Honoring Wisconsin Supreme Court Chief Justice Shirley Abrahamson
A Tribute to Justice Shirley Abrahamson
Edward E. Robinson, WCJEF Chair and
a partner at Cannon & Dunphy, S.C.
Trailblazer. Driven. Tireless. Fair and impartial. Brilliant legal scholar. These are just a few of the many terms that describe Shirley Abrahamson.
In July of this year, Shirley Abrahamson stepped down from the Wisconsin Supreme Court after completing her fourth 10-year term. In her 43 years on the state’s highest court, almost half of them as our Chief Justice, she has left behind an unparalleled legacy, wherein she authored more than 535 majority opinions, 491 dissenting opinions, and 325 concurring opinions.1 These figures do not include the tens of thousands of petitions for review, bypasses, certifications and lawyer and judicial disciplinary cases to have come before the Court during her tenure. She has certainly earned her retirement.
Born in 1933 in New York City to Jewish Polish immigrants, Shirley Abrahamson has stated that she knew from an early age she wanted to be a lawyer. After graduating from New York University in three years, she attended the University of Indiana Law School, graduating in 1956 at the age of 21.[2] A trailblazer for women in the law, she graduated first in her class—the only female—and in 1976 went on to become the first woman to serve on the Wisconsin Supreme Court.[3] She became Chief Justice in 1996, and in 2013, she became the longest-serving Wisconsin Supreme Court Justice ever.[4]
For her part, Shirley Abrahamson has modestly attempted to downplay her trailblazer status, commenting in a video interview for Indiana University[5] that “I was there at the right time and I was in the right place. It was before many women went to law school, so there were opportunities and there was a trail that could be walked. But you know, there have been many women over many generations who blazed that trail so I could walk on it.” The trail she has blazed for others following in her footsteps is nothing short of extraordinary.
In terms of her legacy, Shirley Abrahamson will be remembered for her advocacy for new federalism, which stresses the importance of state constitutional law as affording additional protections and rights to individuals beyond those guaranteed by the federal Constitution. One area in which her opinions have stressed the additional protections afforded under the Wisconsin Constitution as compared to its federal counterpart is in connection with the individual right against unreasonable searches and seizures guaranteed by Art. I, § 11 of the Wisconsin Constitution. Dissenting in State v. Eason, 2001 WI 98, ¶ 111, 245 Wis. 2d 206, 629 N.W.2d 625, in which the majority agreed with the lower courts that the police lacked a reasonable suspicion to execute a “no-knock” search warrant, but nevertheless held that suppression of the evidence was not required as a consequence for this constitutional violation, Chief Justice Abrahamson eloquently stated that “[p]ersonal liberty is not a game. It is the hallmark of our country. Upholding the rule of law will not always produce a popular outcome, but it will preserve freedom. That is our duty as an independent judiciary.”
Shirley Abrahamson has also left behind a legacy as a champion for judicial independence. In many writings, she has explained how public perception of the judiciary as being principled and independent is vitally important to the judiciary’s institutional legitimacy. Writing in 2003, she explained the concept of “judicial independence” as follows:
Although the phrase is hard to define, the term "judicial independence" embodies the concept that a judge decides cases fairly, impartially, and according to the facts and law, not according to whim, prejudice, or fear, the dictates of the legislature or executive, or the latest opinion poll. At times, judicial independence means making unpopular decisions, whether unpopular with the legislative or executive branch, the public, or judicial colleagues.[6]
As she told those gathered in the Capitol Rotunda at her tribute ceremony on June 18, 2019, “[t]he need for an independent judiciary both in this state and in the country has never been greater.”[7]
Throughout her entire judicial career, through her actions and words, Shirley Abrahamson has also embodied the mantra “and justice for all.” As she has explained, “[i]t’s important that we apply the same rule of law to everybody, because that is only fair and you learn that as a child.”[8] As she stated in her concurring opinion in School Dist. of Shorewood v. Wausau Ins. Companies, 174 Wis. 2d 726, 732-33, 498 N.W.2d 823 (Wis. 1993), “[e]mpirical studies have demonstrated that trust and confidence in the legal system are directly related to litigants' perceptions of fairness and that litigants equate fairness with opportunities to present their stories to decision-makers who follow established neutral procedures.”
Shirley Abrahamson’s legacy also includes her substantial contributions to the body of common law decisions that adapted tort law to changes in society in order to allow those wrongly injured to have access to the courts, to have their claims decided fairly and impartially by juries or courts. While the important opinions she authored in this regard are too numerous to list in total, these opinions include Peot v. Ferraro, 83 Wis. 2d 727, 266 N.W.2d 586 (Wis. 1978). At issue in Peot was the (then) shady practice of some defense attorneys, knowing that the law imposes limits on recovery for loss of society and companionship damages in wrongful death cases, to invite the jury to award a greater amount for those damages, but a lesser amount for the pecuniary damages that are not subject to any legislative limit on recovery. Writing the opinion for a unanimous court, she stated that juries fulfill their function of deciding issues best when they have more, not less, information, and that juries should therefore be informed of the existence of the limitation on wrongful death damages.
We conclude that jurors faced with the difficult task of determining what specific sum (within the range of sums which can be considered reasonable and appropriate) should be awarded as compensation for these injuries can function best if they have the maximum amount of helpful information available. Thus the jurors should have the benefit of counsel's argument on damages and should be informed by the court of the statutory limits on damages. The jury should not be allowed to determine a verdict based on ignorance, speculation, or false assumptions, caused in part by final arguments which attempt to induce the jury to "load" the damages awards one way or other. Should the trial court, or the appellate court on review, determine that the jury's awards were inappropriate, remedy is available. We hold, therefore, that the trial court should, in a wrongful death action, inform the jury of the statutory limitations on recovery, if any.
83 Wis. 2d at 748.
Yet another landmark decision was Wangen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W.2d 437 (1980), in which the Wisconsin Supreme Court held that punitive damages are recoverable in product liability cases. Writing for the majority, Justice Abrahamson stated that “[i]n light of this court’s repeated reaffirmation of the concept of punitive damages as a civil deterrent to ‘outrageous’ behavior, and because apparently some businesses have found it in their interests to operate with reckless disregard to consumer safety, this court cannot, in good conscience, prohibit punitive damages in all product liability cases unless there is a strong showing that such prohibition is in the public interest.” Id. at 283-84. Rejecting Ford Motor Company’s argument that punitive damages are “wholly unnecessary” in product liability cases, she wrote that “the need for punitive damages may be particularly appropriate in a product liability case because mere compensatory damages might be insufficient to deter the defendant from further wrongdoing. Some may think it cheaper to pay damages or a forfeiture than to change a business practice.” Id. at 285-86. She also recognized the important role that punitive damages play in encouraging product manufacturers to design safer products, and rejected Ford’s calls to take safety out of the hands of individual state court juries and leave safety entirely up to the federal government.
Another watershed common law decision authored by Shirley Abrahamson was Bowen v. Lumbermens Mut. Cas. Co, 183 Wis. 2d 627, 517 N.W.2d 432 (1994), in which the court recognized the right of a family member to sue for negligent infliction of emotional distress based on witnessing the severe or fatal injuries to another family member. Recognizing that prior precedent imposed unfair and arbitrary limits on otherwise meritorious claims, this decision recognized the right of “bystander” emotional distress claims to proceed, subject to certain requirements are met.
During a time when some feel that it is acceptable to attack and denigrate judges who do not rule the way they like, and to not treat the judiciary with the respect that it deserves as a coequal branch of government, Justice Shirley Abrahamson’s example and career serves as a paragon of what a fair and impartial judge is and should be. For her outstanding service to the practice of law, for her tireless commitment to striving to make our legal system equal and accessible to all people, for her substantial contributions to the body of common law decisions affecting the rights of Wisconsin citizens to obtain access to the courts, and for being such a staunch proponent of a fair, impartial and non-partisan judiciary, “we may not look upon her like again.”[9]
[1] Briana Reilly, A Justice’s Legacy: With Shirley Abrahamson’s Retirement, Local Women in Law Reflect on Changing Landscape, The Cap Times (July 17, 2019), https://madison.com/ct/news/local/govt-and-politics/a-justice-s-legacy-with-shirley-abrahamson-s-retirement-local/article_a9de5ae8-8de3-5e91-873a-780c102fabba.html
[2] Joe Forward, Shirley Abrahamson: A Legacy of Judicial Service in Wisconsin, 92 Wis. Lawyer (May 2019), https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=92&Issue=5&ArticleID=27016
[3] Id.
[4] Chief Justice Abrahamson Becomes Longest-Serving Justice in Wisconsin History, https://www.wicourts.gov/news/view.jsp?id=463
[5] Indiana University 2013 Distinguished Alumni Service Award 2013: Hon. Shirley Schlanger Abrahamson — Paving the Way for Women in the Law, https://www.youtube.com/watch?v=nQIGolh3gq0&feature=emb_title
[6] C.J. Shirley S. Abrahamson, Thorny Issues and Slippery Slopes: Perspectives on Judicial Independence, 64 Ohio St. L. J. 3, 4 (2003).
[7] Katelyn Ferral, Shirley Abrahamson still believes in an independent judiciary and she wants you to, too, The Cap Times (June 19, 2019), https://madison.com/ct/news/local/govt-and-politics/shirley-abrahamson-still-believes-in-an-independent-judiciary-and-she/article_ff54552f-0d25-56df-9c63-14cf1ff7f66a.html
[8] Joe Forward, supra, n.1
[9] Adapted from William Shakespeare, Hamlet, Act 1, scene 2 (“he was a man, take him for all in all, I shall not look upon his like again.”