Justice Rebecca Bradley's first decision on a case since joining the Wisconsin Supreme Court in October has created a little buzz -- and she didn't even write an opinion.
Bradley's tie-breaking vote in a 4-3 ruling that broadly interpreted a doctrine that lets police use evidence seized without a warrant has come under fire from the defendant who would otherwise have won the case.
Charles Matalonis contends Bradley's vote violated his rights to due process and equal protection, and left the appearance that Bradley was biased toward law enforcement groups who are backing her current campaign for election to the job.
Earlier, the state Court of Appeals had agreed to suppress evidence - a marijuana plant - that Kenosha police found after entering Matalonis' locked bedroom without a search warrant. A 3-3 tie on the high court would have affirmed that ruling.
Bradley wasn't on the court when it heard oral argument in the case, and she had abstained from several other decisions the court issued on cases heard before her appointment Oct. 9, to replace Justice Patrick Crooks, who died Sept. 21.
But she formed a majority to reverse the prior ruling on Matalonis, on the grounds that police were not investigating a crime when they discovered the plant, but were exercising a "community caretaker" function, making sure no injured person was inside the room. They had followed a blood trail to Matalonis' house after his brother, who had clearly been beaten, arrived at a neighbor's house.
Matalonis was the first case of about 16 pending cases, argued before she joined the court, in which Bradley joined the opinion. Five opinions have been issued in which she did not participate.
In a motion for reconsideration, Matalonis' attorneys argue that by participating in the decision, Bradley violated Matalonis' rights to due process and equal protection. The court typically denies such motions.
Further, the motion argues, Bradley's vote gives the appearance of bias, since the decision favors law enforcement when several such organizations and individuals have backed Bradley's campaign to win election to the seat in April.
She was the top vote getter in Tuesday's primary, just ahead of appellate Judge JoAnne Kloppenburger, and Milwaukee Circuit Judge Joseph Donald, who finished far behind did not qualify for the general election.
The defense team of Mark Richard and Brian Dimmer also filed a public records request for correspondence between and among the justices and their clerks regarding Matalonis' case, which may offer insight as to "why Justice Bradley singled out Matalonis to join and break an otherwise 3-3 tie," according to the motion.
The motion follows a position taken by Justice Shirley Abrahamson, who dissented in the case, that the existing justices should vote whether to rehear a case with a new member, or just decide it without her.
Having a new member join in deciding a case without having participated in the oral argument has no precedent with the court or the U.S. Supreme Court, the defense argues.
Bradley did not write a separate opinion about why she decided the case, but said later in an interview that she reviewed the same briefs and a recording of the oral argument, and that it's her job to decide important cases. She said her extensive research found no court rules, statutes or case law prohibiting her from joining in the disposition of Matalonis' case.
She distinguished an earlier case that was also deadlocked 3-3, but which she did not case a vote.
In that circumstance, she said, the Court of Appeals had asked the high court to take the appeal directly. The tie vote by justices meant the case returned to the Court of Appeals, which will now hear and decide it, so Bradley did not see the same need to participate in the case. It could still return to the Supreme Court.