Dissenting in State v. Weber, the first decision filed this term, Justice Ann Walsh Bradley worried that readers might misconstrue the opinion authored by Justice Ziegler as the “majority opinion.” Justice Ziegler’s opinion appeared at the front of the published decision—where one would expect to find a majority opinion—but it should be viewed, Justice Bradley specified, as a “lead opinion,” devoid of any precedential value. Acknowledging that one would search in vain for the definition of a “lead opinion” in the court’s Internal Operating Procedures, Justice Bradley offered her own explanation: “We have said ‘that a lead opinion is one that states (and agrees with) the mandate of a majority of the justices, but represents the reasoning of less than a majority of the participating justices.’”
She was quoting a definition published just a few months earlier in a joint dissent that she had authored with Justice Abrahamson in State v. Lynch. Here the need for a definition seemed even more pressing, as the initial opinion in the decision—written by Justice Gableman and designated by the court as the “lead opinion”—disagreed with the outcome of the court’s own ruling. Attaching the label “lead opinion” to one at variance with the result of the court’s decision puzzled Justices Bradley and Abrahamson, who did not shroud their exasperation: “Reading Justice Gableman’s writing, designated as the ‘lead’ opinion, … makes us feel like we’ve stepped into ‘the Twilight Zone.’” Such passages in their joint dissent—striking to court watchers—drew a similarly remarkable condemnation from Chief Justice Roggensack: “defamatory labeling of colleagues’ writings” “bottomed in a desire to injure rather than to inform.” But she did not attempt to explain the casting of Justice Gableman’s writing as the “lead opinion.”
Putting aside the disquieting rumbles of acrimony on the court, one problem for the legal community posed by fractured decisions containing “lead” opinions is potential confusion—especially so in Lynch, but in other cases as well. At times, noted Joseph Kearney, Dean of Marquette University’s Law School, “it can be unexpectedly difficult to tell whether something is an opinion of the court. I am referring to instances where apparently someone was assigned to write for the court and ended up not only not commanding four votes but also confronted with a separate writing that did get four votes.”[1] In such a case, what had been circulating as the majority opinion would metamorphose into a lead opinion, and what had been gestating as a concurrence (or even a dissent) could emerge as the majority opinion, resulting in a decision with both a lead opinion and a majority opinion. Anderson v. Aul presented a transformation of this sort, and it seemed sufficiently unusual to prompt Justice Ziegler to find room in her concurring/majority opinion to “clarify” the court’s position.[2]
Confusion could also arise when the court filed an opinion containing portions that were accepted by a majority, and other portions endorsed by only a minority, resulting in a hybrid opinion with both “majority” and “lead” segments.[3] Awkward, too, were published decisions with two concurrences that disagreed over the terms of the ruling with which they were both, ostensibly, concurring. For example, in Johnson v. Masters, Justice Ziegler’s concurrence stated not only that she rejected the construal of the majority opinion presented in Justice A.W. Bradley’s concurrence, but that if Justice Bradley’s reading were deemed correct, the majority opinion would lose the support of Justices Ziegler, Roggensack, and Gableman and thereby sink to the status of a lead opinion.[4]
The “fragmented rationales” in these cases represent “a problem for everybody,” observed former Milwaukee County Circuit Court Judge Michael Brennan, Chair of the Judicial Selection Advisory Committee, in a discussion of State v. Forbush. Lower courts and attorneys rely on the justices for guidance, and thus “when extremely smart appellate lawyers may differ on what the holding is, that would seem to be a problem!” In short, uncertainty produced by “so many splintered views can mute the decision’s effect, and seems, at least in part, to be in tension with the common law method the courts employ.”[5]
Should a lead opinion escape the sources of confusion described above, it will still suffer from an absence of precedential value. Justices rarely even propose that a lead opinion could serve as precedent—as Justice Crooks did in Tomczak v. Bailey (1998)—and such efforts have gained little traction. Justice Geske rejected Justice Crooks’s suggestion in Tomczak, and the prevailing view has continued to resemble Justice Roggensack’s statement in Town of Madison v. County of Dane (2008): “The lead opinion has no precedential value because the concurrence does not join the lead opinion’s statutory interpretation.” Or, as Justice A.W. Bradley reiterated in DeBruin v. St. Patrick Congregation (2012): “Accordingly, because no opinion has garnered the vote of four justices, nothing set forth in any of the opinions has precedential value.”[6]
If decisions with lead opinions can be difficult to fathom, and in any case set no precedent, the recent spike in the frequency of these decisions is regrettable. As shown in the following table, the number of decisions with lead opinions, as a percentage of all decisions filed each term, averaged just 2.3% between 1996-97 and 2014-15—and never exceeded 6.6%. In 2015-16, however, the figure jumped to 14%, and through mid-May of the current term it sits at 10%. Whether such levels persist in the summer of 2017 (and beyond) remains to be seen, but they confirm the impression (formed by some justices themselves) that lead opinions have multiplied of late.[7]
(click on the table to enlarge it)
Whatever else may have factored in this change, it required an increase in the number of separate opinions per decision. By far the largest volume of these concurrences and dissents has come over the years from Justices Abrahamson and A.W. Bradley, and one is scarcely surprised to find their contributions surging in 2015-16 and so far in 2016-17. However, these two liberals have been comparatively isolated ever since Justice Gableman replaced Justice Butler in 2008-09, and no matter how many separate opinions they write, they alone cannot account for the court’s growing difficulty in finding four justices prepared to endorse a majority opinion. More significant than the abundant separate writings of Justices Abrahamson and A.W. Bradley may have been the replacement of Justice Crooks by Justice Rebecca Bradley in 2015-16, and Justice Prosser by Justice Kelly in 2016-17.
The first of these two transitions is the more noteworthy for our purposes, as Justice Crooks authored or joined separate opinions less often than any other justice under consideration. In fact, he did so in only 12% of cases from 2008-09 through 2014-15. His replacement, Justice Rebecca Bradley, authored or joined separate opinions more than twice as frequently—28% of the time in 2015-16 and so far in 2016-17. The court’s newest member, Justice Kelly, has surpassed even that mark, authoring or joining separate opinions in 31% of decisions in which he has participated. Although the sample size for Justice Kelly is small, his figure of 31% not only exceeded the average of 20% for the justice he replaced (Prosser), it is larger than the percentage in any term since 2008-09 for any of the other four conservatives (Justices Roggensack, Ziegler, Gableman, and R. Bradley). Click here for a complete set of figures for all nine justices.
Thus it appears that the increasing number of severely fractured decisions springs not only from the extreme polarization between liberal and conservative justices—in evidence long before the spike in lead opinions—but from the propensity of the court’s newest conservatives to author or join separate opinions at a higher rate than the two justices whom they replaced. The three other conservative justices (Roggensack, Ziegler, and Gableman) have not participated in separate opinions at a dramatically higher rate in 2015-16 and 2016-17 than they averaged from 2008-09 through 2014-15—essentially no change for Justice Roggensack and a decrease for Justice Gableman, with Justice Ziegler’s average climbing from 21% to 28%.
Of course, not every concurrence splinters a decision, as a justice might simply be voicing criticism of a dissent (as Justice Roggensack did in Lynch) or discussing a tangential point. But it is difficult to imagine the growing share of fractured decisions without justices authoring or joining separate opinions more frequently than they did just a few years ago. And here, the addition of Justices Kelly and R. Bradley may be as significant as the widening stream of concurrences and dissents flowing from the offices of the court’s two liberals. For the moment, this remains a hypothesis, as our tables do not specify the nature of individual concurrences—which we would need to know in order to measure exactly how often any particular justice contributed to the fragmentation of decisions. But if the court continues to issue such decisions at the current rate, it may be worthwhile to take a longer look at the separate writings of each justice.
[1] Joseph Kearney, “The Wisconsin Supreme Court: Can We Help?,” Marquette Lawyer, Fall 2015.
[2] In Vivid v. Fiedler, Justice Bablitch authored what the justices called the “lead opinion.” However, he acknowledged that a concurrence (written by Justice A.W. Bradley and joined by Justices Abrahamson, Steinmetz, and Geske) “really should have been written as the majority opinion …”
[3] See for example City of Janesville v. CC Midwest; Lassa v. Rongstad; and State v. Greve.
[4] See also Justice Ziegler’s separate opinion in State v. Valadez.
[5] Michael Brennan, “Forbush and the Riddle of a Fragmented Court,” guest post for On Point, May 24, 2011.
[6] Dissenting in State v. Weber, Justice A.W. Bradley explained why she characterized Justice Ziegler’s writing as the “lead” opinion: “I am concerned that without this cue, the reader may mistakenly believe that the lead opinion has any precedential value.”
[7] See the joint separate opinion by Justices Abrahamson and A.W. Bradley in State v. Lynch.
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