Proposal offers high court substitutes.

Byline: Tony Anderson

Two legislators are seeking support for a proposal that would allow the state Supreme Court to temporarily substitute a court of appeals judge to the high court bench during times of illness or recusal.

Reps. Gregory B. Huber (D-Wausau) and Mark Gundrum (R-New Berlin) have a deadline of tomorrow for co-sponsors for a plan they anticipate introducing within the next week. The proposal would modify the state constitution to allow the Supreme Court to select a court of appeals judge by lot to sit on a case where a justice has recused himself or herself.

Substitutions could also take place if a justice were ill and unable to hear oral arguments.

Huber and Gundrum's goal is to eliminate the problems that can arise when an even number of justices hear a case, ending in an equally-divided decision. In those instances, the decision from the court of appeals is affirmed. If a case is certified to the Supreme Court, is goes back to the court of appeals for review. Then parties can petition the Supreme Court for review again.

"Right now about 36 states have some provision to appoint temporary reserve justices to the highest court when one or more justices are unable to serve," Huber said. "That's what we're trying to do here."

He highlighted the problem of litigants who end up spending time only to learn that the court was unable to reach a majority decision.

"You get litigants who have spent all this extra money to appeal the decision all the way to the Supreme Court then due to the fact that there are not an odd number of justices up there they end up losing the case," Huber explained.

3-3 Decisions

Since 2000, the Supreme Court has been equally divided on a dozen cases, which ended up affirming the court of appeals decision or going back to the court of appeals for review. Three of those split decisions were issued in 2003. Looking back to 1996, the school choice case u State Ex. Rel. Thompson v. Jackson, 199 Wis. 2d 714 (1996) u resulted in a 3-3 decision from the court. Justice Ann Walsh Bradley did not participate.

"There have been a number of very significant cases coming before the Supreme Court where one jurist or another has had to recuse himself from the decision," Gundrum said. "In some cases, it ends up being an even split ... as a result there is no way to get a conclusive answer from the state's highest court.

"That's why we thought it was important that in such situations where there would otherwise be a potential tie in...