Did We Lose Something?


The Wisconsin Supreme Court announced recently that any Court of Appeals decision which has been overruled, even in part, no longer holds any precedential value unless the supreme court expressly states that it has left some portion intact.  Blum v. 1st Auto & Casualty Ins. Co., 2010 WI 78, ¶ 56, 326 Wis. 2d 729, 786 N.W.2d 78.  This new rule will change long-standing appellate practice.  This new rule may mean a ‘net loss’ of useable precedent.

The court took up this question of procedure (and indirectly, substance) in an uninsured motorist coverage (UM) case.  The Blum court of appeals had relied in part on a decision which the supreme court had overruled fully, but which the court of appeals read to be overruled only in part.  2010 WI 78, ¶ 57.  Thus, under established jurisprudence, the earlier court of appeals decision seemed to retain some precedential value.

No more.  The supreme court determined that its own law-developing function would be ill-served by requiring it to address specifically every holding in a court of appeals decision to protect the coherence of the supreme court’s holding on a particular issue.  Id., ¶ 49.  Similarly, because the court of appeals is primarily error-correcting, its role should not include recognizing the precedential value of portions of published opinions that have been overruled.  Id., ¶ 50.  Creating a bright-line prohibition would seemingly lead to less confusion, and more efficient court operation.  Id., ¶ 53-54.

But the new “bright line” may have some shadows.  For instance, the three dissenters saw a difference between the Blum rule for “overruled” decisions, and the absence of such a rule (at least expressly) for a decision that is “reversed.”  Id., ¶ 91.  The rule implicitly may mean that “overruled” decisions no longer even hold persuasive value, see Wis. Stat. (Rule) § 809.23(3)(b), but that likely will be tested.  The dissent also lamented that the procedural issue should have been reached after soliciting input from Wisconsin judges and lawyers, via referral to the Wisconsin Judicial Council.  Id., ¶ 94.  Only counsel for Blum had argued for a new bright-line rule; neither counsel for the insurer nor the two amici took any position on the question. 

What is the practical effect?  First, there is an abundance of appellate decisions which have been partially overruled, and which now may not be cited as precedent.  In the last two years, for example, the supreme court itself relied on decisions which had been “overruled on other grounds.”[1]  Likewise the court of appeals, the circuit courts and many litigants have relied on discrete holdings in cases which were overruled in part.  Those practices will have to change.

But perhaps the change is only by a matter of degree.  The partially-overruled decisions apparently still may be cited for whatever persuasive value they retain.  In certain cases, petitioner-counsel may urge the supreme court to overrule only in part.  Time will tell whether the new Blum rule has eliminated confusion for the courts, improved judicial economy, or deprived litigants of useful authority which must be advocated for anew.

[1] See Roehl Transport, Inc. v. Liberty, 2010 WI 49, ¶ 114 n.41, 325 Wis. 2d 56, 784 N.W.2d 542; Christensen v. Sullivan, 2009 WI 87, ¶ 117 n.17, 320 Wis. 2d 76, 768 N.W.2d 798; Estate of Genrich v. OHIC Ins., 2009 WI 67, ¶29, 318 Wis. 2d 553, 769 N.W.2d 481; State v. Romero, 2009 WI 32, ¶ 49, 317 Wis. 2d 12, 765 N.W.2d 756.

The Law and Politics Are Two Different Things

judge signWhen judges are in the headlines for matters other than deciding the cases before them, it is usually not a good thing.

Unfortunately, much of the news about Wisconsin’s judiciary the past few years has been of a political character. The Wisconsin Supreme Court has drawn attention for judicial campaigns and their financing, internal discipline and when a justice should recuse herself or himself from a case. A lawsuit recently challenged Wisconsin’s code of judicial conduct on whether judges can join political parties, personally raise money and endorse partisan political candidates.

Wisconsin is not the only state with a high court in the headlines other than for its decisions. Michigan’s Supreme Court has undergone partisan fights recently, and the U.S. Supreme Court held that a justice of the West Virginia Supreme Court had to recuse himself from a case involving a company whose president spent $3 million to re-elect the justice while the company’s appeal was pending.

A robust debate about a branch of government is always welcome. But the discussion surrounding Wisconsin’s courts sometimes assumes that law is just another name for politics. And the more politics dominates the discussion, the more the state’s judiciary may be paying a price.

The political drumbeat around courts can sap their strength. Without a constant reminder of the judiciary’s proper role, the distorted view that “law is just another name for politics” flourishes.

The role of courts in adjudicating cases is different from politics.

Although the judiciary is elected in Wisconsin, it was never intended to directly carry out the wishes of the voters. Sometimes the judicial role means court decisions run counter to current public opinion.

Independent, impartial decision-making is the cornerstone of judicial branch activities, which include the power of judicial review. Wisconsin courts can invalidate a state law that violates a constitutional provision or that was not enacted according to the process outlined in the constitution.

A corollary to this duty of judicial review is the obligation of courts to act differently from the more political government branches. An important way to distinguish adjudication from politics is for courts to adopt neutral principles in the cases before them.

Neutral principles consist of two elements: neutral content and equal applicability. A decision rests on neutral principles for reasons transcending the immediate result of the case. That decision then applies to all parties equally.

Neutrality underlies much constitutional doctrine. For example, procedural due process guarantees a hearing before a neutral tribunal, and equal protection of the law demands race- and gender-neutrality.

Adopting neutral principles is a way to seek the objectivity that should distinguish law as a discipline from politics. Neutrality is a guide for the courts, both in choosing the law and applying the law.

The idea that law should be based on neutral principles provides a powerful rebuttal to the idea, express or implied, that law is just another name for politics.

The strength of a court is as a legal institution, not as a political one. Viewing judges as quasi-legislators with predictable voting patterns obscures the proper role of a court to use the tools of the judicial workshop – a law’s text, structure, constitutional history and precedent – to interpret and apply the law.

A constant reminder of the proper role of the judiciary – to be even-handed, nonpartisan legal technicians interpreting and applying, not making, the law – provides an important touchstone for Wisconsin’s courts. It does the same for discussion about them. There is a distinction between healthy debate and a court and its work seen in terms of partisan politics.

A court’s authority encompasses power and neutrality. Lady Justice may hold a sword, but her scales and blindfold are just as important to who she is.