Q&A with attorney on State Supreme Court next steps as Protasiewicz joins the bench

NBC15 sat down with Attorney Doug Poland, who spells out what happens now that a new judge will enter the mix, as well as gives insight into when or if high-profile issues ranging from public health to election administration could be heard.
Attorney Doug Poland joins The Morning Show to help breakdown the next steps within the state's high court as Janet Protasiewicz will soon join the bench.
Published: Apr. 5, 2023 at 3:41 PM CDT
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MADISON, Wis. (WMTV) -Now that the state’s high court has a new justice, people may be wondering what happens next, how does the Supreme Court move forward? Supreme Court terms in Wisconsin run until the end of July.

Elected judges serve a 10-year term and so the current justice, Pat Roggensack, who is retiring, will serve until July 31; meaning the newly elected justice, Janet Protasiewicz, will take over and she’ll be sworn in August 1.

At that time, the newly composed court will begin to hear cases.

NBC15′s Phoebe Murray sat down with Stafford Rosenbaum partner and attorney Doug Poland for further insight.

PHOEBE MURRAY: With the new ideological shift on the court, why might it be more likely to see hot-button issues be heard?

DOUG POLAND: Most of the cases that come to the state supreme court are cases that the justices on the court can choose to take or not take. So in the usual process that we have in our courts the typical place where a case starts is in what we call our circuit courts, those are trial courts, our lowest courts so to speak.

That’s where people typically file a complaint that’s where a trial would happen after a trial happens in the state circuit court it would get appealed to the court of appeals and that is an automatic right of appeal. Anybody who loses at the circuit court they get to go to the court of appeals and the court of appeals has to hear the case. The loser in the court of appeals then can, they don’t have to, they can if they want they can file what’s called a petition for review and they can ask the state supreme court to take the case.

But it’s the state supreme court’s decision whether to take the case or not and they don’t have to take it and so if you have an ideological shift in the makeup of the court you might have some different decisions made about what cases they want to hear versus those ones that they don’t want to hear.

PM: Is there a way in which some of these issues are taken up before Protasiewicz is sworn in?

DP: It would be highly unlikely, it would be highly unusual. Would it be possible? Potentially it would be possible and that’s because there are a few different ways that a case can get to the state supreme court.

I just mentioned one a short time ago which is the usual course we have which takes years a couple of years typically in a circuit court then a court of appeals and then you petition for review to the state supreme court.

But there are ways that that process can be shortcut so if there’s a case that’s already in a state circuit court, for example, the lawsuit that Attorney General Josh Kaul filed last summer that has to do with abortion rights in Wisconsin that’s currently in the state circuit court and that’s in front of the Dane County judge right now.

That case depending on the outcome of the case and it probably will be a while before it gets decided, that would go to the court of appeals, one way that a case could get up sooner to the state supreme court would be for one of the parties at the court of appeals to file what we call a petition for bypass it could ask the state supreme court to take that case.

Now that’s not going to happen with that particular case right now because the timing of the case and where it is right now in Dane County Circuit Court, but there is another way that that case could get there there’s something called a petition for a supervisory writ.

A petition for a supervisory writ, any of the parties in the state circuit court can go to the state supreme court and they can file this petition for supervisory writ and they can ask the state supreme court to take up the case immediately and that actually happened in 2011 if you remember with the Act 10 case, the collective bargaining rights case, that’s what happened they took that on a petition of supervisory writ.

So that could get up immediately that potentially is something that could get up before July 31 highly unusual it doesn’t happen very often and there has to be a really compelling reason to do it but it’s possible.

PM: From an attorney’s standpoint, there must be a level of strategy involved in where you begin to bring a lawsuit, no?

DP: There is and it depends on the magnitude of the issue how important it is it depends where your timeline is there’s actually one other way that I haven’t mentioned yet, that a case can get to the supreme court and that is called a petition for original action. So in the redistricting case that was heard a year ago that was argued to the court and decided that was a case that started out as a petition for original action.

So there was a party that went to the state supreme court that didn’t go to the circuit court to file a complaint, they went right to the state supreme court first and they said we’ve got this really important issue of law we want you to hear this case.

And the supreme court took that case that was filed in September and that was decided by March. Now these usually take a long time so it’s highly unlikely that someone would come in now and file a petition for an original action that it would actually get heard and decided before the end of July, but the potential is there that somebody could file that kind of petition.

PM: Is there anything else you’d like to add?

DP: I think that one of the difficult issues for people who aren’t lawyers to understand is just that there is a process there is a really set and fixed process that we have in the law for cases to make their way through for legal issues to get decided and for fact issues to get developed and that process has been shortcut in recent years there have been very very many cases, an unusual number of cases that have been brought to the state supreme court under these original action petitions asking the state supreme court to take these cases first.

Rather than let the law and the facts be developed in the state circuit courts I think we’re likely to see a change in that, I think we’re likely to see the state supreme court beginning in August not take as many of those cases and let these cases play out a little bit more in the circuit courts. That’s the way the courts are designed and that’s the way they really function best and so I think we’re going to see a return to that and I think that’s a good thing for the development of law in Wisconsin.

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