Wisconsin's Criminal Law Under Shirley Abrhamson

Her First and Last Two Years as Chief Justice

By Dana A. Vitarelli

Dana Vitarelli, a 2012 cum laude graduate of Albany Law School, did her undergraduate work in psychology at the State University of New York at Geneseo. In law school, she was the Research and Writing Editor and Business Manager for the Journal of Science & Technology and Chair of the Domenick L. Gabrielli Appellate Advocacy Competition for the Moot Court Editorial Board.

This paper was prepared for the State Constitutional Adjudication Seminar, Spring 2012.

Dana has contributed previously to the Center. (See Conservative to a Tee: Chief Justice William H. Rehnquist: His Voting Patterns on Select Criminal Procedure Issues, July 5, 2012; The Interplay Between State and Federal Courts, April 9, 2012.)

Born and raised in New York City, Chief Justice Abrahamson had been in private practice in Madison, Wisconsin for fourteen years and was a professor at the University of Wisconsin Law School when she was appointed to the Wisconsin Supreme Court in 1976. At that time, she was the only woman to serve on the court.

She was elected to the court in 1979 and re-elected in 1989, 1999, and 2009. Since August 1, 1996, she has been Chief Justice and, in that capacity, serves as the administrative leader of the Wisconsin court system. Her current term expires July 31, 2019.

Abrahamson has authored more than 450 majority opinions and participated in more than 3,500 written decisions of the court. This makes her a great case study.

This paper will try to determine how and why she decides the cases that come before her court. It will specifically examine the opinions written by Chief Justice Abrahamson--majority, concurring, and dissenting opinions. To keep this examination manageable, the scope is narrowed to include her first two years and last two years as chief justice. It is the goal of this paper to discern if Abrahamson, in her sixteen years as chief justice, has changed her approach to deciding criminal law cases from the beginning of her term to the present.*

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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.

What Is With Wisconsin?

Labor, Collective Bargaining, and the Wisconsin Supreme Court

By Nicole Nielson

Nicole Nielson, a third year student at Albany Law School, is a member of the Albany Law Review, the student Executive Editor of the Law Review's annual State Constitutional Commentary issue, and a Senior Editor of the Center. In this paper, prepared for the State Constitutional Adjudication seminar at the law school in the Spring 2011 semester, she explores the Wisconsin Supreme Court's labor and employment jurisprudence over the past 10 years, with the state's recent restrictions on collective bargaining as a backdrop.
[Note: The day after this post was published, the voters of Ohio repealed similar restrictions on collective bargaining that were recently enacted in that state under the felicitously named "Jobs Budget " law.]

During the winter of 2011 Wisconsin state budget cycle, Governor Scott Walker proposed a bill that would have a drastic impact on the collective bargaining rights of the state’s public employees. At first, the legislature balked, with the senators of the state’s Democratic Party literally fleeing across the border to prevent the requisite quorum to pass the bill. Eventually, under the watchful, critical eye of the nation, the bill passed. The executive branch and the legislature had presumably prevailed to eviscerate the spirit and concept of collective bargaining. Engaging the judicial process, advocates filed for, and were granted, an injunction at the state county circuit court level, disputing the validity of the new legislation, which stripped away previously authorized rights for labor with respect to collective bargaining. 

Nothing happens in a vacuum, and Wisconsin is no exception. Although the influence of special interest money in the election campaign of 2010 was often cited in the media as a driving force in the proposed legislation, it was not the only factor. In context, the “Budget Repair Bill” reflects genuine discontent with the current economic reality, as well as a generalized public perception that the unionized public employees have an unfair benefit when compared with private sector employees. This perception exists on a national level, but is inconsistent with Wisconsin’s generally progressive attitude and historical approach to labor in both the public and private sectors. The context in which the perception of distrust and unfairness related to public employment began to garner supporters a while ago – it did not develop overnight. It is the manifestation of longstanding tensions between labor and employers that have been percolating for years.

As an independent branch of the state’s government, charged with exercising checks and balances on the powers of the executive and legislative offices, the Wisconsin judiciary would necessarily be called upon to interpret and enforce the provisions of the controversial collective bargaining rights legislation which was passed despite epic protests. The involvement of the judicial branch commenced quickly – challenges to the legislation started making their way through the court system. As the state’s highest court, the Wisconsin Supreme Court would likely have the final say on the implementation of the legislation.*
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* Citations to references in this introduction are available in the paper.

Read the entire paper HERE.