 and welcome back to the Donahue group. We're so glad that you have come back to join us and we have a very special guest for this episode and our next episode. But before I introduce her, I'd like to just introduce our wonderful panelist as always. We have former state senator Cal Potter, also former assistant superintendent for library services at DPI. I do remember that now, year after year. And Ken Risto who... Here we go again. Who really kind of runs the Sheboygan area school district at least as respects social studies and curriculum and assessment and a variety of other things. My name is Mary Lynn Donahue. I'm a lawyer here in town. And with that in mind, I am particularly delighted to welcome our guest, Chief Justice Shirley Abrahamson who is in town. And I'm so glad you could join us and for a half an hour of conversation and information. So welcome. The Chief Justice has, we were just talking before the show started. It's a decennial year in the sense that the Chief graduated from law school 50 years ago, has been on the Supreme Court for 30 years and has been Chief Justice for 10 years. So it's a nice even number as we go along. So welcome and we're delighted that you could join us. Thank you and I'm glad to be back in Sheboygan. The Supreme Court, we have three branches of government, even I know that. Our executive branch, our legislative branch and the judiciary. The judiciary is not as well known. I think we would, it's not talked about as much. And you're the Chief Justice of the Supreme Court. Could you just tell us a little bit about who's on the court and the kinds of cases that you get and whatever else you think might be of interest to our audience? Well, the Supreme Court is the highest state court in the state of Wisconsin. It has seven justices. All of the justices are elected as all the judges in the state are. The Supreme Court justices run statewide and of the seven we have four men and three women. And let's say we generally do everything in terms of seniority. That is who has been the longest on the bench. And so I'm the Chief Justice because I've been the longest on the Supreme Court. So my number in the court is one. And the number two who calls himself Chief Justice in Waiting is John Wilcox. A third justice in seniority is Justice Ann Walsh Bradley. Number four justice is Patrick Crooks from Green Bay. Number five justice is David Prosser. Number six justice is Patience Rogansak. And the baby justice, the newest justice. Number seven is Lewis Butler from Milwaukee whom Governor Doyle appointed about a year ago, a little over a year ago. So those are the seven. And we are a court that is totally discretionary. We select our cases. We get about a thousand requests a year. And of those we select somewhere between 80 and 90 a year to give full consideration. The other cases have already had one appeal. And the last court, the Court of Appeals decision becomes final if we don't take the case. And as I understand the Court of Appeals, there's a right to appeal to the Court of Appeals and they have lots and lots of appeals. And of course the first level is the circuit court level. And here in Sheboygan County, we have five circuit court judges and five branches. And so it's... And that's where the case starts for the most part. That we also have municipal court judges in certain communities. And I gather the city of Sheboygan is going to have a municipal court. Joining with the Village of Kohler, I'm the prosecutor for the Village of Kohler and also for the city of Sheboygan Falls, which has just started a municipal court, which I have to tell you is a different system. And it certainly has a different feel to it. And it's quite interesting. And in addition to that, we have tribal courts in Wisconsin and we shouldn't forget that. The tribes, some of the tribes have trial courts, others have trial and appellate courts. So we have a number of different courts. The tribal courts are not under the state court jurisdiction. The municipal courts are. And of course, we can't forget, we also have federal courts in the state. That's correct, both Eastern and Western District of Wisconsin. So from my perspective, and I've always found this to be interesting as to just how the Supreme Court works. I think the Wisconsin Supreme Court, as opposed to the US Supreme Court, tends to work much more out in the open if that's a fair description. But could you just describe to our listeners who hopefully have not been involved in Supreme Court cases how you'd make a decision about taking a case and how the decisions get written? Well, we read all the original documents sent by the lawyers or the individuals. You don't have to be a lawyer to come to the court. And we sit around our big conference table, which is generally in a closed room in the Capitol and vote on each petition, each request. And you need three justices to agree to take the case. That's the only time a minority rules in our court. And we take the case. The Wisconsin Supreme Court is a very open court, probably the most open court in the country. All of our decisions, there are opinions. The opinions are written that explain why we reached a certain result. They are all on our website. So if you wanna read an opinion, you may do so. Free of charge through the internet. Let me give you our website address. It's WI Courts, one word, W-I-C-O-U-R-T-S dot gov. And if you go to that homepage, you can find Supreme Court opinions. You can find Court of Appeals opinions. And there's also techniques for finding out what's happening in every court in this state. So it's very open. You can also go to court. And I strongly urge all your listeners to go to the nearest county court and observe what's happening. I think they'll be pleased with the quality of the hearings that the people of this state get. In fact, that's what I did this morning. I sat in on some cases. How has your workload changed once Wisconsin went to appellates? You had been on the bench a long time and I was in a legislature when we created appellate courts. And I'm sure you had many more cases to wrestle with before the appellate system was instituted. We would be doing 250 to 300 cases a year in deciding them. And we would have a backlog of a couple of years. It was never catch up. And as a result of the court of appeals coming in, the cases are now first heard by the court of appeals. And they get roughly 3,000 requests a year, which they take because most of them are required to be taken. They are a fairly current. You don't have a two-year backlog. And in our court, anything we take until January is heard that year. So anything we hear from September through June, you're going to get a decision by June 30. So when you have 1,000 requests, I'm sure you probably have some indecision as to whether the 90 you pick or 80 you pick are the best and the brightest of the cases. Do you resolve those over saying maybe next session we'll take one or do you just anguish over those? You anguish. Sometimes you hold them for a couple of months to study them, get more information. But once they're turned down, they are done. So we're very careful. And most of the time, I think we chose right. But every once in a while, we don't think the cases of statewide legal significance, and it doesn't take three months. And another case that raises that issue is up there, which makes you think it is. And maybe we still doubt it. And then another three months pass. And there it is again. Well, now we know that it's a recurring issue. And we'll take it. And every once in a while, we take a case that we think is really important. And it turns out, because of the fact situation and the way it's argued that it may not have been that important. And if we knew that, we wouldn't have taken it. But we're human, just like all people and all institutions are made of humans. So you find mistakes of not taking some, mistakes of taking others. But as a whole, I think we've done very well in deciding what to take. Chief, of those 80 or 90 you take, I mean, they all have, you hope, statewide's legal significance. Does it break, does there kind of a continuity in how many are civil issues and how many are criminal issues? Roughly. About half of the requests we get are criminal. And most of those, by far, most of them are from the defendant, the individual, a few are from the state where the state has lost the issue for one reason or another. So half the ones that are requested are criminal. But we take mostly civil cases because the criminal cases are a sufficiency of the evidence, which has already been decided by the Court of Appeals or an issue which to us appears open and shut and has been decided. So maybe 25%, maybe 30% of the cases we take are criminal, whereas the pool is 50%. Okay. And do all of them have oral arguments in front of you, of those 80 or 90 you hear? Yes, essentially yes. The only time there's no oral argument before the Court is if there are two cases that raise precisely the same issue. And we take them both, we argue one and keep the other on briefs. But even there, sometimes we'll have two oral arguments, one on each case because you've got different lawyers who approach the issue somewhat differently. And if it's very complex, the Court might be able to use an extra hour of discussion. So we're open. And there's Laura among local attorneys who have argued before the Supreme Court about just how nerve wracking a process that is. One of my partners talked about taking three or four showers before he got out of the door and changing his shirt. I have appeared just a couple of times on rule-making petitions, not on cases. And I was just so grateful for the podium because my knees were literally knocking together. And I had sort of a death grip on the, and. Well, it's time. You have a run lights, don't you? Why don't you start when you stop? Is it analogous to what goes on in the United States Supreme Court where I'm familiar with the process or is it somewhat different? It's very analogous. Each side gets 30 minutes and there is a set of lights, as you said. One is green, which means go. Orange means you got five minutes. It's a warning light. And then red means stop. And many lawyers, most lawyers will stop in mid-word and say, may I complete the sentence? And I say yes. Indeed, if they've been peppered with questions, I'll say, and if you'd like to summarize in a couple of sentences, please do. But if it's a complicated case, judges will ask questions beyond the red light. And because they want to know. And I don't stop them. Sometimes it got so bad that we were running way into the lunch hour and into our third case. And so I said to the court, now do you want me to stop you all? And they said, no, they didn't want me to do that, but they would each police themselves. So they sort of try hard not to go too far over. So the oral arguments really then are of assistance to the court? Oh, absolutely, absolutely. This is a time for the court to ask the lawyers questions that they don't know the answers to. This is not a test where we know the answer and are testing the lawyers. This is where we're talking about cutting edge issues in the law. And here's an opportunity for the lawyers to help. And in fact, one of my favorite questions is if you were a judge and you were writing the opinion, what would you say? And that's an opportunity for them to give a short analysis that's pithy that we can understand. And it's a wonderful opportunity for the lawyer who is very well prepared. Lawyers think that it's not important, but we all think it's very important. If people wanted to come and see the court in operation, how do you schedule these? It's in the capital in the Supreme Court. Second floor east. They are scheduled in advance so that I haven't done this schedule for next starting in September, but I will in about two or three weeks. And then it'll be on our website so they'll know on September, whatever dates ABC, there will be a oral argument, and there will even be a schedule of what cases we're going to have here. And furthermore, there'll be a short synopsis of what the case is about. So if you're interested in mortgages, they might be a case on mortgage. If you're interested in search and seizure or free press or some other topic. Uninsured motorist coverage. Right, uninsured motorist coverage. Everybody should be interested in because we all, most of us drive and have insurance. So there's, you can do that. The court is always open and you're quite welcome to attend. And I would have to say for anyone who's watching, if you have not been in the Supreme Court chambers, it's an exquisite setting and there really is, I think, a sense of history and gives you a sense of the seriousness of the business before the court and it's a lovely, formal process. I think far, the chamber itself, far more beautiful than the US Supreme Court chamber. I agree, I agree. But you don't have anybody standing behind you to pull your chair out for you, so. No, no, we're a do-it-yourself court. I drive myself, et cetera. Pull my chair myself, I put my robe on myself, et cetera. And I think it was. Wisconsin way. I think the federal system is a little bit different. How, once the arguments have been heard and the briefs have been reviewed, how do you decide, do you assign who writes the opinions? Does it get divided evenly? Can you explain that process to us? Yes, as you know, in the US Supreme Court, the Chief Justice assigns who will write the opinion. In our court, we have a different system and we use seven poker chips. Don't ask me where the poker chips came from. I don't know. They magically appeared several years ago. And on each poker chip is on the front end, it's a happy face and a number. And the number corresponds to the number of the justice. So my number is one, Lewis Butler is seven. And they put face down on the table. And after a full discussion by the court and a vote taken, we will then select a chip. This is done by the number two justice, the Chief Justice in waiting justice. And whoever's chip is selected will write the opinion unless that justice is in the minority. Or the justice has already been selected to write a case. That's how we even it out. So everybody on the court gets one case, you know, as we go through them. Then if we have nine or 10 cases that month, we start again with a justice. And so there'll be three new justices picked on that so that at the end of that conference, seven justices will have one case and three of those seven will have two cases. And then we even it out the following week so that by the end of the 10 month term, everybody will have an equal number of cases or a couple of justices may have one more or one less. And you have one lock. Does each justice have one lock? Justice has one lock clerk and one judicial assistant. So we don't have a heavy bureaucracy or a heavy staff. The justices are expected to do their own work, which I think is good. Does the court follow the United States Supreme Court in allowing for concurring opinions and dissenting opinions and all that sort of thing? Absolutely, absolutely. You have to have an even number of majority opinions, as I said, because of the system, but you can write as much or as little you want in terms of concurring or dissenting opinions. We try hard to get all seven on the same page because that's better for the lawyers and the litigants, but not to the point of silencing anyone. I'm a very strong believer that the justice ought to express himself or herself. By and large, Justice, you know, we've talked about the United States Supreme Court, a lot of decisions being five, four. Are a lot of your decisions four, three or they tend to have more consensus? In both the U.S. Supreme Court and in our court, many, many decisions are unanimous. It's in the U.S. Supreme Court, the divided courts generally are on hot button issues. That's why, and they further get the press, the media. In our court, we will have many that will be unanimous and we will have several that will be four, three, five, two, and six, one. And the minority could be a concurrence. We agree with the result, but you sure reached it peculiarly. That's a concurrence or you didn't talk about ABC and I'm gonna talk about ABC and that's a concurrence. The dissent says, you got the bottom line wrong and you reached it wrong and here's how I would do it. And concurrences and dissents are very important because they indicate where potential weaknesses are in the opinion. They may indicate future development of the law. They may be used by other states and other state courts or federal courts to discuss the same issue. They can be, they're a dialogue. They're a dialogue with the lawyers. They're a dialogue with the legislature saying, hey, fix this up or get involved in this. They're a dialogue with the media and they're a dialogue with the people saying, here's what's happening. So it's very important. I think it's fair to say in the 10 years that you've been Chief Justice, you've made a concerted effort to make the judicial branch as well-known or maybe not as well-known, but better known than it has been and to achieve some parity with the coverage that the executive and the legislative branches have gotten for a while. I know the court was going to various locations around the state and it had a name and I can't... Justice on Wheels. There we go. There we go. Good title. Even more interesting than Meals on Wheels and now there's another case of the week effort that the court is making. It's been, I think, an interesting process for people to get to know the court a little bit. Are you still going around the state? Absolutely. We were in Walworth County this year and I met with the county administrator and the chairman of the county board in Sheboygan and got an invitation to come to Sheboygan. Oh, very good. And I put it down on the list, but as I told them, I think our next trip may have to be to the west part of the state or the northern part of the state, but we think that's very helpful. We get a chance to meet with the bar associations, with the public. The public is invited to enter the court. Hundreds of people come to watch the court in session and the whole concept of outreach, the courts affect the daily lives of all of us, whether we're in court or not. And the courts are very important in a democratic society. In a democratic society, people should be able to go somewhere where they'll get neutral, impartial resolution of their disputes, fair and square according to the rule of law. And that's what the courts provide all of our people. And this is a precious commodity that we have to preserve. One of our biggest exports is the rule of law and the judicial system that the United States has. And it is a delicate, precious commodity. And all of us should be designed and geared to protect this free, impartial, neutral, non-partisan resolution of disputes of individuals and of the government and individuals and government agencies against each other. So that's why I feel very strongly about this. And it's the court does too. And so do all the circuit court judges and they're out there talking to the people and listening, listening to their concerns about the court system. And doing justice. And doing justice. And part of that impartiality is that before, during and after a decision, judges don't talk off the cuff, so to speak, about a case. That's right. You wanna know what the court thinks? You reared the opinion. That's very different than the other branches which don't have to give written reasons for why they do things. And we do. And then the court, individual judges don't go around trying to re-explain what they did. You read it. So it's important to re-emphasize that of those 80 or 90 cases that you decide as a group, every one of them has a written opinion as to how you got to, where you got. Exactly. Exactly. Nothing is done otherwise. Pour over that because it sets the precedent for future cases. So if I can understand what the court has written about in this case, then I can argue that it should apply to my case. And so again, the rule of law I think is pretty important. Hopefully we'll have a little bit more time to talk about challenges that the judicial system faces. But I went to, I had a chance to be present when Chief Justice Rehnquist made a presentation at a small college. And I stood up and I said, I'm from Wisconsin. He was taking questions. I'm from Wisconsin and we're studying, this was a. Five and a half as was Chief Justice Rehnquist. Right. I know. Did he say that? Yeah, he did. He did. Well, but what he also said, in response to my question, the judiciary seems to be under fire. It does not seem to be an equal, a co-equal branch, either at the state or the federal level. And he said, well, you're from Wisconsin. You have, just as Shirley Abrahamson, there is no problem in Wisconsin. So he put a lot of stock in your ability to hold the balance. But do you feel that, and I know our time is running out, but that the judiciary is not a co-equal branch? It doesn't have the power of the purse. Do you, is this an issue in Wisconsin? I think it's a co-equal branch. I believe the legislature and executive branch understand that, but there's a check and balance in this state. Legislature has the power of the purse, and rightly so. The executive has the power of enforcement, and we have the power to interpret and guarantee the rights and responsibilities of our citizens. I think in this state, people have been very careful of disagreeing with opinions, which you have every right to do without personal, vicious attacks on individual judges or on the branch. I think that it's been a very respectful disagreement with opinions or agreement with opinions, and I think that's good, unlike individual attacks. And you have an opportunity to go to the legislature from time to time to explain the state of the judiciary. Absolutely, and we have an opportunity to present a budget and argue for it. In some points I win, in some points I lose, and that's part of the democratic system of checks and balances with the legislature, and the court has taken cuts in bad fiscal years, but I think the legislature's been very understanding of the needs of the court system. We can use more money, but I'm not here to complain about that. I'm here to say everybody understands these issues. And it is interesting just how there needs to be and how in some states there is not that mutual respect and where the system seems really under fire, and it's not a good thing. Those of us who have been involved with the law for a long time have a lot of respect for it. So we thank you for joining us, and we've got lots more to talk about, and we'll invite our public back for another session. Thank you. Thank you for having me, I've enjoyed this. It's been a pleasure. We'll see you again in the next session. Thank you.