When Kirbie Knutson and I began clerking for Justice Abrahamson in September 1977, she was not only the newest member of the court, but also — since hers was the only chambers with a magnetic card typewriter — the most technologically advanced. I point this out to dazzle Peter Chen, whose recollections of Shirley’s “ruthless” commitment to ever more research, analysis, revision, and re-editing we all can relate to and love. Just imagine “ruthless” before computers, Peter! (Spoiler alert: She made it work.)I am not surprised that so many of Shirley’s clerks have written to describe, with fondness and pride, […]
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I was the first clerk that SSA hired. Her first year, she inherited William Guis, the clerk Justice Wilkie had hired. (Couldn’t have done better.) I clerked for Shirley her second year on the court, 1977-78, with Molly Martin. This photo is from my wedding in September of 1979. Shirley officiated and it took place in her yard on Lake Monona. Pictured are Marj Riley, Shirley’s secretary; Molly Martin; SSA and me. Marj had worked for the court for many years and was very pleased to be part of the first all-female chambers.
A passenger injured in a car accident sued the county government and its insurers for damages. A statute limited the amount of damages that a government tortfeasor must pay, but not the amount a private tortfeasor would pay for the same accident. Abrahamson held that the legislature had a rational basis for limiting the damages a government tortfeasor must pay: it preserves public funds to ensure that the government can serve the citizenry. However, she further held that if the government tortfeasor has insurance coverage exceeding the statutory limit, the injured party may be compensated from that excess coverage.
A Wisconsin statute provided that in a personal injury action a plaintiff may recover punitive damages from a tortfeasor who showed “an intentional disregard of the rights of the plaintiff.” Writing for the majority, Abrahamson held that this statute requires the plaintiff to prove that the tortfeasor was aware that its conduct was substantially certain to result in a disregard of the plaintiff’s rights, not that the tortfeasor intended to cause the harm that the plaintiff suffered.
A soccer player sued an opposing team’s players for leg injuries suffered during an organized game. In most states, participants in contact sports could recover damages for injuries only if they were inflicted intentionally or through reckless misconduct. Writing for a majority, Abrahamson held that the injured player need only prove negligence—that the player who caused the injury failed to use that degree of care which would be exercised by a reasonable person under the circumstances. Applied to recreational sports, this standard requires consideration of matters such as the sport’s risks, rules, customs, and level of physical contact.
State ex rel. Universal Processing Services of Wisconsin, LLC v. Circuit Court for Milwaukee County, 2017 WI 26, 374 Wis. 2d 26, 892 N. W.2d 267
This case concerned whether a circuit court impermissibly delegated its power to a referee to decide litigation on the merits. Writing for the majority, Abrahamson noted that the Wisconsin Constitution vests the “judicial power” of the state in the courts. She surveyed the history of referees (also called “special masters”) from the time Wisconsin was a territory through modern federal practice. She held that while referees are a valuable adjunct to the judicial process, they may not assume the place of a judge.
People who cannot afford lawyers often try to represent themselves in court. Their pleadings are difficult to decipher and do not follow the law. In ordinary civil cases, courts look at the allegations of the pleading, not the label, and liberally construe it to determine whether it states a claim for relief. In this case, Abrahamson held that the same rule applies to prisoners who file court pleadings without the assistance of a lawyer.
Wisconsin’s campaign finance law prohibits candidates for elective office from coordinating spending by outside groups on “issue advocacy.” “Issue ads” do not expressly ask the public to vote for or against a candidate, but they often attack a candidate’s opponent. In this case, the majority held Wisconsin’s law unconstitutional because the First Amendment and the Wisconsin Constitution only permit states to regulate “express advocacy.” Abrahamson dissented, arguing that by adopting a faulty interpretation of the Wisconsin law and the First Amendment, the majority subjected the democratic process to potential corrupting influences. Two years later, the United States Supreme Court summarily affirmed a lower court decision holding that under the First Amendment states may indeed regulate issue advocacy. Independence Institute v. Federal Election Commission, 216 F. Supp.3d 176 (2016), aff’d 137 S. Ct. 1204 (2017).