Review of a decision of the court of appeals. Affirmed.
¶1 N. PATRICK CROOKS, J. The
question we consider in this case is whether Ramon Gonzalez's constitutional
right not to be a witness against himself was violated when the court, over
defense objection, asked in front of the jury that Gonzalez "display his
teeth," and Gonzalez complied.
Gonzalez argues that he was compelled to be a witness against himself at
trial because the teeth, which were platinum, were more than physical evidence——they conveyed a message to
the jury because they give him a "fierce" appearance. A witness had testified that the victim had
identified one of his attackers as a fellow inmate with platinum teeth. The circuit court
ruling came after the prosecutor asked "for the jury's sake, that we show
Mr. Gonzalez's dental work . . . so the witness can
describe whether or not he has particular dental work." Gonzalez was convicted of battery by a
prisoner, as a party to a crime.
¶2 The question requires us to decide whether, in this case, teeth
are the kind of evidence that implicates the Self-Incrimination Clause. Gonzalez acknowledges that it is well settled
that the right against self-incrimination applies only to testimonial evidence,
but he argues that in this case the physical evidence "had a 'testimonial'
aspect because it revealed content——the
'fierce-looking' appearance of his teeth,"
and he says this fits within the category of cases where physical evidence has
been held to have a testimonial aspect and, as a result, to fall under
constitutional protection. He argues in
the alternative that even if it has no testimonial aspect, it was improperly
admitted because it was not material, given that other evidence served the
purpose of identification. The State
argues that his platinum teeth were physical evidence that did not have a testimonial
aspect, and were material to the identification of Gonzalez, which was central
to the trial.
¶3 We hold that the evidence of his platinum teeth was physical
evidence that did not have a testimonial aspect sufficient to implicate
constitutional protections. The relevant
question under the case law is whether the evidence in question expresses,
makes use of, reveals, or discloses the contents of the defendant's mind. Teeth do not do so. We also hold that Gonzalez's teeth are
material to identification because they are probative of Gonzalez's identity,
which was a matter at issue. This case therefore fits squarely into the
long-recognized category of cases involving the body as evidence and does not
offend constitutional principles against self-incrimination. We affirm the court of appeals.
I.
BACKGROUND
¶4 This case arises from an attack by multiple people on an inmate in
the Milwaukee County Jail. Gonzalez was
among the inmates who were accused of attacking the victim. He was charged with battery by a prisoner, as
a party to a crime, and went to trial. Challenging
the identification of the accused as one of the attackers was the focus of the
defense. The victim was clearly
reluctant to testify and repeatedly said so while under oath; he claimed he was
unable to identify his attackers. While
video of the attack was shown to jurors, the defense disputed that the grainy
video was sufficient to make an identification, and the State offered further
evidence on that issue. The jury heard
the following during testimony about the identification of Gonzalez and his
involvement in the beating:
- An
eyewitness, a deputy on duty at the jail, saw Gonzalez stomp on the victim
during the fight.
- Minutes
after the attack, the victim of the assault told an investigating officer that
one of the persons involved was from Cell 10.
- While
in the jail infirmary, the victim told a second investigating officer that the
inmate in Cell 10 who had platinum teeth had hit and kicked him.
- The
victim also testified that he knew Gonzalez by the nickname
"Platinum" because of his teeth.
- Gonzalez
was housed in Cell 10 and had platinum teeth.
No evidence was introduced that
any other inmate besides Gonzalez fit this description.
¶5 During the trial, Gonzalez objected to the prosecutor's request,
during a witness's testimony, that Gonzalez reveal his teeth to the jury. The circuit court overruled the
objection. Gonzalez complied, and the
record reflects that he smiled at the jurors to show his platinum teeth. Gonzalez's post-conviction motion for a new
trial was denied, and the court of appeals affirmed the conviction on the
grounds that the teeth were physical evidence, and thus Gonzalez's showing of
his platinum teeth did not constitute the kind of compelled testimonial
evidence the United States and Wisconsin Constitutions prohibit. Gonzalez petitioned for review, which we
granted.
II.
STANDARD OF REVIEW
¶6 The question we address is whether Gonzalez was compelled to
provide the kind of evidence that is protected by the Fifth Amendment of the
United States Constitution
and its corollary in the Wisconsin Constitution, which prohibit the State from
compelling a defendant to be a witness against himself or herself. Although this case does not arise from a
suppression motion or motion in limine, it similarly presents a question of a
constitutionally-based objection to the admission of certain evidence. "Whether evidence should be suppressed
is a question of constitutional fact. In reviewing questions of constitutional
fact, we uphold a circuit court's factual findings unless clearly erroneous,
but we independently determine whether those facts meet the constitutional
standard." State v. Samuel,
2002 WI 34, ¶15, 252
Wis. 2d 26, 643 N.W.2d 423 (citations omitted) (evaluating a
constitutionally-based challenge to the admission of certain evidence).
III.
DISCUSSION AND ANALYSIS
¶7 The facts relevant to our discussion are not in dispute. It is not disputed that the evidence in
question was compelled by the circuit court; Gonzalez was ordered by the court
in open court to display his teeth to the jury.
The dispute we address is solely one of law: whether this is the kind of evidence that
cannot be compelled without violating constitutional guarantees. Gonzalez gives two reasons the evidence
should not have been admitted. After
setting out briefly the relevant law, we will address the parties' arguments on
those two points.
A.
The Self-Incrimination Clause And
Body-As-Evidence Cases
¶8 The United States Supreme Court has, in cases in which the
self-incrimination clause has been invoked, repeatedly recognized that certain
distinguishing characteristics of a defendant may be used against him or her
even if they are incriminating. It
summarized its interpretation of the self-incrimination clause concisely in United
States v. Hubbell prior to starting its analysis in that case:
It is useful to
preface our analysis of the constitutional issue with a restatement of certain
propositions that are not in dispute. The term "privilege against
self-incrimination" is not an entirely accurate description of a person's
constitutional protection against being "compelled in any criminal case to
be a witness against himself."
The word
"witness" in the constitutional text limits the relevant category of
compelled incriminating communications to those that are
"testimonial" in character. As
Justice Holmes observed, there is a significant difference between the use of
compulsion to extort communications from a defendant and compelling a person to
engage in conduct that may be incriminating. Thus, even though the act may provide
incriminating evidence, a criminal suspect may be compelled to put on a shirt,
to provide a blood sample or handwriting exemplar, or to make a recording of
his voice. The act of exhibiting such
physical characteristics is not the same as a sworn communication by a witness
that relates either express or implied assertions of fact or belief.
United States v. Hubbell,
530 U.S. 27, 34-35 (2000) (footnotes omitted).
¶9 In clarifying what constituted testimonial evidence, the United
States Supreme Court has differentiated between "communications" from
the defendant and "his body as evidence": "The prohibition of compelling a man in
a criminal court to be witness against himself is a prohibition of the use of
physical or moral compulsion to extort communications from him, not
an exclusion of his body as evidence when it may be material." Schmerber v. California, 384 U.S. 757,
763 (1966) (quoting Holt v. United States, 218 U.S. 245 (1910) (emphasis
added)). "The distinction which has
emerged, often expressed in different ways, is that the privilege is a bar
against compelling 'communications' or 'testimony,' but that compulsion which
makes a suspect or accused the source of 'real or physical evidence' does not
violate it." Id. at
764. The Court has also described
testimonial evidence as "knowledge of facts [compelled from the defendant]
relating him to the offense," "his thoughts and beliefs" and
"evidence of a testimonial or communicative nature." Doe v. United States, 487 U.S. 201, 210,
213 (1988). In keeping with this
distinction, courts have held that there is no violation of the
Self-Incrimination Clause where a defendant is compelled to show his or her
body, or to display tattoos, scars, physique, or limbs.
¶10 However, the United States Supreme Court has recognized that some
physical evidence has a sufficiently testimonial aspect to warrant Fifth
Amendment protection. As we will explain, those cases arise when a
particular piece of compelled physical evidence reveals the thoughts of the
defendant and those thoughts are incriminating.
There are, then, two types of physical evidence: 1) physical evidence
(including the body) that does not have a sufficiently testimonial aspect to
warrant Fifth Amendment protection, and 2) physical evidence (including the
body) that does have a sufficiently testimonial aspect to warrant such
protection.
B.
Whether Gonzalez's Platinum Teeth Were Physical
Evidence With A "Testimonial Aspect"
¶11 Gonzalez's first argument is based on the proposition that physical
evidence can nonetheless have a testimonial aspect that turns the evidence into
the kind barred by the Fifth Amendment to the United States Constitution. Such cases turn on the fact that the evidence
in question in some way disclosed the contents of the defendant's mind.
¶12 Gonzalez argues that his platinum teeth constitute the kind of physical
evidence that has a "testimonial aspect" that conveys or communicates
an additional message, and that evidence is therefore testimonial for purposes
of Self-Incrimination Clause analysis.
He points to Pennsylvania v. Muniz, a case in which the United
States Supreme Court considered whether the Self-Incrimination Clause barred
use of several pieces of evidence obtained from the defendant following a drunk
driving arrest. The booking officer asked
Muniz his "name, address, height, weight, eye color, date of birth,
current age, and the date of his sixth birthday." Pennsylvania v. Muniz, 496 U.S. 582,
590 (1990).
¶13 As the lower court had found, "[b]oth the delivery and content
of Muniz's answers were incriminating," as both tended to support the
inference that Muniz was intoxicated. Id. The responses to all questions were spoken in
a slurred manner, and Muniz was unable to give the date of his sixth
birthday. Id. But for purposes of Fifth Amendment analysis,
the United States Supreme Court made a distinction between the manner in which
Muniz answered questions, which it deemed a physical attribute, and the
particular answer that revealed something about his thoughts——namely that he was so
impaired that he was unable to perform the simple calculation of the date of
his sixth birthday. Thus, it held,
Under
Schmerber and its
progeny . . . any slurring of speech
and other evidence of lack of muscular coordination revealed by Muniz's responses
to Officer Hosterman's direct questions constitute nontestimonial components of
those responses. Requiring a suspect to reveal the physical manner in which he
articulates words, like requiring him to reveal the physical properties of the
sound produced by his voice, does not, without more, compel him to provide a
"testimonial" response for purposes of the privilege.
Muniz,
496 U.S. at 592 (citation omitted).
¶14 In contrast, it held that Muniz's answer about his sixth birthday
did constitute testimonial evidence, because in answering it, he was forced to
disclose something about his mental faculties:
Muniz
was left with the choice of incriminating himself by admitting that he did not
then know the date of his sixth birthday, or answering untruthfully by
reporting a date that he did not then believe to be accurate (an incorrect
guess would be incriminating as well as untruthful). The content of his
truthful answer supported an inference that his mental faculties were impaired
. . . .
Id. at 599.
¶15 Another case where physical evidence took on a testimonial aspect
involved a subpoena for some tax documents that were later used as the basis
for criminal charges. What is
significant for our purposes is the fact that the United States Supreme Court
recognized that in some circumstances, compliance with a subpoena, which would
ordinarily not implicate the Self-Incrimination Clause, could have a
"compelled testimonial aspect."
Hubbell, 530 U.S. at 45.
In the context of a dispute over the terms of a grant of immunity, the
Court noted that "[w]e have held that 'the act of production' itself may
implicitly communicate 'statements of fact.' . . . Moreover . . . [the
custodian] may be compelled to take the witness stand and answer questions
designed to determine whether he has produced everything demanded by the
subpoena." Id. at 36-37.
¶16 As these two cases illustrate, the factual scenarios in which
physical evidence has a "testimonial aspect" sufficient to implicate
constitutional protections are quite limited and unusual. Gonzalez cites only Muniz as an
example of such a case; he argues that the platinum teeth evidence is like the
sixth-birthday answer in Muniz in that both reveal too much—that both allow jurors to
make improper negative inferences about the defendant. In response, the State simply points to the
similarities between the facts of this case and the extensive body-as-evidence
case law.
¶17 There is a crucial difference between the evidence in Muniz
and the evidence here. In Muniz,
the inference that concerned the United States Supreme Court was an inference
about the working of Muniz's mind that went directly to the crime of which he
was accused: driving while intoxicated.
The evidence the Court found problematic in Muniz was problematic
not because it supported a negative inference, but because the particular
negative inference it supported was "that his mental state was
confused," an inference about the contents of his mind that both parties
acknowledged was incriminating in a drunk driving prosecution. Gonzalez's display of his teeth did not
disclose anything to the jury about his mental state or the content or workings
of his mind.
¶18 Likewise, in Hubbell, where physical evidence was found to
have a testimonial aspect that brought it under the Fifth Amendment, the Court
found it significant that "the prosecutor needed the [defendant's]
assistance both to identify potential sources of information and to produce
those sources" and this required the defendant to take "the mental
and physical steps necessary to provide the prosecutor with an accurate
inventory of the many sources of potentially incriminating evidence." Hubbell, 530 U.S. at 42 (emphasis
added). It therefore concluded that the
defendant's "act of production had a testimonial aspect" that made
the Fifth Amendment applicable. Id.
at 45.
¶19 The content or message he claims the teeth convey——that he is tough
and fierce (and therefore more likely to assault someone)——is not the type of
disclosure that was problematic in Muniz; his teeth are not different
from other non-testimonial physical evidence, such as tattoos,[9]
scars,[10]
muscular arms,[11]
teeth,[12]
and results of an in-court test of defendant's eyes,[13]
that courts have deemed physical evidence whose compelled display violates no
constitutional right——even though some of those physical characteristics might
likewise carry negative connotations or communicate an image of fierceness or
toughness to some jurors.[14] Nor is there use made by the prosecutors of
Gonzalez that is comparable to the use made by the prosecutors of Hubbell's
mind that rendered the physical evidence testimonial in that case.
¶20 We therefore conclude that this is not a case in which physical
evidence has a "testimonial aspect" that renders its use
unconstitutional.
C.
Whether The Display Of Gonzalez's Platinum Teeth
Was Material
¶21 Gonzalez's
second argument is that the availability of other identification evidence
renders the display of his teeth for such purpose immaterial, and therefore
inadmissible. Gonzalez cites Schmerber
for the proposition that the law permits "[defendant's] body as
evidence" only "when it may be material." Schmerber, 384 U.S. at 763. He argues that because other identification
evidence existed, the display of his teeth was not for the purpose of
identification, and therefore it was not, as required, material. Specifically, he argues that "there was
no need for the jury to determine whether Mr. Gonzalez in fact had platinum
teeth,"[17]
because the victim had identified Gonzalez in court as the inmate he knew as
"Platinum."
¶22 Evidence is material if it is probative of a matter at issue. State
v. Becker, 51 Wis. 2d 659, 677, 188 N.W.2d 449 (1971). Evidence that is probative of a matter at
issue can be excluded on certain grounds, including that it is cumulative of
already presented evidence,[18]
but that decision is one the circuit court has discretion to make and is
subject to highly deferential review on appeal.[19]
¶23 Gonzalez's approach would appear to require us to hold that once
any evidence serves the purpose of identification, any additional evidence
offered to corroborate it would be immaterial.
This case turned on identification, and the State, which is held to a
high burden of proof, was entitled to corroborate the identification of the
defendant by any permissible means within the ordinary constraints of evidence
law and subject to the discretion of the circuit court. It is simply untenable to assert that a
central piece of identifying evidence is not material in a case like this. As the State notes, the relevance of the
evidence was great in a case where "the identity of the assailant remained
the central issue in dispute."
Given the heavy burden the State bears in a criminal prosecution, it is
inappropriate to limit otherwise admissible evidence on the grounds claimed
here.
IV.
CONCLUSION
¶24 We hold that the evidence of Gonzalez's platinum teeth was physical
evidence that does not have a testimonial aspect sufficient to implicate
constitutional protections. The
relevant question under the case law is whether the evidence in question
expresses, makes use of, reveals, or discloses the contents of the defendant's
mind. Teeth do not do so. We also hold that Gonzalez's teeth are
material to identification because they are probative of Gonzalez's identity, which was a
matter at issue. This case therefore
fits squarely into the long-recognized category of cases involving the body as
evidence, and does not offend constitutional principles against
self-incrimination. We therefore affirm
the court of appeals.
By the Court.—The decision of the court of
appeals is affirmed.
¶25 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I join
this opinion.
¶26 I write separately because this is one of the first opinions
written and mandated under a new procedure in this court for circulating and
mandating opinions. This case turns out
to be a good case to test our new procedure:
It is a unanimous opinion presenting one issue.
¶27 In keeping with this court's longstanding commitment to
transparency and open government and "for the advice of counsel practicing
in the Supreme Court and for information to the public,"
this court has published its internal operating procedures since 1984. This
practice of openness and transparency should be continued.
¶28 The Internal Operating Procedures presently set forth our procedure
for the preparation and mandate of a draft opinion as follows:
II.F. ASSIGNMENT
OF CASES . . . After the cases are assigned, the
justice prepares a draft opinion for circulation to the court.
G. OPINION
To place a draft opinion on the conference
agenda, a justice must circulate his or her draft opinion at least seven
calendar days prior to the conference. Justices are encouraged to submit
objections or suggestions in writing to the author, with copies to all justices
prior to the conference.
The court considers each draft opinion carefully as to
language and substance, and if there are any changes to be made that are of more
than minimal importance, the opinion is recirculated and reconferenced. Any
justice, whether in the majority or dissent, may at any time prior to the
issuance of the mandate ask that an opinion be held and reconferenced.
Each justice who elects to write an opinion concurring
in or dissenting from the court's opinion ordinarily announces that intention
at an opinion conference. The author of
a concurring or dissenting opinion and a justice who has asked that an opinion
be held should give first priority to the concurring or dissenting opinion and
to the opinion being held. Justices must
circulate concurring or dissenting opinions and remove the hold on any opinion
before circulating opinions in cases assigned to them. Any justice may reconsider his or her vote on
the court's decision or opinion until the decision is mandated.
. . . .
I. MANDATE
The court's decision in a case is
mandated promptly upon approval of the opinion by the court and upon
notification by the chief justice to the clerk. The court's opinion is issued simultaneously
with any concurring or dissenting opinions.
When a decision is ready to be mandated, the court's
opinion, along with any concurring or dissenting opinions, is transmitted to
the clerk's office where it is reviewed and assigned a public domain citation. The case name and number of opinions that are scheduled
for release are ordinarily posted on the court's website two days prior to the
scheduled release date. On the day of
mandate, the clerk's office telephones the attorneys for the parties, notifying
them of the court's decision,
releases the opinion to the parties and makes copies of the opinion available
for public inspection. The opinion is
also posted to the court's website. The
opinion remains subject to further editing and modification. The office of the
clerk arranges for the publication of the final version of the opinion in the
official publications.
¶29 The new procedure was adopted on September 25, 2014, by a divided
court. In adopting this new procedure, regrettably
(in my opinion) the court did not consider the court's Internal Operating
Procedures (published in volume 6 of the Wisconsin Statutes); did not give
notice to or seek comments from the bench, bar, or public; and did not consult
the practices of other state courts.
¶30 A verbatim statement of the new procedure for opinion preparation
and mandate is as follows:
FIRST: Within 10
days after the first circulation of a majority opinion, each justice shall
declare by email to all justices participating in the case in one of four ways:
(1) joining the opinion; (2) joining the opinion if specifically described
changes are made; (3) concurring; or (4) dissenting.
SECOND – MAJORITY OPINION: Within 10 days of receiving a request for
specifically described changes, the author of the majority opinion shall
consult among members of the majority to determine whether some or all of the
specifically described changes are acceptable.
If some or all are acceptable, the majority opinion shall be revised and
recirculated within 14 days after the initial 10 day consultation period. If some or all of the specifically described
changes are not acceptable to the majority who support the first circulation,
the justice whose changes were not accepted shall declare by email that he or
she joins the majority opinion, notwithstanding the lack of changes that were
requested, or that he or she will write separately. A justice who asked for changes in the
majority opinion and does not join the majority opinion shall declare a
concurrence or dissent and circulate his or her separate writing within 21 days
of circulation of the revised majority opinion or the determination that the
majority opinion will not be revised to meet his or her request whichever
occurs first.
SECOND – SEPARATE WRITINGS: Whether concurring or dissenting, a justice
who declares a separate writing in response to the first circulation of a
majority opinion has 30 days after the justice's declaration to circulate his
or her separate writing. No new majority
opinions shall be circulated by justices who are writing separately.
THIRD: Upon
circulation of a separate opinion, the author of the majority opinion has 14
days in which to revise, and upon receipt of those revisions, dissents and
concurrences have 14 days to respond to the majority's revision. The revision of dissents and concurrences
shall not create a new opinion, but shall respond only to revisions in the
majority opinion. (In the past, some
justices circulated cursory separate opinions in order to be able to circulate
another majority opinion and then extensively revised the separate opinion,
creating unnecessary delay. We are
attempting to prevent this delay-causing practice by limiting the revisions to
separate opinions.)
Upon recirculation of the majority opinion and
recirculation of the separate writings, each justice shall, within 10 days, by
email to all justices participating in the case make a final declaration of
which opinion he or she is joining. If
during this process the opinion originally circulated as the majority opinion
does not garner the vote of a majority of the court, it shall be referred to in
separate writings as the "lead opinion." If a separate writing garners the vote of a
majority of the court thereby changing the mandate of the opinion, it shall be
revised as the majority opinion within 14 days of the vote of the court. During that same 14 day period, other
separate writings shall be revised to indicate their status as concurrences or
dissents to the new majority opinion.
The majority opinion and the separate writings shall be mandated upon
final declaration.
Within 5 days of mandate, the majority opinion shall be
placed in the release drive; within 5 days after that event, the separate
writings also shall be placed in the release drive for transmittal of all
writings to the clerk's office for release to the public, unless release of
separate writings is delayed as required by step "FOURTH" below.
FOURTH: If
during the course of a separate writing, the author cites to a case then
pending before us for which the opinion of the court has not been released, the
majority opinion shall be released with the designation, "separate
opinion(s) to follow," unless the citation can be replaced with ellipses
in which case the separate opinion shall be released with the majority opinion
and the ellipses shall be replaced with the omitted citation when the cited
opinion is released. There shall be no
further changes to the separate writings after mandate. Separate writings for which the citation
cannot be replaced with ellipses shall be released when the then unreleased
decision that was cited in the separate opinion is released.
FIFTH: No one
justice may block the release of a majority opinion by a "Hold." It shall take the affirmative vote of the
majority of participating justices to block the release of a majority
opinion. No one justice may tie together
the release of two pending cases. It
shall take the affirmative vote of a majority of participating justices in each
case to tie together the release of two pending cases.
SIXTH: Majority
opinions assigned in September, October and November shall be circulated no
later than January 31. Majority opinions
assigned in December, January and February shall be circulated no later than March
31. Majority opinions assigned in March
and April shall be circulated no later than May 31.
There will be no court conferences on circulated
opinions unless a majority of justices participating in the case request court
conference on the circulated opinion(s) in that case.
The times for responding to majority opinions first
circulated after April 15 will need to be shortened from what is set forth
above. We will make a decision about
what timelines are needed during April 2015 when we see how many opinions
remain outstanding.
There also may need to be some flexibility when
applying this process to the opinions due by January 31 and March 31. Flexibility may be needed generally because
this is a new process. It is anticipated
that if a justice has tried but cannot meet the expected deadlines, he or she
will request an extension for a specified time so all will understand where the
court is in opinion processing and release.
¶31 The
flow chart accompanying the narrative is as follows:
The following is a flow chart representing the revised
Opinion Preparation & Mandate proposal.
For clarity, the chart is broken into two separate pieces: the first,
directly below, represents the process for initial circulations of all
opinions; the second, on page two, represents the process from circulation of
all opinions through revisions and mandate.
General notes:
All
deadlines are calendar days.
• The maximum time under this proposal
from first circulation of a majority opinion to mandate is 107 days. This assumes that all maximum time is taken
and each of the following occurs:
• A Justice does not declare
a concurrence or dissent until after the majority has been recirculated and
incorporated suggested changes; and
• The majority flips,
triggering the additional 14 day revision period.
• The five day periods for placing opinions in
the Release Drive following mandate are for cite checking and spelling and
grammar revisions.
¶32 Key
portions of the Internal Operating Procedures (which we have generally followed
since before 1984 up until September 2014) are as follows: All opinions were discussed in conference,
often several times; any justice could ask that a draft opinion be held and
reconferenced; and majority opinions would be released simultaneously with any
concurring or dissenting opinions.
¶33 The new procedure departs from our longstanding procedure for
opinions and mandates in several important ways. Starting in September, draft
opinions cannot be discussed at conference.
To hold a conference on a draft opinion, a vote of four justices is
required. No single justice can hold an
opinion; a vote of four justices is required.
Furthermore, in certain circumstances a majority opinion may be released
without being accompanied by a concurring or dissenting opinion; the drafted
concurring and dissenting opinions must be released at a later date. These provisions, as well as the short time
periods allowed for separate writings, are unwelcoming to concurrences and
dissents.
¶34 Ambiguities and cracks in
the process have already appeared. Some
were identified during the adoption of the new procedure, others not.
¶35 Changing the ways the court
does its business is important.
Circumstances change, personnel changes, and technology changes. Timely release of our opinions after oral
argument is important for the litigants, for the bench and bar, for the public,
and for this court. We should not,
however, sacrifice thoughtful discussion and careful collegial review of draft
opinions just for the sake of speed. For
at least the last 50 years, cases heard from September 1 through June have been
completed by June 30 (unless additional briefing was required), regardless of
the procedure used for circulating and mandating opinions.
¶36 Only time will tell whether
this new procedure will produce thoughtful, precise opinions that are released
more promptly, or whether it will even produce opinions that are released more
promptly. At this time, we are
encountering the ambiguities and uncertainties of the procedure and the
different timelines for numerous circulating opinions (some addressing similar
issues). Figuring out due dates and
maintaining a flow chart for each draft opinion is unwieldy and difficult
because of ambiguities in calculating time periods and numerous redrafts that
are not accounted for in the narrative or flow chart.
¶37 Changes in the newly
adopted procedure are being requested and should be given serious
consideration. Improvements may make
this experimental new procedure more satisfactory.
¶38 The court might even
consider a simpler procedure to accomplish the goals of reducing conferences
and establishing deadlines. For example,
there might be an initial conference discussion of a draft opinion to identify
the areas of strength and weakness, to identify areas of agreement and
disagreement, and to determine whether opinions involving the same legal issues
need to be put on the same timeline for harmonization. Deadlines might be
established at this conference for each opinion to fit the circumstances, such
as the extent of revisions required, the number and approaches of separate
writings, and the work of the court and the individual justices.
¶39 There may be other and
better suggestions for the court to consider.
¶40 For the reasons set forth,
I write separately.