Dissenting in State v. Weber, the first decision filed this term, Justice Ann Walsh Bradley worried that readers might misconstrue the opinion authored by Justice Ziegler as the “majority opinion.” Justice Ziegler’s opinion appeared at the front of the published decision—where one would expect to find a majority opinion—but it should be viewed, Justice Bradley specified, as a “lead opinion,” devoid of any precedential value. Acknowledging that one would search in vain for the definition of a “lead opinion” in the court’s Internal Operating Procedures, Justice Bradley offered her own explanation: “We have said ‘that a lead opinion is one that states (and agrees with) the mandate of a majority of the justices, but represents the reasoning of less than a majority of the participating justices.’”
She was quoting a definition published just a few months earlier in a joint dissent that she had authored with Justice Abrahamson in State v. Lynch. Here the need for a definition seemed even more pressing, as the initial opinion in the decision—written by Justice Gableman and designated by the court as the “lead opinion”—disagreed with the outcome of the court’s own ruling. Attaching the label “lead opinion” to one at variance with the result of the court’s decision puzzled Justices Bradley and Abrahamson, who did not shroud their exasperation: “Reading Justice Gableman’s writing, designated as the ‘lead’ opinion, … makes us feel like we’ve stepped into ‘the Twilight Zone.’” Such passages in their joint dissent—striking to court watchers—drew a similarly remarkable condemnation from Chief Justice Roggensack: “defamatory labeling of colleagues’ writings” “bottomed in a desire to injure rather than to inform.” But she did not attempt to explain the casting of Justice Gableman’s writing as the “lead opinion.”[Continue Reading…]
