Open Up the Wisconsin Supreme Court - Just a Little Bit More

Now that open rulemaking conferences have proved successful, it's time to open the court's decision-making conferences on petitions for review.

By Steven Levine

Now that the Wisconsin Supreme Court has opened to the public its conferences on rulemaking petitions, it's time for the court to do the same when it decides petitions for review in contested cases. Supreme court conferences should be open to the public when the court meets to grant or deny petitions to review decisions of the court of appeals. Let me offer some background and explain the reasons for my proposal.

In 1995 the court announced that it would hold its rulemaking conferences in public on a one-year trial basis. That trial period ended in September 1996, and - despite the prediction of dire consequences by opponents of open rulemaking conferences - the court decided to continue the practice based on its very favorable experience.

The court's practice is that directly following the hearing on a proposed rule, the justices move from their places on the bench to the counsel table in the center of the courtroom, where they discuss, debate, and decide on the proposed rule. Presenters during the rulemaking hearing, as well as the press and any other interested persons, are free to observe the entire process from the spectator seating area. Aside from this change, rulemaking continues as in the past.

Even some of those originally opposed to open rulemaking conferences seem to have mellowed to the idea. Former Chief Justice Roland Day (now retired) who presided over the first year of open rulemaking conferences, originally was opposed to the idea. He has since stated that the process worked "quite well." State Bar officials, who originally were reluctant to support the idea of open rulemaking conferences, also like the process. The Bar is one of the most frequent participants in supreme court rulemaking, and the open conferences provide it with direct feedback on rules it has proposed. If the court rejects a Bar rulemaking petition, the Bar can reconsider and perhaps amend the petition based on justices' comments made during the open conferences.

Now that experience has shown how beneficial open supreme court rulemaking conferences can be, it's time to expand on proven success. Court conferences on whether to grant review of a case decided by the court of appeals should be open to the public. Here's why.

Decisions on whether to grant a petition for review are the only supreme court decisions where the court never offers an explanation or reasoning for its actions. Opening up the court's decision-making conferences on petitions for review would greatly improve the entire process - for lawyers, for the public, and for the court itself.

Opening up the court's conference to the public might resolve a host of unanswered questions as to why the court denied a petition for review: Which criteria for review did the court believe were not met by the petition? Did the court feel the record was not sufficiently developed to merit review? Were the issues involved in the case just resolved in another case decided by the court, or were they involved in a case on which review previously had been granted? Was the petition denied because one or both of the parties had appeared recently before the court in another case? Why was the party's petition not persuasive enough - or not illuminating enough - to convince the court that review should be granted? And how could that petition have been improved?

For the lawyers involved in a case, as well as the legal community and public in general, opening up these conferences would be a tremendously educational experience. The votes and comments of individual justices could prove valuable when the next petition for review is written, as lawyers learn what issues and elements of a case lead each member of the court to vote to grant or deny a petition. The quality of petitions for review could greatly improve as a result of open conferences.

Open conferences also would improve the appellate process after the justices vote to grant a petition for review. Under current procedure, when the court grants a petition for review the parties are given no indication of which issue or issues were of interest to the justices. Particularly in a multi-issue case, an open conference would inform the parties of the issues to which they should pay particular attention. Open conferences would improve both the brief writing and oral arguments in the case.

Finally, open conferences would improve the performances of the justices themselves. Open decision-making promotes better preparation and discussion. When a judge or lawyer knows that his or her work is going to be scrutinized, better performance results. As Chief Justice Shirley Abrahamson once said, "Judges should be judged."

Are there any down sides to open conferences regarding petitions for supreme court review? Might open conferences distract the justices or lead to excessive politicizing of the judicial process? My own experience says no. In 23 years as a lawyer for the state's Public Service Commission, I have seen every utility rate case, every construction case - virtually every case about anything - decided by the commission in public at an open meeting. The commissioners engage in a reasoned, public discussion of the issues based on the record made at an administrative hearing. There is no posturing, no politicizing, no grandstanding. There is nothing about open decision-making which is inconsistent with good decision-making.

The supreme court did not open its rulemaking conferences until more than 15 years after the idea was first publicly proposed in 1980, and it probably will be a long while before open conferences on petitions for review occur. But they will happen, if the public and the legal community want them to happen. Supreme court candidates who favor open conferences can raise the issue during their campaigns, just as the issue of open rulemaking conferences was raised by some candidates in the 1980s and 1990s.

Closed meetings and closed records are seldom, if ever, in the public's interest. The governmental decision-making process - and the public's confidence in that process - is enhanced when decisions are made in public. So, let's have the supreme court open its conferences when it meets to decide petitions for review. Open conferences can and will happen, if we want them to.

Steven Levine has been an attorney for the Public Service Commission of Wisconsin since 1975. He has served as a supreme court law clerk and two-term member of the State Bar Board of Governors. Groans or applause for this article may be addressed to him via email.

Wisconsin Lawyer