The Wisconsin Supreme Court released three new opinions last week, including its first non-unanimous opinion of the 2011-12 term.
The first two are fairly unremarkable cases. In Olson v. Farrar, the Supreme Court engaged in some run-of-the-mill insurance coverage interpretation, unsurprisingly finding the terms of the insurance contract ambiguous and holding that the contract did provide coverage for an accident caused by a tractor stalling as it towed an RV up a steep hill. The only novel legal holding concluded that once an insurer has agreed to provide a defense to its insured under a reservation of rights to contest coverage, a court can look outside the “four corners” of the insurance contract and complaint itself in order to determine whether there is coverage. Justice Ann Walsh Bradley, who seems to get more than her fair share of insurance interpretation cases, wrote the court’s opinion.
In State v. Hanson, the Supreme Court engaged in some likewise run-of-the-mill statutory interpretation, reviewing the felony conviction of a man who fled a police officer who had pulled him over for speeding. The defendant had called 911 and asked for directions to the nearest police station, claiming he feared the officer who pulled him over would beat him with a baton. The jury didn’t buy this story, and the Supreme Court, with Chief Justice Abrahamson dissenting, affirmed the jury’s conviction. The Chief would have held that the man’s conduct was not “willful and wanton.”
The more interesting case is State v. Sellhausen, which addressed the issue of whether a defendant who used a peremptory strike to remove the judge’s daughter-in-law received a fair trial. The court unanimously agreed that under existing precedent, a new trial was not warranted.
However, in a concurring opinion that garnered a majority of four votes (making it binding legal precedent), Justice Ziegler concluded that, while judges have the inherent authority to strike a family member from a jury “sua sponte” (on their own, without motion by a party), judges need not automatically do so in every case. Instead, judges are instructed to use their discretion to determine whether justice requires the removal of that juror. The Chief Justice wrote separately, joined by Justice Bradley, to disagree with that conclusion. Justice Crooks expressed no opinion on this issue.
What’s interesting is how the opinion is structured. The customary way to arrange this opinion would have been to start with Justice Ziegler’s writing, since her opinion garnered 4 votes and is dispositive of the case. Then, the Chief’s writing (which disagreed with a portion of the majority’s reasoning but agreed with the result) should have been the concurrence, since only two justices disagreed with the majority on the issue of a judge’s duty to sua sponte excuse family from the jury (Justice Crooks did not take a position on that issue).
This “out of order” sequencing makes the opinion more difficult and confusing to read and might even lead some lawyers who are less than careful to misapprehend the result. I am not sure why the opinion was structured in this way, and attentive counsel will certainly work through its peculiarity, but isn’t there something to be said for keeping it simple?