Following a recent post’s observation that an unusually large share of cases coming before the supreme court during the current term are per curiam decisions from the court of appeals, a reader wondered if a significantly higher percentage of all court of appeals opinions had been per curiam decisions in 2014-15—which might help explain why the supreme court’s calendar contains a larger proportion of per curiam decisions than in the past.  The concern stems from the nature of per curiam opinions, which are unsigned rulings reserved for cases of lesser significance—those not presenting “new or unsettled questions of general importance.”  Indeed, they may not even be cited as persuasive authority.[1]

We’ll begin by determining the percentage of all cases decided by the supreme court that had arrived as per curiam decisions from the court of appeals.  The results (displayed in Table 1 for the terms currently covered by SCOWstats) indicate that the percentage has been considerably higher in recent years than in the early years of the period—never exceeding 9% in the 1990s and never falling below 15% since 2010-11 (with the figure for 2015-16 predicted to rise as high as 26%). [Continue Reading…]

The decision in State v. Lagrone today brought five points (for a brief and oral argument) to the Gavels of the Office of the Public Defender, pulling them even with the Waivers and only three points back of the league-leading Citations.

As a result of its participation in Yasmine Clark v. American Cyanamid Company—a brief, no oral argument, and a 3-3 outcome—Quarles & Brady picked up four points and pulled its team (the Waivers) to within three points of the league-leading Citations.

These tables are derived from information contained in 87 Wisconsin Supreme Court decisions filed between September 1, 1992, and August 31, 1993.  The total of 87 decisions does not include rulings arising from such undertakings as (1) disciplinary proceedings against lawyers and judges; (2) bar admission issues; (3) an instance in which the court vacated its own mandate; and (4) various motions and petitions.

An additional case—a deadlocked (3-3) per curiam decision (Wisconsin Public Service Corporation v. Public Service Commission)—figures only in the “Number of Oral Arguments Presented” table. 

The tables are available as a complete set and by individual topic according to the subsets listed below.

Four-to-Three Decisions
Decisions Arranged by Vote Split
Frequency of Justices in the Majority
Distribution of Opinion Authorship
Frequency of Agreement Between Pairs of Justices
Average Time Between Oral Argument and Opinions Authored by Each Justice
Number of Oral Arguments Presented by Individual Firms and Agencies

 

Over the past two weeks, the court has released only one decision, and it did not involve any of the law firms in the league.  Hence, no change in the standings.

Last September, in an unusual comment appended to an order granting review in State v. Salinas, Justice Abrahamson voiced concern about the cases appearing on the court’s agenda for the 2015-16 term.  Although the term was just underway, she cautioned that (1) the justices would discover in the months to come that they had accepted an abnormally small number of cases, and (2) a disturbingly large share of this meager case load stemmed from per curiam decisions by the court of appeals.

Six months later, in mid-March, we have a more complete picture of the court’s workload, which permits an assessment of the two alarms sounded by Justice Abrahamson.  Turning first to the issue of the volume of cases, the current court has been processing them at a slower rate than in recent years (see Table 1)—an early indication that the total number of decisions for the term will indeed be low.[1]

(click on the tables to enlarge them)

To be sure, some previous terms have witnessed avalanches of decisions as late as June or July, which might suggest that caution is in order when estimating the court’s output with over four months remaining before summer’s end.  In 2012-13, for example, the court had filed only 22 decisions as late as the beginning of July—before adding 24 more to the total by the end of the month.  However, nothing remotely comparable could occur in 2016.  Although the court may well quicken its pace during the remainder of the term, there are so few cases left in the pipeline that even if the justices filed decisions in all of them (which is unlikely), the total could not exceed 50.

More specifically, in addition to the 13 decisions already filed this term, oral argument has been completed in 19 others.  Decisions will almost certainly be filed in these cases before the end of the term, bringing our total to 32 decisions.

In addition, oral argument has been scheduled for 12 more cases on various days between February 19 and April 7.  Assuming that the court will work at a faster pace in the months to come, or toil well into August, we may add all 12 cases to our previous total of 32.

At this point, having identified 44 cases that should yield decisions during the 2015-16 term, we find that the well is nearly dry.  Response briefs have been filed in Wisconsin Carry, Inc. v. City of Madison; Seifert v. Balink; and Democratic Party of Wisconsin v. Wisconsin Dept. of Justice, and one or more of these cases could join the total of 44 decisions.  Beyond that, though, I have found only three other cases on the calendar, and in all three only the first brief has been filed.[2]

It seems plausible, then, that the court will not reach 50 decisions this term—perhaps closing the books at around 46, its total for 2012-13 and its low point over the past 22 terms.  Thus, although the yield for 2015-16 will not plunge far below that of all previous terms, it will certainly be at the extreme (low) end of a broad range whose other terminus recalls a time, scarcely more than ten years ago, when the court filed roughly twice as many decisions as the total anticipated for 2015-16 (see Table 2).[3]

Meanwhile, there remains the matter of Justice Abrahamson’s anxiety over the share of cases reaching the supreme court in the form of per curiam decisions from the court of appeals.  In October, 2015, shortly after she raised the issue, a SCOWstats post examined the 28 cases then on the court’s calendar and found that 25% of them had been per curiam decisions—a considerably higher percentage than in any of the 20 previous terms.

The issue appeared of consequence to Justice Abrahamson because, she maintained, per curiam decisions “do not involve ‘new or unsettled questions of general importance’” and therefore are not likely to merit review.  She concluded by wondering if the justices had rejected too many worthy cases and then found themselves accepting undeserving cases in order to populate their depleted agenda.

Since that time, the number of cases on the court’s agenda has reached the point where we can calculate for the entire term the percentage that arrived as per curiam decisions from the court of appeals.  For those who share Justice Abrahamson’s unease, it will be troubling to learn that the share has not decreased at all—remaining at a quarter of all cases under review (26%, 13 of 50 cases).

 

[1] The table covers all of the terms in which the current justices (apart from Justice Rebecca Bradley) have served together.  It does not include rulings that review had been improvidently granted, but it does encompass per curiam decisions, one of which was filed during the present term (New Richmond News v. City of New Richmond).  Voluntary dismissals were granted in 2015-16 in Attic Angel v. City of Madison and Sorenson v. Building Service Industrial Sales, and neither is included in these calculations.

[2] The three cases are: State v. Maday; State v. Weber; and Brenner v. National Casualty Company.

[3] As in Table 1, these figures include per curiam decisions but omit occasional rulings that review had been improvidently granted.

Through its participation in State v. Tourville—a brief and oral argument—the Frank J. Remington Center of the UW Law School gained five points for its team (the Citations).  With no other teams ringing the bell this week, the Citations’ lead has grown to seven points over the Waivers, their closest challenger.

A recent post considered petitions for review in criminal cases filed during the 2014-15 term and concluded with the observation that a comparison of the results with findings from previous terms would provide some helpful perspective.  Toward that end, I began by working through data for three different sets of terms: (1) 2012-13 through 2014-15 (referred to hereafter as the “recent terms”); (2) 2004-05 through 2006-07 (hereafter the “Butler terms”); and (3) 1996-97 through 1998-99 (hereafter the “late 1990s”).[1]

The “recent terms” were selected as the best indicator of the behavior of the current court, all of whose members, except for the newly-appointed Justice Rebecca Bradley, served together with the late Justice Crooks throughout the period.

The “Butler terms” cover three of the four terms during which Justice Butler served on the court, thereby providing the court with three liberal members.  Given that the votes of at least three justices are required to grant a petition for review, it seemed reasonable to ask whether the presence of three liberals (Justices Abrahamson and Ann Walsh Bradley along with Justice Butler) would generate statistics at sharp variance from those for the “recent terms.”

The “late 1990s” were included to ascertain what difference, if any, would result from the absence of Justice Butler and also the court’s current conservative members (Justices Roggensack, Ziegler, and Gableman).[2]

The results of the study displayed in Table 1 suggest that the “recent terms” fit within the normal range of decisions made by justices voting on petitions for review filed during the previous two decades.[3]  During the “recent terms,” for instance, the justices granted petitions for review filed by the State at a rate that considerably exceeded the figure for the “Butler terms” (63% compared to 50%, respectively) but did not differ much from the figure for the “late 1990s” (59%).  Moreover, lawyers who filed petitions on behalf of defendants found them granted only slightly more often during the “Butler terms” than during the “recent terms” (5.8% compared to 5.5%)—and they were granted less frequently (4.3%) during the “late 1990s” than during the “recent terms.”  Defendants who filed petitions on their own, rather than through lawyers, found the court as inhospitable during the “Butler terms” as in either the preceding or subsequent periods.

(click on the tables to enlarge them)

All in all, were we to stop at this point, a reader might well be impressed more by the continuity rather than the change when comparing the “recent terms” with the preceding periods.  The question remains, though, what happened after a petition for review was granted?  Although a “grant” was indispensable to a filer’s cause, it by no means signaled that a successful outcome was likely thereafter—certainly not for all categories of filers.  And here, when we inquire about the outcomes obtained after petitions for review were granted, the “recent terms” depart significantly not only from the “Butler terms” but also from the “late 1990s.”

To be sure, this cannot be said of the State’s petitions for review.  When these were granted, the court proceeded to rule in the State’s favor the large majority of the time in every term—slightly more often, in fact, during the “Butler terms” than during the “recent terms”—as shown in Table 2.[4]

But when the court granted petitions filed by lawyers on behalf of defendants, it then ruled against the defendants far more often during the “recent terms” than during the earlier periods.  More specifically, only 9% of these successful petitions filed on behalf of defendants led to favorable outcomes for the defendants during the “recent terms,” compared to success rates of 31% and 29% during the two preceding periods.  Thus, in recent years, defendants have had much less reason for optimism than in the past, upon learning that their petitions for review were granted.[5]

[1] Once again, I am grateful to Diane Fremgen, Clerk of the Supreme Court and Court of Appeals, who furnished data on petitions for review. Cases under consideration are those bearing the CR suffix (the same category described in more detail in the footnote accompanying the initial post). In addition, I should note that when a party filed two petitions for review during the lifespan of a single case (an unusual occurrence), I counted both petitions—as I did when both parties petitioned for review in the same case. I did not count a petition on the rare occasion when the justices “took no action” on it.

[2] Composition of the Wisconsin Supreme Court:
2008-09 through 2014-15
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler, and Gableman)
2007-08
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler, and Butler)
2004-05 through 2006-07
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Butler, and Wilcox)
2003-04
(Justices Abrahamson, Bradley, Crooks, Prosser, Roggensack, Wilcox, and Sykes)
1999-00 through 2002-03
(Justices Abrahamson, Bradley, Crooks, Prosser, Wilcox, Sykes, and Bablitch)
1998-99
(Justices Abrahamson, Bradley, Crooks, Prosser, Wilcox, Bablitch, and Steinmetz)
1996-97 through 1997-98
(Justices Abrahamson, Bradley, Crooks, Wilcox, Bablitch, Steinmetz, and Geske)

[3] Click here for an expanded version of Table 1 that provides figures for each of the nine terms individually.

[4] Click here for an expanded version of Table 2 that provides figures for each of the nine terms individually.

[5] Occasionally it was impossible to categorize an outcome as favorable or unfavorable for a successful filer of a petition for review.  In these instances, I omitted the case from Table 2.  Figures for 2014-15 are incomplete in Table 2, because the court has yet to file decisions in a majority of the criminal cases (included in Table 1) for which the justices granted review.

Whyte Hirschboeck Dudek and von Briesen & Roper each gained five points for their participation in the cases decided on March 1—United Food & Commercial Workers Union v. Hormel Foods Corporation and Wisconsin Pharmacal Company, LLC v. Nebraska Cultures of California, Inc.  As a result, their team (the Waivers) has taken over second place from the Gavels of the Public Defender’s Office.  Meanwhile, Godfrey & Kahn picked up one point for an amicus brief in Wisconsin Pharmacal, helping their team (the Citations) cling to first place for another week—only two points ahead of the Waivers and three points clear of the Gavels.

After the filing of State v. Parisi yesterday, the Gavels of the State Public Defender’s Office have closed to within two points of the Citations.