56. Plus. Some fiction. Most not.

TV.

WFB was accussed by some of not writing one masterpiece.

One Grand Encompass.

WFB chose instead to document calling it as he saw it.

Cruising Speed.

Overdrive.

edutcher said...

What rc said.

This is not unlike Ruth Bader Ginsburg quoting Euro law as a justification. Just worse.

Silly me, I thought American judges were supposed to use American law as well as state and federal constitutions.

I'm waiting to hear some Lefty expect Clarence Thomas to quote Tupac Shakur in a decision.

traditionalguy said...

Abrahamson says that the town with the most council members wins.

All the winner needs to do is add council members ...how about an extra 10 unpaid council members...but we raise you 11 members.

Wisconsin needs Prosser's decisions to make laws that will work. Abrahamson likes more fluid and uncertain law, which allows for gotcha games, and is way more fun than boring certainty.

traditionalguy said...

This is a good example of why courts are needed to interpret laws that the legislative branch did not finish writing,

Prosser does his job by judicially interpreting what the legislature poorly wrote in the code section until it works best.

Abrahamson wants to leave the mess in place as written to do whatever fun harm it does. Gotcha!.

All you strict constructionists should be agreeing with Abrahamson.

But it is better to let wise jurists do a wise job of rewriting a poorly written statute.

Wise Latinas, anyone?

Alex said...

he didn't mean to choke her.

Michael said...

Khalil Gibran? This is disqualifying. Recall. Take to the rotunda.

Paul Zrimsek said...

If there was no relevant precedent from the Belgian Court of Cassation to go on, I suppose this was the next best thing.

murgatroyd666 said...

> Ouch. How big a clown do you need to be before the liberals criticize you?

You need to be big. I mean huge. Effigy-sized huge.


Bigger than that, even. We have a precedent:

Bigger than Edward Moore Kennedy.

Ignorance Is Bliss said...

G Joubert said...

Why would the legislature say they were to "act together" if the respective board votes are to be counted separately, with either town able to separately deny the request? By this interpretation "acting together" is a nullity and means nothing.

I disagree. Acting together makes perfect sense. It says that neither town can make the road private on their own. Instead, they must both act to make the road private.

Freeman Hunt said...

Ha ha ha.

I read the full opinion.

I cannot believe that Wisconsin is stuck with that woman.

AllenS said...

Would a poem be considered case law or statute?

Freeman Hunt said...

Acting together makes perfect sense. It says that neither town can make the road private on their own. Instead, they must both act to make the road private.

I agree. Acting together as in working together in cooperation.

There's also the fact that Abrahamson's interpretation would make the law absurd and unworkable. Or does she think that the legislature intended an absurd and unworkable law?

Freeman Hunt said...

Maybe she can point us to a poem for the answer.

Curious George said...

I'm no lawyer (but I have seen them played on TV) but in my mind "acting together" means just what the majority stated. "Acting as one" is combining the votes into one total.

How did the court split? I couldn't find it.

Freeman Hunt said...

In describing Abrahamson's judicial philosophy, I would cite Kafka's The Trial.

Colin said...

Prof. Althouse, what is your view on the phrase in this context?

IMHO, the majority view is the one that makes the most sense. It is the entities acting together, not the components of the entities.

IANAL

Curious George said...

Freeman Hunt said...
Maybe she can point us to a poem for the answer.


To make private the road to a home?
Through case law the justices did comb
When Prosser cited the law
Shirley didn’t like what she saw
So her dissent was a stupid old poem

Colin said...

OMG! You were serious about the poem! I thought you intended some parody of touchy-feely liberal judging.

Nope! She really quoted a poem in her dissent.

Triangle Man said...

By golly she should have cited The Fountainhead.

Beta Rube said...

If votes were to be combined in these matters, why wouldn't a Village just go to a 6 member board and get their way every time?

Ron said...

I admit when I saw the phrase "acting together" I immediately thought of The Turtles "Happy Together". Clearly this blog is infecting me...

Freeman Hunt said...

Has it become standard to mention Khalil Gibran to indicate that one is down with popular pseudo-intellectualism? I think it has.

Ann Althouse said...

I think it's absurd to say that the 2 towns have acted together to change something when only one voted to change it. Both boards voted unanimously, and the outcome is determined by the fact that there were more voters on one board than the other and the votes were just thrown together in one pile.

It's as if, in Abrahamson and Gibran's married couple, they were considered equal participants, but the husband always prevails in a tie because he's bigger.

Ren said...

People criticizing this have clearly never read any of Justice Scalia's opinion. They are generally brilliant and highly entertaining, but also loaded with references like this one.

The same can be said for Judge Posner of the 7th Circuit...and many, many other judges. What Althouse doesn't tell you is that judges often reference and refer to whatever the hell they want...mainly because they can. Try doing a little bit of research before criticizing.

Freeman Hunt said...

Ren, usually that's done in conjunction with citing case law.

Phil 3:14 said...

Mom;
You need a hyperlink for "No-law Althouse"

Freeman Hunt said...

Also, Khalil Gibran? Feh.

And a poem about marriage? That doesn't even make sense.

Pogo said...

I cite Dr. Suess:

I do not like poems in my laws
I would not, could not, just because.
I do not like that highbrowed sham
I do not like them, Shirley Abraham


...son.

Michael said...

Can we be clear? Gibran's writing is not poetry. Thanks.

virgil xenophon said...

LOL Pogo's poem! And your right, Freeman. As SOON as I saw the Gilbran reference my eyes rolled up into the back of my head while muttering "Oh GOD no, here we go.."

Meade said...

 
2 justices diverged in a court,
And sorry I could not choke both
And be rid of each, long I stood
And stared hard at one as far as I could
To where she bizarrely began to quote trite hippie poetry.

(wv:: cherpen. "don't bring your singing bird to court. It cherpens the proceedings.")
 

Browndog said...

I think Traditionalguy is onto something.

Abrahamson is "bored".

Conventional methods of interpreting law, such as plain wording, legislative intent, and supporting case law wreak of traditionalism..

So very unprogressive-

How long before she weighs laws against the natural science of astrology?

Or better yet, the highly inspirational Madison public art?

What was the artist saying, and how does it speak to the matter before us?

Curious George said...

You were born together, and together you shall be forevermore.
You shall be together when the white wings of death scatter your days.
Ay, you shall be together even in the silent memory of God.
But let there be spaces in your togetherness,
And let the winds of the heavens dance between you.


Love one another, but make not a bond of love:
Let it rather be a moving sea between the shores of your souls.
Fill each other's cup but drink not from one cup.
Give one another of your bread but eat not from the same loaf
Sing and dance together and be joyous, but let each one of you be alone,
Even as the strings of a lute are alone though they quiver with the same music.

"On Marriage"

Give your hearts, but not into each other's keeping.
For only the hand of Life can contain your hearts.
And stand together yet not too near together:
For the pillars of the temple stand apart,
And the oak tree and the cypress grow not in each other's shadow.

Jesus Christ, could it not more clear people?

ALH said...

I think this was her way of trying to mend fences with Prosser. The poem is a metaphor for their relationship. He is the Oak, and she the Cyprus.

If Prosser wasn't such a woman hating bastard, he'd get that.

Freeman Hunt said...

Tip for aspiring judges:

Treat not citations as confessionals for bad taste.

Christopher in MA said...

"People criticizing this have obviously never read any of Justica Scalia's opinion. They are generally brilliant and highly entertaining, but also loaded with references like this one."

More shame he, then, Ren. I want my jurists to concern themselves with the law, and not use whatever idiotic pop culture reference they think better illustrates the point they are trying to make. Correct me if I am wrong, but I doubt that Louis Brandeis would quote a verse of "The Man on the Flying Trapeze" in an opinion.

And Khalil F'ing Gibran? Sloppy, shallow, worthless third-rate flatulence adored by people who think Robert James Waller is a man of letters.

Irene said...

There's also that Montana judge who cites the Beatles in his orders.

"I cannot believe Wisconsin is stuck with that woman."

The entire mess speaks for a mandatory retirement age or term limits. Wisconsin used to have a mandatory retirement age of 70 for judges, but that was changed 1970s.

Pogo said...

I would have been more impressed if she'd cite dadaist art, like the urinal by R. Mutt.

Jube said...

Sounds like Ms. A is in favor of abolishing the electoral college with that ruling?

Big Mike said...

Now Khalil Gibran is part of the jurisprudence of the State of Wisconsin?

Jim said...

A judge shouldn't commit the sins of poor tradecraft and narcissism. They will be recorded in searchable form, forever.

It's a solo dissent so there's no need to say "I view the law" and "I think" and I I I I. The judge should disappear in most opinions. It's a legal opinion, not a blog.

The diatribe against the majority's legal methodology is laughable; they are criticized for picking bits of statute and case law to support their opinion. That's basic legal interpretive method - not judicial error.

Finally, fn 14 is one of the most self-indulgent pieces of claptrap I've ever seen in an opinion. The inclusion of little bits of poetry to make a point is nice leavening in an otherwise dry opinion, making a rhetorical point in a clever way. Scalia does a lot of that, and his cites generally work, they advance his arguments. The inclusion of lots of poetry in an opinion is a bit self-indulgent but a judge can just about get away with it if it is reasonably well done, and disposes of the question at hand. See, e.g. Fisher v. Lowe, 333 N.W.2d 67 (Mich. Ct. App., 1983). That's borderline behavior but still within acceptable norms for a judge. But fn 14 starts with self-serving anecdote unrelated to the legal issue, and then concludes with a long poem, to make a fairly minor point that kinda-sorta-maybe says something about whether two towns acted in concert under the statute; but it doesn't really unless a term like "commercial intercourse" can be explained by a porn flick. The Turtles sang "Happy Together" and that sheds just as much light on the controversy at issue, as Khalil Gibran's poem. It's just bad tradecraft and bad form to write this way. Ick!

alan markus said...

@ 1:06:

"What interests me more is the answer to why Jackson Township is all gung ho to vacate the road while Cedarburg is 180 degrees the opposite"

It is not unusual to vacate "orphan" roads (some of which were platted in the 1800's) and cul de sacs - it took me awhile to find this one on Google Maps - Wausaukee Road runs near the Washington/Ozaukee County border - at one point it terminates, and then this 1/2 mile section starts again & borders a farm and a quarry - to the south is a river, so the road probably would not be extended further.

I think this situation points to the price we pay for having to deal with so many diverse governing units. Town of Cedarburg comes off as being "territorial" and uncooperative, and this is your typical town board "pissing" war.

The disputes between the Town of Cedarburg and it's neighbor to the east (City of Cedarburg) are legendary:
Town of Cedarburg violated open meetings law, complaint says

AllenS said...

Prosser needs to cite song. How about the Rolling Stones, Under My Thumb:

Under my thumb
The girl who once had me down
Under my thumb
The girl who once pushed me around

It's down to me
The difference in the clothes she wears
Down to me, the change has come,
She's under my thumb

Ain't it the truth, babe?


How cool would that be?

Irene said...

I think it is most interesting that Justice Bradley did not join in this dissent.

Calypso Facto said...

I cannot fathom how or why Abrahamson ventured so far into imagination to create her lone dissent opinion. The phrase "manufactured out of whole cloth" is the closest I can come to describing the process. She's not even getting much support from the left in the JS comments on this one.

Maybe she really has just slipped over into a mental-state (as opposed to the "mental" geographical state we're in) where some time in retirement to paint with watercolors and quote poetry would be the best thing for her.

Rabel said...

What an odd choice to have that poem read at your wedding. It seems to go against those silly old ideas that "two shall be as one" or "Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh."

At any rate, if your future spouse should make that choice, I'd say that it's a tip off that a pre-nup is definitely in order.

Freeman Hunt said...

Dear Emily Post,

I recently attended a wedding at which the officiant recited a poem by Khalil Gibran entitled 'Marriage.' Later I was made to understand that this recitation took place at the couple's request. What the poem describes, whatever it is, is not marriage. I spent over $100 on a wedding gift for this couple, only to find out that they weren't really getting married! How do I tactfully request that my wedding gift be returned?

Signed,
Penny Pincher at a Play Wedding

Carol_Herman said...

Highly overrated Khalil Gibran ... "shot his arrow into the air" ... And, by gosh, be golly ... it landed on Ambrahamson's chair.

Women is stupider than a dirt ball.

Now, when the road needs fixing ... who will go out and do it?

On the other hand? All private roads get no mail delivery. See if I care.

Carol_Herman said...

Meade, at 7:57 AM ... That's delicious!

Carol_Herman said...

"Two shall be as one."

Here's what my dad told me:

Learn to stand on your own two feet! If you were meant to be "coupled forever" ... you would have been born a Siamese twin.

F said...

I explained this case to my wife as well as I could at the breakfast table, after characterizing Abrahamson as "a California Whack Job." Her thought? "It should be against the law for a California Whack Job to hold public office." That about sums it up for me too.

mariner said...

Meade,
2 justices diverged in a court,
And sorry I could not choke both
And be rid of each, long I stood
And stared hard at one as far as I could

That's brilliant!

DADvocate said...

Abrahamson is officially nuts. What if the opposing view quotes a more reknowned poet? Who wins then?

BTW - I agree with the majority decision. Otherwise, it would behoove municipalities to have a larger number of members sitting on their boards/councils in order to win the "acting together" duels.

Chip S. said...

She quoted Khalil Gibran, but Shirley's real inspiration seems to be Nigel Tufnel. This town board goes to eleven.

Carol_Herman said...

"LOCAL" governments don't really exist. They're all fall under the umbrella of what is apportioned to states.

David said...

It's a beautiful poem.

I get all choked up when I read it.

Joanna said...

The vote wasn't really 5-3. It was more like 5-3-2.

Both towns had 5 voting members. Two members for a town didn't care enough about the voting items on the meeting agenda to show up to vote.

I'm not saying this means they were or weren't acting together. Just sayin that in this instance, the 5-town did not have an inherent #s advantage over the 3-town.

Zach said...

The first thing that went through my mind is that Khalil Gibran is not a native English speaker -- he was born in Lebanon.

Naively, I would expect that two independent bodies "acting together" would have to come to agreement, presumably by passing the same bill. An entity which had the combined membership of both bodies would be a third body. Call it the Voltron principle.

Zach said...

"Ah, but a man's reach should exceed his grasp, or else there would be a lot of dead justices."

--apologies to Robert Browning

chickenlittle said...

@David 12:25 LOL!

raf said...

Let's not be too scornful of Abrahamson's approach. Think of how many cases could use quotes from Atlas Shrugged. Such quotes would surely be much longer.

kcom said...

Here's the road in question. The view is facing due south.

Follow the street view straight ahead for 1/2 mile to get to the dead end. There seem to be only two houses on the whole street - the one at the corner of the main road and the one at the dead end end. Both look like farms and both are on the right (the Jackson side). The rest is just fields.

If you go to the overhead satellite view you can see that there's a large quarry off to the right (the southwest) beyond the farm buildings. Presumably that's the origin of Lannon Stone Products.

Ken said...

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