An unusual thing happened earlier this month at the Wisconsin Supreme Court. Ramon Gonzalez, an inmate, was tried for a fight in the Milwaukee County Jail. To assist the jury in identifying Gonzalez as a participant in the fight, the judge ordered him to show his teeth to the jury. This revealed the dental modifications for which Gonzalez had received the nickname “Platinum.” The single issue on appeal was whether compelling him to show his teeth violated his Fifth Amendment privilege against self-incrimination. The issue was not a difficult one, and the court decided 7-0 that Gonzalez’s rights had not been violated. State v. Gonzalez, 2014 WI 124.
The opinion was unusual because the only separate opinion, by Chief Justice Abrahamson, contained not a single word about the merits of the Gonzalez case. Rather, the Chief Justice described in detail recent changes by the court to its opinion drafting process that have the potential to make the recent “unusual” release of a significant number of opinions within the first five months of the term commonplace. On September 25 of this year, the court adopted a new procedure for opinion drafting.
As the “concurrence” (can a concurrence ignore the case in which it is issued?) and the court’s published Internal Operating Procedures explain, the court’s previous practice for preparing opinions was as follows:
- After oral argument, the court assigned opinions to the justices by drawing numbered poker chips.
- The justice assigned the majority opinion circulated a draft to the other justices.
- This draft opinion was discussed in the conference room by all seven justices. At conference, justices approved opinions, decided to concur or dissent, and revised opinions, until all opinions were satisfactory (in form, at least) to all seven members of the court.
- Each justice had a virtually unfettered right to “hold” an opinion indefinitely, preventing release of the court’s opinion
All that changed in September when the court voted internally to adopt a new procedure. The vote to adopt the procedure was 4 to 3, with Justices Crooks, Roggensack, Ziegler, and Gableman in favor and the Chief Justice and Justices Bradley and Prosser opposed. The written description of the new procedure is clearly a work-in-progress, obviously not drafted for public release, with parenthetical notes regarding describing the problems that the majority was trying to fix. The written procedure also contains gaps to be filled in as the term progresses. Continue reading this entry