2011 WI 68
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Supreme Court of Wisconsin |
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Case No.: |
2008AP697-CR |
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Complete Title: |
State of Wisconsin, Plaintiff-Appellant, v. Dimitri Henley, Defendant-Respondent. |
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ORDER ON MOTION TO FILE NON-PARTY BRIEF |
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Order Filed: |
July 12, 2011 |
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Submitted on Briefs: |
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Oral Argument: |
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Source of Appeal: |
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Court: |
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County: |
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Judge: |
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Justices: |
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Concurred: |
ZIEGLER, J. concurs (Opinion filed). PROSSER, J. and GABLEMAN, J. join concurrence. |
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Dissented: |
ABRAHAMSON, C. J., BRADLEY, J. and CROOKS, J. dissent
(Opinion filed, combined authorship). |
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Not Participating: |
ROGGENSACK, J. withdrew from participation. |
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2011 WI 68
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF |
IN SUPREME COURT |
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State of Plaintiff-Appellant, v. Dimitri Henley, Defendant-Respondent. |
FILED JUL 12, 2011 A. John Voelker Acting Clerk of Supreme Court |
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Order on motion
to file non-party brief.
¶1 On December 8, 2010, the court granted the motion of Yasmine Clark
to file a non-party amicus brief in support of
¶2 On December 18, 2010, Yasmine Clark filed an amicus brief in
support of
¶3 Upon review and discussion of the amicus brief, three justices, Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, would grant the relief requested by the amicus. See attached writing by Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks.
¶4 Upon review and discussion of the amicus brief, three justices, Justice David T. Prosser, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman, have concluded that the amicus brief should not have been accepted because it does not address any issue in the underlying motion for reconsideration, and thus, the motion to accept the amicus should have been denied. See attached writing by Justice Annette Kingsland Ziegler.
¶5 The court is equally divided as to whether the relief requested by the amicus should be granted.
¶6 Justice Patience Drake Roggensack withdrew from participation.
¶7 SHIRLEY S. ABRAHAMSON, C.J., ANN WALSH BRADLEY, J., and N. PATRICK CROOKS, J. We disagree with Justice David T. Prosser, Justice Annette K. Ziegler, and Justice Michael J. Gableman that the motion to accept the amicus brief should now be denied.
¶8 We stand by the full court's decision on December 8, 2010, to
accept the amicus brief urging the court to reconsider footnote 29 in ¶75 of the majority opinion
in State v. Henley, 2010 WI 97, 328
¶9 We would grant the relief requested by the amicus to revise
footnote 29 in State v. Henley to clarify the
I
¶10 Yasmine Clark filed a motion on November 23, 2010, asking the court
to accept an amicus brief in support of Henley's timely filed motion to
reconsider the Henley opinion.
Yasmine Clark, a minor who is asserting lead poisoning claims against a
former manufacturer, asserts that footnote 29 in the
¶11 With all justices participating, the court granted Ms. Clark's
motion on December 8, 2010. After the
motion was granted and the amicus brief was filed, Justice Roggensack withdrew
from participation in deciding Ms. Clark's grounds for reconsideration of the
¶12 At the time of granting the amicus's motion to file a brief, the
court was fully aware that the amicus was seeking revision of footnote 29 and
the reasons for the request, that the amicus was not a party, and that the time
for filing a motion for reconsideration had elapsed. No party to the
II
¶13 The duty of this court is to clarify the law, not to create more confusion. Here's an opportunity to help create clarity when we unintentionally may have caused confusion. Instead of taking this opportunity the court rejects it, possibly creating more confusion and providing the opportunity for continued conjecture by litigants and other courts.
¶14 The amicus calls our attention to footnote 29, ¶75 of the
Finally, we note that this court's unwarranted
expansion of its own powers through Article I, Section 9 has recently been
checked. In Gibson v. Am. Cyanamid
Co., the Eastern District of Wisconsin held that this court's holding Thomas
v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523, which created a
new remedy under Article I, Section 9, was arbitrary and irrational and
violated the Fourteenth Amendment. Gibson,
2010 U.S. Dist. LEXIS 59378, slip op., *16-18 (E.D.
¶15 In its motion for leave to file an amicus brief, the amicus asks the court's revision of this footnote for the following reasons, which were amplified in the brief filed:
1. Nothing
in
2. The
footnote is pure dicta, that is, totally unnecessary to determine any issue in
the
3. Lead
pigment manufacturers have relied on the footnote to imply that a majority of
the court disfavors the risk contribution doctrine upon which Ms. Clark relies,
notwithstanding that it has been a feature of
4. Lead
pigment manufacturers have drawn the implication that the justices joining the
5. Reading
the
6. The Gibson decision, a federal district court decision, is not binding on this court on a federal constitutional question.[4]
¶16 We three were in the majority in the Thomas case. We three were in dissent in
¶17 For the reasons set forth, we would not now retroactively deny the amicus motion for relief, and we would now delete or modify footnote 29 as the amicus requests.
¶18 ANNETTE KINGSLAND ZIEGLER, J. Dimitri
Henley (Henley), a party to State v. Henley, 2010 WI 97, 328 Wis. 2d 544, 787 N.W.2d 350, filed with this
court a motion for reconsideration of our July 21, 2010, decision.
¶19 Clark is not a party to
¶20 For the foregoing reason, I respectfully submit this writing.
¶21 I am authorized to state that Justices DAVID T. PROSSER and MICHAEL J. GABLEMAN join this writing.
[1] "A motion for reconsideration may result in the court's issuing a corrective or explanatory memorandum to its opinion without changing the original mandate." Supreme Court Internal Operating Procedures II.J.
[2] In a court filing, one
manufacturer recited the holding of the federal district court and citing the
[3] In a court filing, another
manufacturer, citing the
[4] Elections Bd. Of
State of Wis. v. Wis. Mfrs. & Commerce, 227
The Gibson
decision has been appealed to the United States Court of Appeals for the
Seventh Circuit. Gibson v. Am.
Cyanamid Co., 750 F. Supp. 2d 998 (E.D. Wis. 2010).
In
contrast to the Gibson decision, on April 5, 2011, Judge Lynn Adelman, a