State v. Stuart

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 44. (concurring in part, dissenting in part). I agree with the court's disposition of the issues reached in the opinion. I write to comment on two other aspects of the majority opinion.

¶ 45. First, I would not remand the remaining issues to the court of appeals for decision. These issues were presented and briefed to this court. This court should decide them.

¶ 46. Second, on reflection I believe that this court should have given a reason for our previous ruling, even in an emergency situation. We shall have to try harder in the future.

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¶ 47. This case is here on certification from the court of appeals. When this court takes jurisdiction over an appeal upon certification from the court of appeals, the court takes jurisdiction of the entire appeal.1 The court of appeals does not certify, and this court does not take jurisdiction over, discrete legal questions within the appeal.2

¶ 48. Although I believe this court has the power to remand issues to the court of appeals, I would have this court decide the entire appeal in this case in the interest of judicial economy, speedy resolution of appeals, reduced costs to the litigants, and finality of decisions. Remand is a wasteful duplication of deci-sional effort, even when, as in this case, the court of appeals did not consider the issues being remanded as worthy of certification.3

¶ 49. We are familiar with the parties' arguments. We are familiar with the record. Having decided several issues puts us in a better position than the court of appeals to decide the remaining issues with minimum *649delay and maximum efficiency.4 No reason exists why we could not render a decision on the remaining issues today.

¶ 50. Our remand to the court of appeals will delay the final decision on these issues. The court of appeals will have to go over the briefs and the record we have already laboriously reviewed, and the losing party on the remaining issues in the court of appeals may seek further review in this court, causing additional delay. Should we accept that party's petition for review, we will find ourselves, years later, where we are today.

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¶ 51. I agree with the majority opinion that it is good practice for courts to give reasons for their decisions.5 I have written previously urging the court to explain its decisions. On reflection I think we (myself included) erred in failing to explain our prior order in the present case.

¶ 52. In deciding legal issues this court owes litigants and the public an explanation for its rulings. A statement of explanation is essential to the judicial decision making process; it is of benefit to judges, litigants, and the public.

When reasons are announced and can be weighed, the public can have assurance that the correcting process is working. Announcing reasons can also provide public understanding of how the numerous decisions of the system are integrated. In a busy court, the reasons are an essential demonstration that the court did in fact fix its mind on the case at hand. An unreasoned decision has very little claim to acceptance by the defeated party, and is difficult or impossible to accept as an act reflecting systematic application of legal principles. Moreover, the necessity of stating reasons not infrequently changes the results by forcing the judges to come to grips with nettlesome facts or issues which their normal instincts would otherwise cause them to avoid.

Paul D. Carrington et al., Justice on Appeal, 10 (1976).

¶ 53. Ironically, this court commits the same mistake of failing to explain its rulings today. The court remands issues to the court of appeals instead of deciding them itself, without any explanation. In some *651cases in the past, we have decided all the issues.6 In other cases in the past, we have remanded issues to the court of appeals.7 The court has not explained the reason for remand or no remand.8 Because counsel are unable to predict whether this court will decide issues or remand them to the court of appeals, they are uncertain whether to raise and brief all issues in this court or just request a remand.

¶ 54. For these reasons, I write separately.

¶ 55. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

Majority op., ¶ 19.

See Wis. Stat. § (Rule) 809.61.

See Crown Life Ins. Co. v. LaBonte, 111 Wis. 2d 26, 45, 330 N.W.2d 201 (1983) (Abrahamson, J., concurring and dissenting).

The question whether this court should decide all issues or remand some to the court of appeals arises in certifications, like this case, or in cases before us on petition for review. In the latter type of case the court of appeals may have decided only the determinative issues and may not hqve addressed the other issues raised on appeal. If this court reverses the court of appeals on the determinative issues, the parties are entitled to appellate review on the remaining issues. Sometimes this court decides these remaining issues if briefed and other times we remand them to the court of appeals. See, e.g., State v. Sarabia, 118 Wis. 2d 655, 674, 348 N.W.2d 527 (1984) (Abrahamson, J., concurring and dissenting); Soquet v. Soquet, 117 Wis. 2d 553, 561, 345 N.W.2d 401 (1984) (Abrahamson, J., concurring); Shopper Advertiser, Inc. v. DOR, 117 Wis. 2d 223, 240, 344 N.W.2d 115 (1984) (Abrahamson, J., concurring and dissenting); Radtke v. City of Milwaukee, 116 Wis. 2d 550, 558, 342 N.W.2d 435 (1984) (Abrahamson, J., concurring and dissenting); La-Bonte, 111 Wis. 2d at 45 (Abrahamson, J., concurring and dissenting).

Majority op., ¶ 28.

See, e.g., Sarabia, 118 Wis. 2d at 666.

See, e.g., State v. Marshall, 113 Wis. 2d 643, 656, 335 N.W.2d 612 (1983); State v. McConnohie, 113 Wis. 2d 362, 375, 334 N.W.2d 903 (1983); State v. Derenne, 102 Wis. 2d 38, 48, 306 N.W.2d 12 (1981).

For my explanation of why a remand of issues was appropriate in a particular case, see Soquet, 117 Wis. 2d at 561 (Abrahamson, J., concurring).