State v. Dimitri Henley
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2011 WI 68
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2008AP697-CR
State of Wisconsin,
Plaintiff-Appellant,
v.
Dimitri Henley,
Defendant-Respondent.
ORDER ON MOTION TO FILE NON-PARTY BRIEF
ORDER FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
July 12, 2011
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ZIEGLER, J. concurs (Opinion filed).
PROSSER, J. and GABLEMAN, J. join concurrence.
ABRAHAMSON, C. J., BRADLEY, J. and CROOKS, J.
dissent (Opinion filed, combined authorship).
ROGGENSACK, J. withdrew from participation.
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.
No.
2008AP697-CR
STATE OF WISCONSIN
:
IN SUPREME COURT
State of Wisconsin,
FILED
Plaintiff-Appellant,
JUL 12, 2011
v.
A. John Voelker
Acting Clerk of Supreme
Court
Dimitri Henley,
Defendant-Respondent.
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
Henley's motion for reconsideration.
¶2
brief
On December 18, 2010, Yasmine Clark filed an amicus
in
support
of
Henley's
motion
for
reconsideration.
Henley's motion for reconsideration has been denied.
See per
curiam of July 12, 2011.
¶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.
No.
¶4
2008AP697-CR
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
reconsideration,
should
have
been
issue
and
thus,
denied.
in
the
the
motion
See
underlying
to
attached
motion
for
accept
the
amicus
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
participation.
2
Roggensack
withdrew
from
No.
¶7
2008AP697-CR.ssa
SHIRLEY S. ABRAHAMSON, C.J., ANN WALSH BRADLEY, J.,
and N. PATRICK CROOKS, J.
Prosser,
Justice
Annette
We disagree with Justice David T.
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 Wis. 2d 544, 787 N.W.2d 350.
We should not now
retroactively deny the amicus's motion to file a brief.
¶9
We would grant the relief requested by the amicus to
revise footnote 29 in State v. Henley to clarify the Henley
opinion.1
I
¶10
asking
Yasmine Clark filed a motion on November 23, 2010,
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
Henley criminal case is affecting her pending civil lead paint
case.
¶11
With all justices participating, the court granted Ms.
Clark's
motion
granted
and
on
the
December
amicus
8,
brief
2010.
was
1
After
filed,
the
Justice
motion
was
Roggensack
"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.
1
No.
2008AP697-CR.ssa
withdrew from participation in deciding Ms. Clark's grounds for
reconsideration of the Henley opinion.
¶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 Henley
case objected to the amicus's request.
II
¶13
The duty of this court is to clarify the law, not to
create more confusion.
clarity
when
Instead
of
we
Here's an opportunity to help create
unintentionally
taking
this
may
opportunity
have
the
caused
court
confusion.
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 Henley opinion, which states as follows:
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. Wis. June 15, 2010).
Despite the dissent's
broad description of our inherent authority, we simply
do not have the authority to craft any remedy we want.
¶15
amicus
In its motion for leave to file an amicus brief, the
asks
the
court's
revision
of
this
footnote
for
following reasons, which were amplified in the brief filed:
2
the
No.
1. Nothing
Thomas
in
case
Henley,
or
a
criminal
lead
paint
case,
2008AP697-CR.ssa
implicates
poisoning
or
the
the
risk
contribution doctrine.
2. The footnote is pure dicta, that is, totally unnecessary
to determine any issue in the Henley case.
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 Wisconsin
law since 1984.2
4. Lead pigment manufacturers have drawn the implication
that the justices joining the Henley majority opinion
would overturn the Thomas decision.3
5. Reading the Henley footnote as overturning the Thomas
decision is unreasonable inasmuch as Justice Roggensack
recused herself from Thomas and she would not join a
footnote that overturned the Thomas decision.
6. The Gibson decision, a federal district court decision,
is not binding on this court on a federal constitutional
question.4
2
In a court filing, one manufacturer recited the holding of
the federal district court and citing the Henley footnote
stated:
"The Wisconsin Supreme Court then noted the federal
court's decision approvingly."
3
In a court filing, another manufacturer, citing the Henley
footnote, stated:
"This State's Supreme Court recently
acknowledged that the district court's holding in Gibson, albeit
a Federal Court decision, has 'checked' the 'unwarranted
expansion of its own powers through Article I, Section 9.'"
3
No.
¶16
three
2008AP697-CR.ssa
We three were in the majority in the Thomas case.
were
in
dissent
in
Henley.
Obviously
we
would
We
have
written in dissent in Henley about footnote 29 had we thought
the majority was overturning the holding of Thomas, commenting
or
casting
doubt
in
a
substantive
manner
on
the
holding
Thomas, or casting doubt on the risk contribution doctrine.
of
We
do not read footnote 29 as endangering the ruling of the Thomas
lead paint case.
Nevertheless, because the amicus motion (which
was granted by the full court on December 8, 2010) and the
amicus
brief
(which
was
filed
on
December
17,
2010)
have
demonstrated that this footnote can be misused, we would now
4
Elections Bd. Of State of Wis. v. Wis. Mfrs. & Commerce,
227 Wis. 2d 650, 670 n.19, 597 N.W.2d 721 (1999) ("On federal
questions, this court is bound only by the decisions of the
United
States
Supreme
Court.");
State
v.
Harris,
199
Wis. 2d 227, 245 n.10, 544 N.W.2d 545 (1996) ("[A]lthough they
may at times be informative, we are in no way bound by decisions
of the federal circuit courts even if they are on all fours with
the case before us."); Thompson v. Village of Hales Corners, 115
Wis. 2d 289, 307, 340 N.W.2d 704 (1983) (quoting with approval
United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76
(7th Cir. 1970):
"[B]ecause lower federal courts [in contrast
to the United States Supreme Court] exercise no appellate
jurisdiction over state tribunals, decisions of lower federal
courts are not conclusive on state courts.").
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 United States district court judge in the
Eastern
District
of
Wisconsin,
ruled
that
allowing
the
plaintiffs in four lead paint suits to proceed against defendant
manufacturers does not violate the constitutional rights of the
defendants.
See Burton v. Am. Cyanamid Co. (Case No. 07-C0303), Owens v. Am. Cyanamid Co. (Case No. 07-C-0441); Stokes v.
Am. Cyanamid Co. (Case No. 07-C-0865); Sifuentes v. Am. Cyanamid
Co. (Case No. 10-C-0075).
4
No.
delete
the
footnote
or
explain
that
this
2008AP697-CR.ssa
footnote
does
not
not
now
overturn the rule of law set forth in the Thomas case.
¶17
For
the
reasons
set
forth,
we
would
retroactively deny the amicus motion for relief, and we would
now delete or modify footnote 29 as the amicus requests.
5
No.
¶18
(Henley),
ANNETTE
a
party
KINGSLAND
to
ZIEGLER,
State
v.
J.
Henley,
2008AP697-CR.akz
Dimitri
2010
WI
Henley
97,
328
Wis. 2d 544, 787 N.W.2d 350, filed with this court a motion for
reconsideration of our July 21, 2010, decision.
for reconsideration has been denied.
Henley's motion
Yasmine Clark (Clark), a
non-party, filed an amicus curiae brief in support of Henley's
motion for reconsideration.
Justice Prosser, Justice Gableman,
and I conclude that this court should not have granted Clark's
motion to accept her amicus curiae brief.
¶19
Clark is not a party to Henley.
Instead, Clark is the
plaintiff in a pending civil case before the Milwaukee County
Circuit Court, Clark v. 3738 Galena LLC, No. 2006CV12653, in
which she claims that several former manufacturers of white lead
carbonate pigments are liable for her lead poisoning under a
theory of risk-contribution.
Clark herself acknowledges that
"[t]he issues before the Court in Henley are totally unrelated
to the Clark case or any other lead poisoning case proceeding on
the basis of the risk contribution doctrine."
Nevertheless,
Clark seeks to use Henley's reconsideration motion as a forum
for this court to amend a footnote in Henley, an unrelated,
criminal matter, and thereby presumably impact Clark's pending
case.
Moreover, Clark seeks relief from this court without us
having the benefit of hearing from the opposing side or any
competing point of view.
It is unprecedented for this court to
unilaterally amend a decision as requested by a non-party who
seeks relief in an unrelated, pending case, particularly when we
have not heard from both sides on the issue.
1
Accordingly, we
No.
respectfully
decline
to
address
the
issue
2008AP697-CR.akz
raised
by
Clark's
amicus curiae brief.
¶20
For the foregoing reason, I respectfully submit this
writing.
¶21
I
am
authorized
to
state
that
Justices
PROSSER and MICHAEL J. GABLEMAN join this writing.
2
DAVID
T.
No.
1
2008AP697-CR.akz
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