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Don’t sacrifice public participation in effort to increase high court’s efficiency

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Andrea Kaminski
July 15, 2010

The Wisconsin Supreme Court was the first state high court in the country to hold open meetings in which justices discuss the rules by which they operate. In Wisconsin, unlike many other states, citizens can petition the court to change its administrative rules. In the Wisconsin tradition, the process is open, although it isn’t always efficient.


Wisconsin Supreme Court Justice Patience Roggensack has proposed a new procedure that would be more efficient. However, the high court’s discussion in a recent open meeting demonstrated how a process and a timeline can either welcome or stifle public participation.


Under Justice Roggensack’s proposal, petitions must be submitted by Jan. 10 to be considered by the court the next September. The petitions would be posted on the Internet, and comments may be filed until April 30. The petitioner would then have until June 15 to reply. Petitions and comments would be available for anyone to see on the court’s website. By Aug. 1, court staff would review each petition along with comments and prepare a memo with recommendations to the court. In mid-September the court would consider all of the petitions in one administrative conference. The justices would decide which should have public hearings, and these would be held in time for the court to make final decisions by Jan. 15.


Unfortunately, the timeline is based on that of Arizona, a state that doesn’t have Wisconsin’s open process. Justice Ann Walsh Bradley asserted that the proposal would “hamper interaction with the public” by allowing for fewer public hearings, some of which would be held by court commissioners rather than by the justices.


In Wisconsin, notice of hearings by the Supreme Court must be published in the State Bar’s official publication at least 30 days in advance. This means that under Justice Roggensack’s proposal, hearings would have to take place in mid-December to mid-January—not a time that’s welcoming of public input. Justice Bradley said that Arizona has no publication requirements for rule petitions, and the court has not held a public hearing on rules in years. Arizona’s high court simply decides on petitions in closed session, sometimes ruling on more than 40 matters in one day.


Justice David Prosser added that he didn’t want to model our system on that of a state that doesn’t even elect Supreme Court justices.


Process matters. It can make the difference between doing things with public input or without. Public participation, through election of justices and the ability to influence the rules by which they operate, is what gives Wisconsin a court system that is for the people and by the people.


Justice Roggensack is to be commended for seeking to improve efficiency and increase transparency through Internet use. The website work should be implemented as soon as possible.


Meanwhile, the justices have wisely referred the rest of the matter to a study committee. The proposal shouldn’t come back for consideration without a timeline that honors the Wisconsin tradition of openness and public participation.


Andrea Kaminski is executive director of the League of Women Voters of Wisconsin Education Fund, based in Madison. The fund is a nonprofit, nonpartisan organization working to encourage active, informed participation in government. Kaminski can be reached at (608) 256-0827; e-mail kaminski@lwvwi.org.

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