March 9, 2006

"The Wisconsin Supreme Court is quite vigorously asserting itself against the other branches of state government."

The Milwaukee Journal Sentinel has excerpts from a speech by 7th Circuit Judge Diane Sykes, complaining about the Wisconsin Supreme Court (where she was once a justice):
In a series of landmark decisions [in the past year], the court:

• Rewrote the rational basis test for evaluating challenges to state statutes under the Wisconsin Constitution, striking down the statutory limit on non-economic damages in medical malpractice cases;

• Eliminated the individual causation requirement for tort liability in lawsuits against manufacturers of lead-paint pigment, expanding "risk contribution" theory, a form of collective industry liability;

• Expanded the scope of the exclusionary rule under the state constitution to require suppression of physical evidence obtained as a result of law enforcement's failure to administer Miranda warnings;

• Declared a common police identification procedure inherently suggestive and the resulting identification evidence generally inadmissible in criminal prosecutions under the state constitution's due process clause;

• Invoked the court's supervisory authority over the state court system to impose a new rule on law enforcement that all juvenile custodial interrogations be electronically recorded....

The terms "modesty" and "restraint"- the watchwords of today's judicial mainstream - seem to be missing from the Wisconsin Supreme Court's current vocabulary. Instead, the court has adopted a more aggressive approach to judging.


Jake said...

The Wisconsin Supreme Court is legislating laws, pure and simple. Such legislating is unconstitutional under the Wisconsin constitution.

They all should be impeached.

MadisonMan said...

Ann, I know you think Ms. Sykes would be an interesting candidate for US Supreme Court -- I wonder if her giving speeches like this is a way of keeping her name 'out there' so fellow conservatives see that she's fighting the fight. I confess I don't normally follow the speechmaking of Judges -- is it a common occurrence? I don't recall much press on past Alito or Roberts speeches during their respective nominations.

Of the 5 in the list you highlight, I'd say the last is the least objectionable to me. I should think all interrogations would be electronically recorded these days!

me said...

Question: Are the Wisconsin Supreme Court justices elected or appointed? If they are elected, take it to the voters -- if they care about "activist judges" they'll vote'em out.

CB said...

This is shockingly bad behavior. Abuse of judicial power is one of the most frightening things for a society to face when the means of checking that power (constitutional amendments, impeachments, etc.) are insufficient. The citizens are left with that sick feeling of helplessness that is the hallmark of authoritarianism.

SippicanCottage said...
This comment has been removed by the author.
MadisonMan said...

Question: Are the Wisconsin Supreme Court justices elected or appointed? If they are elected, take it to the voters -- if they care about "activist judges" they'll vote'em out.

From the website:
The Supreme Court is composed of seven justices, elected to 10-year terms in statewide, non-partisan April elections. Vacancies are filled by gubernatorial appointment and the appointee is required to stand for election to a full 10-year term the following spring. The Wisconsin Constitution limits justices to running one at a time.

I don't recall a justice failing in a bid for re-election. Judge Crooks' (almost a good a moniker as Cardinal Sin) term ends this year, but I've heard nothing about a run for the seat. They are pretty low-key.

Anonymous said...

Just out of curiosity, does anyone have a breakdown of the seven judges by political affiliation?

And is there a correlation between the affiliation and the voting on the court?

alkali said...

I would note that one of the traditional functions of the state law schools -- particularly, of their law reviews -- used to be to comment critically on the decisions coming out of their respective state courts. (Private law schools did it too: e.g., Harvard did it for Massachusetts.)

It's probably been ages since the Wisconsin Law Review has published anything other than a student note or comment relating to Wisconsin court cases. (Likewise Harvard, Michigan, Texas, etc.)

Anonymous said...

Shirley S. Abrahamson is the Chief Justice. She was appointed by Governor Lucey. Democrat.

Jon P. Wilcox was appointed by Governor Thompson. Republican.

Ann Walsh Bradley - judge from Madison. Democrat.

N. Patrick Crooks - described as "David Souter-like." Democrat?

David Prosser Jr. was appointed by Gov. Thompson. Republican.

Patience Drake Roggensack - From Madison. Liberal. Democrat?

Louis B. Butler was appointed by Gov. Doyle. Democrat.

Any errors?

Does this explain the results?

me said...

Plus they rewrote the punitive damages statute.

sean said...

Well, the New York Court of Appeals Chief Judge, Judith Kaye, said that constitutional interpretation was a dialogue between the state's highest court and its legislature. (I would translate this into Thucydidean terms by saying a dialogue between the few and the many.) I have no reason to doubt that Wisconsin Supreme Court reflects the views of the elite--although I confess that I have never discussed theories of tort liability with any of my fellow members of the elite--and that therefore the Wisconsin Supreme Court is doing its job. Maybe too aggressively, however, which might be Prof. Althouse's point. Judge Kaye said "dialogue."

Ann Althouse said...

Sean: "Maybe too aggressively, however, which might be Prof. Althouse's point."

Did I make a point?

Still searching said...

This discussion borders on silliness. More seriously, though, it's premised on fundamental misconceptions.

Someone writes that the court rewrote the punitive damage statute. HOW? Has anyone read their opinion? Here's the link for it if anyone cares to read it: You can think court decisions are good or bad, but try to at least take an informed position.

Someone else asks for the justices' political affiliation. WHAT? Justices, as members of the judiciary, are precluded from maintaining political affiliations.

Some else asserts that the supreme court speaks for the elite? HUH? Anyone moderately versed in comparative institutional analysis knows that the judiciary is bullwark for the voiceless.

Come on guys, stop buying into the newspaper headlines and "activist" catchphrases.

TopCat said...

"Some else asserts that the supreme court speaks for the elite? HUH? Anyone moderately versed in comparative institutional analysis knows that the judiciary is bullwark for the voiceless."

Yeah, just as the Florida Supreme Court (packed by Lawton Chiles) stood the Constitution on it's head saying Gore coulda, shoulda, woulda won, so that's the way they were ruling, while the more rational and intelligent US SCOTUS, dominated by Republican appointments, returned the Presidency to Bush, who won it fair and square (thanks to Ms. LaPoore in Palm Beach County).

E said...

Still Searching has a point, it is obvious from the posts that most of the posters are unfamiliar with the actual opinions, the applicable Wisconsin case law, or the Wisconsin Supreme Court. If they were, they'd see that Judge Sykes has, in varying degrees, mischaracterized each opinions she criticizes.

Additionally, pointing to a few opinions as evidence that the Court is lawless as a rule flips everything around. No one cites the multitude of criminal convictions that were upheld, the holdings for insurance companies or businesses, or rulings that provide clarity to litigants in Wisconsin. If you're going to criticize a court's body of work, look at the entire body of work, not just the few opinion with which you disagree.

Brylin: Roggensack would hardly be described as a liberal, and she was elected.

As always, I'm glad the host just block quoted without her legal analysis. I don't know if it's intended or not, but it's a subtle way of endorsing a view without having to critically analyze whether the statements are correct.

Anonymous said...

Still Searching, If you don't think some judges are political, then check here.

Ever heard of the "Magnificent Seven?"

E, I put a ? after Roggensack because I couldn't find a political affiliation. I did find one blogger from Wisconsin describe her as liberal. The fact that she was elected doesn't speak to her political leanings, does it?
How did she vote on the issues?

And your method of analysis of these recent court decisions is ...?

I would think that you would cite the decisions, see how each judge voted and either confirm or refute my hypothesis. Is that possible or is it too cumbersome?

Simon said...

That's a heck of a coincidence! I have blogged several times recently in support of a Sykes nomination, including (hence the coincidence) just today!

Still searching said...


Someone asked about the justices political affiliations. Judges are precluded from having political affiliations. I never said judges weren't political.

Still searching said...

As for a case analysis:

In Thomas, the lead paint case, the supreme court relaxed the causation requirement ONLY with respect to the precise manufacturer of the lead pigment that injured the plaintiff. The court DID NOT relieve the plaintiff from proving that he was injured by lead pigment and DID NOT relieve the plaintiff from proving that the lead pigment manufacturers marketed or promoted the specific lead pigment that injured the plaintiff. The court's holding was premised on the fact that there are certain products that harm people that cannot be traced back to a specific manufacturer (like generic drugs, lead pigment, etc.). The court's holding relied on precedent from the 1980's that allowed children with cancer to sue drug manufacturers of the popular 1950's and 1960's morning sickness pill called DES.

For those chicken-littlers out there who are convinced that the sky is falling, note that the case in Thomas was before the supreme court on summary judgment (meaning that NO TRIAL had taken place). Also note that the supreme court reserved ruling on constitutional issues. That means that after trial, the defendant pigment manufacturers can go back up to the supreme court and say that it is unconstitutional to hold them responsible for causing the plaintiff's injuries.

JLR said...

Re Simon -- not to mention the coincidence of my posting a blog comment discussing Judge Sykes, prompting your blog post of today? :-)

You can find that comment by clicking on this link.

Simon and I are in agreement: Judge Diane Sykes would make an excellent nominee for 111th Supreme Court Justice, and if President Bush or another Republican is in the White House when such a vacancy arises, Judge Sykes would be a superb choice.

Still searching said...

As to Knapp II, the exclusionary rule case, the supreme court held that the police cannot intentionally subvert people's constitutional rights in order to obtain physical evidence of a crime. This means that the cops cannot intentionally decide to not "read you your rights" in an attempt to obtain evidence against you. Why this is controversial, I have no idea.

Still searching said...

As to Dubose, the supreme court held that police show-up procedures are inherently suggestive. This means that when the cops have a suspect, they cannot bring that suspect in front of the victim and ask "Is this the guy?" The reason for the court's decision is that it is unreliable. Victims are likely to inculpate whoever the police marshal before them. So, the court said, to prevent convicting the innocent, show-ups cannot be done unless otherwise necessary.
Makes sense to me.

Still searching said...

AS to Ferdon, which supposedly "rewrote" the rational basis test, there is no uniform understanding just what "rational basis" means. Does it mean the courts MUST construct a basis for the legislature to do something? Some courts say yes. Does it mean that the courts LOOK for whether the legislature had a basis to do something? Other courts say yes. The supreme court in Ferdon said the latter. What this will mean remains to be seen.

me said...

Still searching, I have read the punitive damage decisions. The original common law was derived from the Restatement of Torts. The Restatement required an intent to cause injury, or a reckless disregard that resulted in injury. The statute eliminated recklessness, and left only wilful or intentional conduct. The Court through linguistic gymnastics interpreted the statute as allowing for reckless conduct, and also ignored the Restatment's requirement for an injury.

In Miller Park, I think there was a way to get the punitive damages to fit within the statute based on the facts of that case. However, the reasoning by the Court is what is suspect. The Court created a right to a safe place, and said there was an intentional disregard for the right to a safe place, where there was no evidence that any one knew for a fact that the crane would collapse. The decision put the cart before the horse.

Also, below the plaintiffs argued, for insurance purposes, that there was no intentional act. Then, after the verdict the plaintiffs argued the opposite.

Still searching said...

As to Jerrell CJ, the court noted that the substantial weight of the authority showed that children when pressed by police will tend to agree with whatever the police say. That meant that significant number of children were being convicted from crimes they did not commit. To prevent this, the court established a rule of evidence that said that juvenile confessions will be admissible only when the confession occurred with an attorney present. This is no different than when the court stepped in and said that lie-detector tests are nothing but b.s. and BANNED them from the courtroom.

Anonymous said...

Still Searching, in the Thomas case, how did the judges vote? Same with Knapp II. How did they vote?

You analyze the case and give us your opinion that the court is right. That's fine - that's your opinion. You're entitled to it.

But I'm trying to hypothesize why the court has recently issued a series of landmark decisions.

My hypothesis is that this court is making some political decisions.

That is, in cases where the subject matter reflects a substantial difference between the policy positions of the two political parties, the decisions reflect the politicization of the judiciary.

So, first you need to know about the poltical leanings of the judges. Not their political affiliation necessarily, but how they alligned in the past, who were their sponsors, their roots. I have tried to research this and posted the information I found.

Then you take the individual case and see how these judges voted.

For example, Thomas is a lead paint case. Democrats receive a lot of money from trial lawyers. Judging from what you posted about Thomas, the trial lawyers would be happy with the decision.

How did the judges vote in Thomas?

Still searching said...


The court never said that there didn't have to be an injury, and the common law did not require that a person intend to injure another for punitive damages to be appropriate.

Under the common law, there were to ways to get puntiive damages: (1) showing the person acted maliciously (intended to injure); or (2) showing that the person acted in a willful, wanton, or RECKLESS DISREGARD OF THE RIGHTS OF THE PLAINTIFF.

In 1995, the legislature stepped in and rewrote the statute. Under the statute, punitive damages were appropriate if you could show: (1) the person acted maliciously (intended to injure); or (2) that the person acted in an INTENTIONAL DISREGARD OF RIGHTS. The ONLY change was the switch from the common law phrase of RECKLESS to the statutory phrase of INTENTIONAL.

The court ONLY construed what "INTENTIONAL" meant and held that it requires a person to act purposefully or with knowledge that a consequence is practically certain to happen.

The court DID NOT hold that there need be no underlying injury. That issue was not before court in either Strenke or Wischer (the Miller Park case). However, that issue has already been decided, and the court has unanimously held that puntive damages are only available if there is an underlying injury.

Still searching said...


The Thomas majority was Butler, Bradley, Crooks, and Abrahamson.

Also note that Thomas dealt with an issue of common law. That's the court's law until the legislature takes it away. So, there's nothing wrong with the court when shaping the common law to choose between competing policies. In Thomas, the polices were whether to allow an innocent plaintiff recover for his injuries at the expense of allowing potentially negligent paint companies (who potentially knew that lead paint was hazardous as early as 1904 but continued to produce it anyway because it was their "bread and butter"). The court chose the former, and it's hard to argue otherwise.

Anonymous said...

Still Searching, Since you feel the legal arguments are important, you may want to duck or ignore my hypothesis.

The corollary of my hypothesis is that judges make up arguments to suit their pre-existing policy preferences.

Still searching said...


Have you read Thomas?

It's a lot to digest, and ultimately it comes down to a fairness question. What do you think was fair?

me said...

Still Searching, the Court held that a disregard of "rights" was sufficient, and that a disregard of "rights" did not require harm or an injury, as the Court of Appeals held. That is why the SC reversed the Court of Appeals. The Court clung to a theory that the plaintiffs had a right to safe place, and the defendants intentionally disregard the "right" to a safe place by running the crane. The problem with that theory is that the defendants did not know the crane would collapse, or if it did, that it would hit the other crane. There was no evidence that the defendants knew that by running the crane they would intentionally disregard any "right" to a safe place.

The Court imposed a reckless standard in lieu of an intentional standard, and failed to follow the common law which equated a disregard of rights to harm or injury.

Like I said, had the Court taken a different tact, based on the apparent inconsistent statements of one of the defendants regarding wind speeds, it may have been able to thread the needle, and follow the clear legislative intent and commmon law.

Hopefully, it was an anomoly based on the bad facts.

Anonymous said...

Still Searching, Butler, Bradley, Crooks, and Abrahamson. Three Democrats and a "Souter-like" judge.

A 4-3 decision with the Democrats voting in a way that would make trial lawyers happy.

Sounds like a confirmation of my hypothesis.

What about the other cases?

Anonymous said...

Still Searching, My hypothesis does not require any analysis of "fairness" of the decision. Only a view to the politics of the judiciary.

It also renders meaningless even the reading of the decision. Just go right to who voted which way.

See what I mean?

Anonymous said...

Another corollary of my hypothesis is that it is very important to have the ability to appoint the judges.

Still searching said...


Your hypothesis is nothing new. As long as there have been judges, there have been people trying to guess which way they'll go. My point is that judges should be judged based on what they WRITE, not on what the OUTCOME of the case is.

Your hypothesis is partly why so many were upset with Justice Crooks last year. People thought he was a staunch conservative (based on his political background), yet he agreed with some very progressive (to avoid argument, you can call them "liberal") ideas.

So, while I appreciate your hypothesis and all the work you've done to substantiate it, I just don't put much weight on it. Individual justice's opinions change and evolve over time as they see how the law affects people. Justice Crooks is a prime example. There had been no change in his political backing prior to last term, yet he took very different views on things.

In the end, trying to predict which way judges will go is like gazing into a crystal ball. You may get lucky once in a while, but you'll surely get burned.

Anonymous said...

What about the votes in the other cases?

I would bet we find the same results.

Anonymous said...

"Lucky once in a while?"

Then why was there so much angst among Democrats about Alito?

What do you think would happen if a Grutter-like case gets to the Supreme Court now?

My observation is that it is unfortunate that the judiciary has become so politicized.

Still searching said...


Punitive damages were never anchored to an "intent to harm." At common law, to get punitive damages, there had to be an underlying harm, but punitive damages were also meant to punish an individual for either intending to hurt someone or for recklessly disregarding someone's rights.

Now, under the puntiive damage statute, there are two distinct ways to get punitive damages: (1) show an intent to injure or harm; or (2) show an intentional disregard of rights.

Even at common law, you didn't HAVE to show an intent to harm. You could show a reckless disregard of rights. Now, you have to show INTENTIOINAL disregard of rights. The requirement of showing a transgressoin of "rights" has remained the same. The legislature did not change that.

Still searching said...


The angst the Democrats had about Alito is because they were trying to predict which way Alito would vote based on thing's he'd WRITTEN. According to the Democrats, Alito's writings foreshadowed case outcomes that they fear. That's why they kept asking him why he had written this or why he had written that.

Unfortunately, that debate is not occurring in Wisconsin. People aren't reading what the Wisconsin Supreme Court has written, they're looking for what the outcome of the case was and who sided with the majority. From that fact alone (or from circumstantial evidence regarding their prior political background), the citizens of this state are forming opinions about the Justices themselves. This, I submit, is error. The analysis should begin and end with what the Justices write. The persuasiveness of their reasoning should guide anyone's views of a jurist.

That's my humble opinion, and, heck, I'm probably wrong.

me said...

It goes back to how the Restatment defined "rights" which was synonomous with injury or harm. Also, you fail to explain how the reckless conduct of the defendants in Miller Park became intentional, other than by judicial fiat. Where was the evidence that the defendants knew the crane would collapse, and knew that the crane would hit the other crane, thereby creating an unsafe work environment for those on the other crane?

Anonymous said...

It used to be that political parties had multi-dimensional aspects. For example Southern Democrats were conservative.

No longer.

Look at what Kos is attempting to do with Lieberman.

Another example is Pennsylvania and Casey.

If you think Iraq is right or abortion is wrong there is no room for you in the Democratic Party.

Judges are creatures of politics and are swept up in this polarization as well.

And court decisions become predictable without reading the opinions, unfortunately.

Still searching said...


Look in Justice Roggensack's concurring opinion.

And by the way, with Brylin's theory in mind, note that Justice Roggensack was a Republican prior to sitting on the Court of Appeals (where she was prior to the Supreme Court) and is married to a prominent medical doctor. Also with Brylin's theory in mind, note that Justice Roggensack routinely sides with Justices Wilcox and Prosser, both of whom are widely known to be Republicans. Heck, Prosser was the Republican Speaker of the House in the mid-1990's.

Does the fact that Justice Roggensack sided with the majority in the Miller Park crane case help?

Still searching said...


Without having read the text of the opinions how is it possible to have an informed opinion? Why would anyone let their opinion be driven by what is heard in the media? I ask the latter question because I suspect that your opinions are largely shaped by what you hear or read in the media about what the court did or did not do.

I think it's unfortunate that this is how people are judging the judciary (i.e. not on what the judges have said but on what others have said they said). And it's unfortunate that people are judging the judiciary based on who they side with. These superficial observations only serve to water down the analysis.

In the end, I suppose the question is, are we that cynical? LIke I said, this is just my views, and I'm probably wrong.

Still searching said...


No Restatement (beit First, Second, or the newly minted Third) has ever defined what "rights" means. If it has, I'd love to see it, because the authors of that are smarter than the Founding Fathers.

me said...

In one of the comments, they equate rights to an injury or harm. And that was the same philosophy of the often quoted Marquette Law professors in all the punitive damage cases pre-dating the statute.

In any event, assuming all it takes is a disregard of rights (which ignores the previous case law, legislative history, and the Restatement) you still fail to identify evidence of any intent to disregard the rights of those who were killed. There was simply no with any certainty the crane would collapse or where it would collapse. Also, if that was the case, why did the plaintiffs take the position that there was no intent on the part of the defendants on coverage motions before the trial court?

I feel for the families, and no amount of money will compensate them for their terrible loss. But the Court used a bad set of facts to allow punitive damages not contemplated by the statute given the lack of intentional conduct.

Simon said...

Just to add to this discussion - I think it's really quite important to read the full text of Sykes' remarks, not just the op/ed. When I read the op/ed, I thought it seemed disjointed and underreasoned, which makes a lot of sense when you read the real thing and realize that a 20 page speech has been jammed into a half-page newspaper column.

Still searching said...


I wish it were as clear as you say it was. If the legislative history were so clear, then explain Rep. Green's comments?

If the Restatement were so clear, why would it require construction from Marquette Law Professors?

Yes, the plaintiffs' lawyers in Wischer made strategic blunders that nearly cost them the case at the court of appeals. But the evidence in the Wischer case that showed that the defendants acted in an intentional disregard of rights was as follows:

"the jury had before it testimony that Noel, who could have called off the lift, was aware that doing a lift in winds in excess of 20 miles per hour was unreasonably dangerous, even without doing any wind-load calculations. Additionally, the jury heard testimony that Noel was aware that at the time of the accident, wind speeds exceeded 20 miles per hour. This is sufficient evidence from which a reasonable jury could find, by the clear and convincing standard of proof, that MHIA was aware that its conduct was substantially certain to result in Wischer's rights being disregarded."

Roggensack, J., concurring, P76.

Simon said...

"in any event, assuming all it takes is a disregard of rights (which ignores the previous case law, legislative history, and the Restatement)"

By which one hopes you mean, the history of the legislature's enactments, rather than the legislative history of a given act...

Unknown said...

The most interesting aspect of the Wisconsin Supreme Court's recent jurisprudence is its interpretation of certain clauses in the constitution granting broader rights than the companion federal constitution.

Also, someone wrote that Justices Roggensack and Crooks were Democratic appointments and/or indicated that they are Democrats - incorrect.

I cannot sleep well.

Simon said...

"The most interesting aspect of the Wisconsin Supreme Court's recent jurisprudence is its interpretation of certain clauses in the constitution granting broader rights than the companion federal constitution."

Well, I don't have a problem with that, per se, and I'm not sure that Sykes is saying that she does, either (see speech at p.17). Indeed, quite the contrary, I fully encourage the dawning realization that the Federal Constitution is not a Mr-Fix-It which absolves the people of writing and maintaining appropriate Constitutions for their states. But what I think Sykes is objecting to is the sudden, unprecedented, largely unexplained, and baldly results-oriented deviance from past practise:
"Before Knapp, the Wisconsin Supreme Court had repeatedly held that in the absence of a meaningful difference in language, intent, or history, the state constitution’s Declaration of Rights should be interpreted in conformity with the United States Supreme Court’s interpretation of parallel provisions in the Bill of Rights. The language of the state constitutional right against compulsory self-incrimination is virtually identical to the Self-Incrimination Clause of the Fifth Amendment; the court had declined many previous invitations to interpret the state right more expansively than its federal counterpart.

Not this time. In round two of Knapp, the court accepted the defendant’s invitation to—as the court put it—“utilize . . . the Wisconsin Constitution to arrive at the same conclusion as in Knapp I.”19 This language is revealing for its pure, unvarnished result orientation. The court’s decision rests not on the language or history of the state constitution’s self-incrimination clause but on the court’s own policy judgment flowing from an expansive view of the deterrence rationale of the exclusionary rule.
(speech at 15-16)