Gableman drives a judicial Fiat

Recently minted Wisconsin Supreme Court Justice Michael Gableman this morning throws down his inaugural written opinion for the court, a partly concurring, partly dissenting contribution to a decision called Plastics Engineering Co. v. Liberty Mutual* ("Plenco").

Plenco is not a case that came up through the Wisconsin State courts. Rather, it's a federal asbestos injury/insurance lawsuit and the reason the Wisconsin Supreme Court was asked to address it is because the United States Court of Appeals for the Seventh Circuit in Chicago requested clarification of certain generally applicable questions of Wisconsin law that might have a bearing on the federal courts' eventual disposition in Plenco.

In other words, the federal Seventh Circuit is not going to unilaterally forge ahead with its own potentially unique interpretations of Wisconsin law that is currently unclear which may affect not only the specific Plenco controversy but also future Wisconsin litigation just in case the Wisconsin courts would have decided those questions of State (as opposed to federal) law differently.

Therefore, the Seventh Circuit "certified" to the Wisconsin Supreme Court three broad questions in insurance law.

As Chief Justice Shirley Abrahamson correctly emphasizes as a threshold matter in her own concurring opinion, Wisconsin has a separate statute (§ 821.01) dealing with the Supreme Court's function under such circumstances.

That is, it is not to decide the merits of the particular case (i.e., find in favor of one or the other parties), but rather clarify Wisconsin law generally so as the federal court itself might decide the merits of the dispute before it, consistent with those broader clarifications.

A danger in determining the particular merits of Plenco, the Chief Justice suggests, is that if and when one of the parties ultimately loses in federal court, it can come back into a Wisconsin jurisdiction with a readymade Supreme Court decision in hand, a circumstance that is inconsistent with — if not contrary to — § 821.01.

As the C.J. observes:

Because the majority tries so hard to limit its opinion to the language of the insurance policies at issue and the particularized facts of the instant case, I am concerned that the majority opinion has not responded to the certified questions of law but has instead decided the merits of the instant case.

Perhaps eager to demonstrate his repeatedly advertised commitment to the "plain language of the law," Gableman, laboring in solitary dissent, goes even further, for all intents and purposes actually finding in favor of the insurance company, Liberty Mutual (surprise).

Unfortunately, he's apparently disregarded the plain language of
§ 821.01 (he never once mentions it) which is, somewhat ironically, a legislative directive intended to limit the role of the State courts, such limited role being yet another of Gableman's campaign planks.

To be sure, Chief Justice Abrahamson's approach is considerably more in accord with so-called conservative judicial principles (more specifically, "judicial restraint"). On the other hand, should the C.J.'s stated concerns come to fruition back home again in Wisconsin, Justice Gableman's lone dissent will likely be of little avail.

* 2009 WI 13 (.pdf; 55 pgs.) [.html version]