After receiving a suggestion to examine data on petitions for review in order to determine how petitioners fared in criminal cases, I sifted through data available for the 2014-15 term.[1]

Initial sorting revealed a set of 275 petitions for review in criminal cases that the justices either granted or denied during this period.  Given that nearly all the petitions were filed on behalf of defendants, it should surprise no one that most were denied.  In fact, “most” might be too mild a term, as only 5% (14/275) were granted.

Moreover, this percentage is heavily distorted by the fact that six of the petitions granted by the justices—nearly half of the total of 14 successful petitions—were filed by the State against defendants.  If we remove the State’s petitions from consideration, we are left with 265 petitions filed on behalf of defendants, only 3% (8/265) of which were granted.

In sum, then, the State succeeded with 60% (6/10) of its petitions—an outcome that is noteworthy not only for the comparatively high percentage of petitions granted, but also because it shows how rarely the State filed petitions at all in criminal cases.  No doubt this lack of activity was due primarily to the fact that the State wins the large majority of criminal cases in the lower courts, while the State’s high success rate with the petitions that it did file may reflect factors as disparate as the expertise of the Attorney General’s Office and the sympathies of the justices.  If other considerations might also have been involved, I would be grateful to learn of them.

Turning back to the 265 petitions filed on behalf of defendants, the success rates for various categories of filers varied considerably.  For instance, defendants who filed petitions themselves made no headway whatsoever, as all 34 of their petitions were rejected by the justices.  If 2014-15 is any guide, defendants without lawyers would appear to have essentially no chance of persuading the justices to hear their cases.  When lawyers were engaged to file petitions on behalf of defendants, the success rate climbed to 3.5% (8/231)—hardly stratospheric, but better than zero.

Moreover, within this total of 231 petitions, those filed by attorneys from the State Public Defender’s Office and the Frank J. Remington Center of the University of Wisconsin Law School were granted at a rate many times higher than that attained by the large remaining pool of defense lawyers.  More specifically, Public Defenders succeeded with 11% (5/46) of their petitions, while 17% (1/6) of the Remington Center’s petitions were granted.  These achievements account for all but two of the successful petitions filed by lawyers in criminal cases.  If the Public Defender’s and the Remington Center’s petitions are removed from consideration, we find that only 1% (2/179) of the petitions filed by all other lawyers were granted.

The question remains, of course, how do these findings compare with outcomes from earlier years?  Work now underway on a sampling of results from previous terms seeks to address this issue by uncovering similarities and/or differences with the fate of petitions in 2014-15.

[1] More specifically, this enterprise concerns petitions for review in criminal cases that the Supreme Court granted or denied between September 1, 2014, and August 31, 2015.  Diane Fremgen, Clerk of the Supreme Court and Court of Appeals, kindly provided data on petitions for review that, when combined with information from the court system’s website, yielded the figures presented in the following paragraphs.  We are considering all cases with numbers bearing the CR (but not the CRNM) suffix.  It is worth acknowledging the existence of cases that stem from some underlying criminal conduct but do not themselves focus on an alleged crime (and do not have numbers with a CR suffix).  These are omitted here because a preliminary scan suggests that they are comparatively few in number and difficult to find amid the several hundred petitions decided during the term.

The court has filed only three decisions over the past month, none of which altered the standings.

Whenever I have the means to do so, I am happy to explore issues recommended by others, which includes the subject of today’s post, suggested by a reader who prefers to remain anonymous.  The topic is medical-malpractice (med-mal) cases, a category that attracts headlines from time to time and can be isolated fairly easily from among the decisions on the court’s website.[1]

Most readers would likely predict that liberal justices side more frequently with med-mal plaintiffs than do conservative justices, as indeed they have.  According to the following table, the current court’s two most liberal justices (Abrahamson and Bradley) accepted plaintiffs’ arguments more often than not, while Justices Roggensack and Ziegler rejected them in all but approximately 15% of the cases they heard.

(Two side notes:  On any issue it is surprising to encounter such a gap between Justice Gableman’s voting record and those of Justices Roggensack and Ziegler.  It will be interesting to see if the disparity remains as Justice Gableman participates in more med-mal decisions, and the sample size expands.  The table also indicates, with a much larger sample of votes, that the late Justice Crooks sided frequently with Justices Abrahamson and Bradley in med-mal cases—more often than in any other category of case covered so far by SCOWstats.)

Percentage of Med-Mal Cases in which Individual Justices Favored the Arguments Presented by Plaintiffs, 1995-96 through 2014-15

Butler                 8/11=73%
Abrahamson   25/37=68%
Bradley             20/34=59%
Crooks              20/36=56%
Bablitch             8/16=50%
Gableman         2/6=33%
Prosser              9/32=28%
Sykes                  3/11=27%
Wilcox               7/28=25%
Roggensack      3/20=15%
Ziegler                1/7=14%

One might also expect that the conservative court of 2008-09 through 2014-15 (when the court’s composition remained unchanged, and all of the justices except for the late Justice Crooks are still on the bench) would rule more frequently against med-mal plaintiffs than did the court over the previous thirteen terms.  Such has not been the case, however, for the justices decided in favor of med-mal plaintiffs at an almost identical rate during the period 2008-09 through 2014-15 as they did on average from 1995-96 through 2007-08—essentially 50% of the time in both intervals.  Moreover, if we consider the terms prior to Justice Butler’s arrival on the bench in 2004-05, we find that the court ruled in favor of med-mal plaintiffs only 39% of the time—less often than did the more conservative court that took shape a few years later.  It requires the addition of the four “Butler terms” (2004-05 through 2007-08) to bring the favorable-ruling rate up to 48% for the entire period from 1995-96 through 2007-08.[2]

Over the past seven terms, the court’s most striking departure from its practice in the previous period pertains not to the percentage of favorable rulings but to the number of med-mal cases accepted for review.  From 1995-96 through 2007-08 the court heard close to three times as many med-mal cases per term as it did in the seven terms thereafter.  In fact, from 2008-09 through 2014-15, the court averaged less than a single med-mal decision per term (6 cases in seven terms, or 0.86 cases per term)—compared to an average of 2.38 med-mal cases per term in the earlier period.[3]

Any explanation for the decline must acknowledge the sharp drop in the number of med-mal lawsuits initiated across Wisconsin.  Whichever factors may be responsible for this development—award caps, the massive state-run malpractice fund, or more careful health-care professionals—it stands to reason that fewer cases entering the system would result in fewer petitions for review reaching the supreme court.[4]  And, indeed, fewer med-mal petitions for review have been filed of late—only 30 petitions over the entire seven terms from 2008-09 through 2014-15, an average of 4.3 petitions per term.  This is not even half the average of 9.8 petitions per term yielded by the 127 med-mal petitions filed from 1995-96 through 2007-08.

However, it is not just a matter of fewer petitions reaching the justices.  They have been rejecting the petitions that do reach them at a higher rate than previously.  This may be the most noteworthy aspect of the data.  Of the 30 med-mal petitions for review filed from 2008-09 through 2014-15, only 13% (4/30) were granted—scarcely more than half the acceptance rate of 24% (31/127) for the preceding period.[5]

Thus, two conclusions seem warranted for med-mal plaintiffs—good news and bad news, as it were.  They have retained nearly the same odds of winning their cases in the conservative supreme court of recent years as they did on average over the previous thirteen terms.  However, they have also found it a good deal more difficult to persuade the current justices to admit them to the courtroom in the first place.

 

[1] I searched the decisions for such phrases as “medical malpractice,” “informed consent,” and “Chapter 655” as well as numbers that would turn up references to specific statutes and codes: including 448.30, 655.015, 655.017, 655.27, 893.55, and 17.26.  I then weeded out cases in which med-mal issues were absent altogether or, at any rate, not the issues on which the decisions hinged.  Also excluded were a couple of cases in which the outcomes did not clearly favor the plaintiff or the defendant.

[2] Three of six decisions favored med-mal plaintiffs in 2008-09 through 2014-15, compared to 15 of 31 decisions during the 13 preceding terms—including eight of 13 decisions from the “Butler terms.”  It may be of interest that of the 18 decisions favoring med-mal plaintiffs, 14 were reversals.

[3] From 1995-96 through 2003-04, the court averaged 2 med-mal cases per term.  During the four “Butler terms” that followed, the average climbed to 3.25 cases per term—resulting in the average of 2.38 cases per term from 1995-96 through 2007-08 (31 cases over 13 terms).

[4] For details on the declining number of med-mal lawsuits filed in the state, see “Medical malpractice lawsuits plummet in Wisconsin” from the Milwaukee Journal Sentinel.  It is also worth noting that the overall volume of cases heard by the Wisconsin Supreme Court has declined over the past decade or so.  See Graph 2 in the SCOWstats post “Concurrences, Dissents, and Efficiency.”

[5] I am most grateful to Diane Fremgen, Clerk of the Supreme Court and Court of Appeals, for taking the time to furnish me with data pertaining to petitions for review.  Needless to say, I could not have completed this portion of the post without her assistance.  The data cover petitions for review in all cases with codes 30103 (“Medical Malpractice—Other”) and 30104 (“Medical Malpractice—Ch. 655”).  On occasion, a petition was filed in one term and decided in the following term, but adjustment for this fact does not alter the percentages presented above.

Standings have been updated through January 7.

If you are interested in having a look at the new law-firm fantasy league, click on the tab above.

Wisconsin’s Public Records Law, written to secure for citizens and the media access to records pertaining to the functioning of state and local government, has commanded frequent headlines of late—especially in the wake of periodic efforts by legislators and the Walker administration to reduce public access to such materials.[1]  No doubt this attention, along with public-records requests made of Supreme Court justices themselves, helps account for the suggestion that I received to explore the voting patterns of the court’s members in cases involving attempts to obtain information by invoking the Public Records Law.

To assemble a set of cases for the period 1995-96 through 2014-15, I began by searching for all decisions containing the term “19.3”—thereby turning up references to the Public Records Law: Wis. Stat. §§ 19.31-19.39.  I then weeded out irrelevant decisions, such as those that mentioned the law in a peripheral manner, without discussing how or whether the statute applied to the issues before the court.  Omitted, too, were a very small number of other cases: (1) a per curiam decision; (2) cases that included public-records issues but were decided on non-public-records grounds; and (3) cases that yielded decisions neither entirely in favor nor entirely opposed to the arguments of the parties requesting records.  I also excluded Journal Times v. City of Racine (2013AP1715) because the issue did not pertain to furnishing documents but rather the payment of attorney fees in the unusual circumstances of the case.

This yielded a set of 14 cases in which 71% of the decisions (10 of 14) favored access to records.  Before scrutinizing the decisions, one might hypothesize that liberal justices would be the most inclined to favor open access to records, while conservatives would be least sympathetic to such requests.  Justice Abrahamson did nothing to discourage such speculation in the introduction to her majority opinion in Karen Schill v. Wisconsin Rapids School District.  Observing that the week of March 14, 2010, was “Sunshine Week,” and quoting with approval an editorial in the Wisconsin State Journal, she emphasized that Wisconsin’s open government laws “‘are first and foremost a powerful tool for everyday people to keep track of what their government is up to. … The right of the people to monitor the people’s business is one of the core principles of democracy.’”

If a liberal court were more disposed to favor public-records requests, we would expect to see a lower percentage of such decisions over the past 7 terms, when the court’s rulings turned more conservative.  However, such has not been the case, for during this period 75% of the court’s decisions (3 of 4) favored access.  To be sure, the small sample size demands caution in forming conclusions, so let’s consider a larger subset of 8 cases and compare the votes of Justices Abrahamson and Roggensack—the most liberal and one of the most conservative justices who have both been on the court long enough to have cast votes in all 8 decisions.  If the simple liberal-conservative predictor were useful, one would expect Justice Abrahamson to approve access more frequently than did Justice Roggensack, but, as it turned out, each justice voted in favor 5 out of 8 times.

They did not vote to grant access in all of the same cases, though, disagreeing just as frequently as they agreed, as evident in the following tables.  (Click on the tables to enlarge them.)

Of course, the sample size remains small, and explanations for the different votes cast by the two justices must remain circumspect.  But it seems plausible—perhaps even self-evident, as it would for other categories of cases too—that the identity of the parties and the specifics of the dispute go much of the way toward predicting and explaining the decisions of individual justices.  Thus one might scrutinize the details of each case to see if there are subcategories of parties or issues that result in justices voting in ways that do not support the “liberal favors access; conservative opposes access” assumption and could help explain the information in the tables.  Hypotheses formed in this manner could then be tested against future public-records decisions issued by the court.

To suggest an example, consider public-records cases in which public-employee unions presented arguments asking the court to forbid the release of information about their members—information sought by other parties through Public Records Law requests.[2]  Here the “rule” of “liberal favors access; conservative opposes access” does not fit well at all, and, indeed, the opposite is a more accurate guide.  As noted, the unions opposed access to records about their members, and Justice Abrahamson sided with them in 2 of the 3 cases—while Justice Roggensack favored access to the records all 3 times.  Thus, in dissenting from Justice Abrahamson’s majority opinion in Schill that blocked the release of private emails sent by public-school teachers while on the job, Justice Roggensack lamented that “the court contravenes Wisconsin’s long history of transparency in and public access to actions of government employees. It is contrary to the letter and the spirit of the Public Records Law and is a disservice to the public’s interest in government oversight.”  Were the author of these words unknown, one might readily attribute them to Justice Abrahamson, arguably the court’s most vocal champion of open government.

Viewing this another way, if we remove these three “union” decisions from consideration, Justice Abrahamson favored access to records in 80% of the remaining public-records cases, while Justice Roggensack’s percentage would fall to 40%.  No doubt there are other subcategories of cases that, if identified, would help explain the justices’ public-records votes, and I would be grateful for suggestions that readers can offer.

That said, if current politics gives rise before long to public-records cases that reach the court, one might expect liberal and conservative labels to coincide more precisely with the votes of individual justices.  Put bluntly, it would be headline news if conservative and liberal justices did not vote predictably in cases challenging the efforts of Republican legislators and the Walker administration to curtail the scope of the Public Records Law.

Meanwhile, though, there may be another factor that affects, if only subconsciously, the justices’ public-records decisions in ways not always in line with customary ideological stances.  For instance, it seems probable that no other category of case requires the justices to rule on demands that are more likely to be applied in turn to the justices themselves.  They may not worry that their own homes and cars will be searched with greater abandon by police officers following the court’s Fourth-Amendment rulings, in other words, but it is difficult to imagine that the justices share a similar serenity about the personal consequences of their public-records decisions.  If such speculation appeared farfetched years ago, it is more credible in the current political climate and in light of recent articles reporting that three of the court’s members—Justices Abrahamson, Rebecca Bradley, and Gableman—are indeed the subjects of public-records requests made by political opponents.[3]  It would be a rare set of human beings who could remain completely unaffected by an awareness that their rulings in similar cases might provide them with a sturdier defense, or leave them more vulnerable, when facing public-records requests from their own ideological adversaries.

 

[1] See for example: “Lawmakers slash public records access in budget bill”; “Quiet change in public records policy could shield messages”; “State board may have overstepped authority on open records”; “State officials backtrack on open records changes”; and “Scott Walker insists his office follows open records law” (all in the Milwaukee Journal Sentinel) and “Plan to curtail public records laws sparks uproar” (from the Post-Crescent of Appleton, WI, reprinted in USA Today).

[2] Karen Schill v. Wisconsin Rapids School District; Milwaukee Journal Sentinel v. DOA (consolidated with Lakeland Times v. DNR); and Robert Zellner v. Cedarburg School District.

[3] “Three justices slow to provide documents under open records law”; “Justice Rebecca Bradley’s meetings calendars empty for 2 1/2 years” (Milwaukee Journal Sentinel).

Given the wide array of rights guaranteed by the Sixth Amendment,[1] it should occasion no surprise that defendants regularly invoke them in cases reaching the Wisconsin Supreme Court.  So far this term, the justices have two such cases pending—State v. LeMere (ineffective assistance of counsel) and State v. Lagrone (right to testify)—and they may grant additional Sixth-Amendment petitions in the months to come.

What chance do defendants have with their Sixth-Amendment arguments?  While factors such as the unique details of cases and periodic changes in the court’s composition limit the precision of predictions, a look at the court’s reaction to Sixth-Amendment arguments in recent years may help clarify the odds of success for the Sixth-Amendment appeals in LeMere and Lagrone.

We’ll begin with the most recent seven terms (2008-09 through 2014-15), a period in which the court’s composition remained unchanged, and all of the justices except for the late Justice Crooks are still on the bench.  For this period, I’ve identified 34 cases with Sixth-Amendment issues, and in only 12% of these (4/34) did a majority of justices accept the Sixth-Amendment arguments presented to them.[2]  This percentage is considerably lower than that for the preceding 13 terms (1995-96 through 2007-08), when a majority accepted Sixth-Amendment claims nearly twice as frequently—in 29% of such cases (15/51).[3]

Sixth-Amendment data also invite comparison with a recent SCOWstats post on Fourth-Amendment cases.  For one thing, although Sixth-Amendment arguments have been far from a safe bet, especially in recent years, the odds of success are not as bleak as those for Fourth-Amendment defenses, which experienced a 7% success rate for 2008-09 through 2013-14,[4] and 12% for 1995-96 through 2007-08.

Comparing the voting records of individual justices in Fourth-Amendment and Sixth-Amendment cases (Tables 1 and 2), we encounter some predictable results, but also some surprises.  Surely no court watcher would be taken aback to discover in Table 2 that Justices Abrahamson and Bradley accepted Sixth-Amendment defenses over half of the time, while Justices Roggensack, Ziegler, and Gableman extended a much chillier reception to the same claims.  The gulf between the two sets of justices is not quite as vast as the chasm evident in Table 1 for Fourth-Amendment cases, but it is still difficult to stand on one side of the Sixth-Amendment divide and see the other.

Following a recent post titled “Justice Crooks, A Swing Vote?,” there may be fewer raised eyebrows upon noticing that Justice Prosser accepted Sixth-Amendment as well as Fourth-Amendment defenses more frequently than did Justice Crooks.  The difference was greater for Fourth-Amendment arguments, but the fact that in both categories of criminal cases Justice Prosser posted the higher percentage is interesting in view of the fact that Justice Crooks was often labeled the court’s “moderate” among the rest of the current justices.

Table 1.  Percentage of Fourth-Amendment Cases in which Individual Justices Favored the Fourth-Amendment Arguments Presented to them[5]

Abrahamson   72% (58/81)
Butler                67% (8/12)
A. Bradley        63% (50/80)
Bablitch            33% (12/36)
Geske                20% (2/10)
Prosser             18% (12/68)
Sykes                  8% (2/25)
Steinmetz          8% (1/13)
Crooks                7% (5/76)
Ziegler                6% (2/35)
Wilcox                4% (2/46)
Gableman          3% (1/30)
Roggensack       2% (1/44)

Table 2.  Percentage of Sixth-Amendment Cases in which Individual Justices Favored the Sixth-Amendment Arguments Presented to them

Geske                67% (6/9)
Abrahamson   61% (45/74)
A.Bradley         53% (40/76)
Bablitch            50% (14/28)
Butler                44% (7/16)
Sykes                 41% (7/17)
Steinmetz        36% (5/14)
Prosser             24% (17/72)
Crooks              21% (17/81)
Wilcox              21% (10/47)
Roggensack      11% (6/55)
Ziegler                5% (2/38)
Gableman          3% (1/32)

As for surprises, perhaps the largest comes upon spotting Justice Geske atop the Sixth-Amendment table, which indicates that she accepted 67% of these defenses, in contrast to only 20% of the Fourth-Amendment arguments that she heard.  Indeed, every one of the justices who might be regarded by today’s measure as a “moderate” or a “moderate conservative” accepted Sixth-Amendment claims more readily than Fourth-Amendment claims—and the difference was often dramatic.  In addition to Justice Geske, the most striking examples are Justice Sykes (41% Sixth Amendment, 8% Fourth Amendment); Justice Steinmetz (36% and 8%); Justice Wilcox (21% and 4%); and Justice Crooks (21% and 7%).

Meanwhile, moving in the opposite direction (though still near the top of the table), the three most liberal justices (Abrahamson, Bradley, and Butler) proved to be less receptive to Sixth-Amendment defenses than to those invoking the Fourth Amendment.  Put another way, the enormous gap between Justices Butler and Sykes in Fourth Amendment cases all but disappears in the Sixth-Amendment table.  Only for the most conservative justices, whose percentages do not range far above zero in either table, is there little change.

One current member of the court is missing.  Justice Rebecca Bradley, recently appointed to replace Justice Crooks, has yet to record a vote in any case this term, leaving it uncertain where she will reside along the voting spectrums outlined in this and other SCOWstats posts.  For now, the most that one can say regarding Sixth-Amendment cases is that she participated in two during her several months of service as an appellate court judge.[6]  In both instances—one, a per curiam decision, and the other an unpublished decision written by Judge Kitty Brennan—the court rejected the defendants’ Sixth-Amendment arguments.  Thus, as James Lagrone awaits a decision on his right-to-testify claim, he is doubtless wondering whether Justice Bradley will participate in his case, and, if so, whether her record as an appellate court judge represents a sample of sufficient size to accurately predict her vote following her move to Madison.[7]

 

[1] The Sixth Amendment (and Article 1, Section 7 of Wisconsin’s constitution) guarantee criminal defendants: (1) the right to a public trial without unnecessary delay; (2) the right to a trial by an impartial jury; (3) the right to know the nature of the charges; (4) the right to know one’s accuser and confront adverse witnesses; (5) the right to testify and to present witnesses in one’s favor; and (6) the right to a lawyer.

[2] To locate cases, I searched decisions for the words “Sixth Amendment.”  I then checked each decision in the search results to make sure that a Sixth-Amendment argument was actually advanced (as opposed to, say, a parenthetical mention of the amendment that did not pertain directly to the argument at hand).  When a case included multiple issues, I focused only on those involving the Sixth Amendment.

In rare instances, a majority opinion presented a ruling on a Sixth-Amendment argument together with other arguments, while a dissenting opinion addressed only the non-Sixth-Amendment arguments.  Here, I counted the justices in the majority as voting on the Sixth-Amendment argument but did not record the votes of the dissenting justices (rather than attempt to interpret their silence on the Sixth-Amendment issue).  In similar fashion, a small number of concurring opinions sided with the majority without addressing the Sixth-Amendment issue before the court.  When this occurred, I did not include the concurring opinion in the calculations.

If a decision concluded that the Wisconsin Constitution affords greater protection than does the Sixth Amendment to the US Constitution, I included the case.

Occasionally the court agreed that a petitioner’s Sixth-Amendment rights had been violated, but decided that the error was “harmless”—thereby declining to overturn the petitioner’s conviction.  Such outcomes are categorized here as “unfavorable” toward the Sixth-Amendment argument presented by the petitioner.

I generally excluded a small number of cases that fell into certain gray areas such as the three examples that follow.  (1) On rare occasions a decision stated that if certain “facts” were indeed true, the defendant might be able to prevail on a Sixth-Amendment claim.  However, being uncertain on this score, the court remanded the case for a more thorough assessment of the “facts” in question.  (2) In a few cases, a defendant argued ineffective assistance of counsel (a Sixth-Amendment issue), but the dispute before the court involved only the proper time or forum for such a determination, with no assessment of the validity of the argument itself.  (3) Just as infrequently, both parties briefed a Sixth-Amendment issue, but the majority opinion decided the case on other grounds.

Opinions may differ reasonably on how to handle one gray area or another, and there will always be a few cases whose specific features frustrate easy categorization, regardless of the gray-area procedure adopted.  However, the number of borderline cases is small enough that any judicious gray-area approach will have little or no effect on the percentages presented above.

All of the decisions may be found on the court system’s website.

[3] By far the most common Sixth-Amendment claim at the Supreme Court has involved the defendant’s right to a lawyer, often phrased as a contention that counsel was ineffective.  Justices sided with these arguments in 16% of such cases (3/19) in 2008-09 through 2014-15 and at nearly double that rate—31% (8/26)—in 1995-96 through 2007-08.

[4] The Fourth-Amendment post appeared in June, 2015, and therefore the Fourth-Amendment data presented here and in Table 1 do not cover the 2014-15 term.

[5] Justice Roland Day is not included in Tables 1 and 2 because the data cover only his last term on the bench (1995-96).

[6] State v. Mckee (2014AP2176-CR) and State v. Brown (2015AP522-CR)

[7] In State v. LeMere, briefing and oral argument took place before Rebecca Bradley joined the Supreme Court, and thus it seems unlikely that her voice will be heard in the decision.

In September, when the Supreme Court issued an order granting review in State v. Salinas (2013AP2686), readers who turned to the second page were likely surprised by an unusual comment added by Justice Abrahamson, who expressed apprehension over the state of affairs on two fronts: (1) the number of cases on the court’s calendar for the 2015-16 term; and (2) the percentage of these cases that presented unpublished decisions from the court of appeals.

Justice Abrahamson’s unease invites scrutiny of various sorts—one being the question of whether these developments represent departures from the court’s practice in previous terms.  Here is ground on which SCOWstats may be of service, for we can compare figures for 2015-16 with data from the previous twenty terms and determine to what extent, if any, 2015-16 marks a departure from the norm established over the last two decades.

The Supreme Court customarily holds a petitions conference once a month, as it did on October 7, where the justices decide which cases to accept for review.  Given that the next conference does not appear on their calendar until the following month, October will be our cut-off point for each of the twenty terms to be compared to 2015-16.  In other words, I will examine the cases decided in each of the previous terms and isolate just those that had been accepted for review by the end of October of the term in question.[1]  These cases can then be compared to the cases on the Supreme Court’s docket so far in 2015-16, allowing us to determine whether the current term is unusual regarding the points raised by Justice Abrahamson.

First, let’s take the matter of the number of cases in the pipeline, which prompted Justice Abrahamson to worry that “[o]ur November oral argument calendar has only one case scheduled.  The possibility exists that no cases will be ready for the December oral argument calendar.”  As shown in Table 1 the court now has 30 cases pending, at various stages on the road to a decision.[2]  This is indeed fewer than the number for any of the preceding twenty terms in the table—and well below the twenty-term average of 58 cases that had been accepted for review no later than the end of October.  For the period 2008-09 through 2014-15 (during which the same seven justices served on the court), the average was 42 cases, and it was 66 cases over the thirteen terms before that (1995-96 through 2007-08).  The 2012-13 term, when only 31 cases were pending by the end of October, is the closest match in this regard to 2015-16.  As it turned out, when the 2012-13 term came to an end, the justices had decided only 46 cases, the lowest total in the twenty-year period.[3]  Next summer, it will be interesting to see how the final total for 2015-16 compares.

 

Justice Abrahamson also voiced misgivings over the acceptance for review of unpublished court of appeals decisions.  She felt that they represented far too large a share of the cases on the court’s calendar, and she seemed especially troubled by what she regarded as an excessively high number of per curiam decisions from the court of appeals.  One can infer that she deems at least some of these cases as undeserving of review, for she made a point of quoting from the “Wisconsin Court of Appeals Internal Operating Procedures” to observe that per curiam decisions “do not involve ‘new or unsettled questions of general importance.’”

So, how does 2015-16 compare with previous terms regarding per curiam decisions from the court of appeals?  Table 2 indicates that, through the end of October, per curiam decisions represented a larger share (27%) of the cases on the court’s calendar in 2015-16 than for any individual term in the preceding twenty years.  Viewing these twenty years as a whole, we find that per curiam decisions accounted on average for only 9% of the cases on the court’s docket by the end of October.  For the earliest thirteen years under consideration (1995-96 through 2007-08), the average was slightly lower—7.7% of cases had been per curiam decisions at the court of appeals—before climbing to 12.5% during the period 2008-09 through 2014-15.[4]

 

(Click here for a table that contains several additional columns, including one showing the percentage of cases accounted for by published decisions from the court of appeals—only 33% of all cases accepted for review in 2015-16, compared to an average of 51% of cases accepted for review during the preceding twenty terms.)

To be sure, questions remain that elude statistical resolution.   For instance, opinions will vary over the extent to which one should be disturbed by the unusually small number of petitions granted and the substantial percentage of court of appeals per curiam decisions on the Supreme Court’s docket.  One might also wonder why these differences with past averages are occurring in 2015-16.  At the end of her comment on the order granting review in Salinas (itself a per curiam decision from the court of appeals), Justice Abrahamson suggested indirectly, by means of a quotation from Michael Heffernan’s Appellate Practice and Procedure in Wisconsin, that the Supreme Court, after rejecting too many worthy cases in previous months, might now be scrambling to bulk up its undernourished calendar with cases that do not always warrant such attention.  Whatever the merits of this explanation, however, it leaves open the question of why so few petitions for review were granted in the months prior to September.  This, after all, is what led to the shortage that now worries Justice Abrahamson.

Perhaps the meager harvest derives from recent turmoil on the court, though there may well be other plausible explanations.  I would be grateful to benefit from knowledgeable readers who can speculate on reasons for the small number of cases, the large share of per curiam decisions—and how much cause for concern exists on either of these counts.

[1] This information is available on the court system’s website.

[2] This includes cases awaiting decision, awaiting oral argument, or still in the briefing stage.  There is a slight chance that no decision will be issued for one or another of these cases during the 2015-16 term, but this possibility is sufficiently remote (especially for multiple cases) that it does not imperil the general findings that follow.

[3] Data for 2012-13 is available on SCOWstats.

[4] The averages are weighted in order to account for the varying number of cases on the court’s calendar from one year to the next.

“Supreme Court Justice Patrick Crooks retiring, taking swing vote with him.”  So announced the headline of a post on Madison.com today, reporting on Justice Crooks’s statement that he would not seek re-election.  The headline’s wording doubtless occasioned little surprise, as Justice Crooks, more than any other member of the court, has long been accompanied by such labels as “swing vote,” “centrist,” and “moderate conservative”—suggesting that his voting record places him between a liberal minority (Justices Abrahamson and Bradley) and a conservative majority of Justices Prosser, Roggensack, Ziegler, and Gableman.[1]

There is indeed evidence to support labeling Justice Crooks—rather than Justice Prosser, say—as the court’s “moderate,” “centrist,” or “swing vote.”  He, and not Justice Prosser, has sided with Justices Abrahamson and Bradley in some politically-charged cases—notably his dissent in Milwaukee Branch of NAACP v. Walker (in which he argued that Wisconsin’s voter ID law is unconstitutional) and his dissent in the recent John Doe case.

In addition to his opinions in these rare high-profile cases, Justice Crooks’s overall voting record finds him joining the liberals somewhat more frequently than does Justice Prosser.  Table 1 (covering the seven terms in which the current seven justices have served together) indicates how often both Justice Abrahamson and Justice Bradley voted with Justice Crooks, and how often these two liberals voted with Justice Prosser.  Computing the totals for all seven terms, we find Justice Crooks on the same side as the two liberals in 62% of the votes in which all three participated (243/390), surpassing the figure of 53% for Justice Prosser (195/366).[2]

However, one can also make a case that it is misleading to distinguish so sharply between Justice Crooks as the court’s apparent “moderate” or “swing vote” and Justice Prosser as a member of the court’s conservative bloc.  To be sure, there is a conservative bloc (as indicated in Table 2, which shows that Justices Roggensack, Ziegler, and Gableman have voted together in fully 90 percent of the court’s cases over the past seven terms.  Moreover, after adding up the figures for the seven terms, one finds that Justice Prosser voted with this conservative trio 80% of the time (285/357).  The problem for someone trying to distinguish Justice Crooks from Justice Prosser on this score is that Justice Crooks voted with the same trio every bit as often—82% of the time (310/380).[3]  Thus, for all types of cases taken together, Justice Crooks joined the court’s three most conservative members just as frequently as did Justice Prosser.

As noted above regarding the general set of all cases, Justice Crooks has sided more often with the liberals than has Justice Prosser.  And, as detailed in previous SCOWstats posts, he has joined the liberals more often than has Justice Prosser in certain subsets of cases (involving insurance companies, for example).  But SCOWstats has also examined other categories of cases (most recently, Fourth Amendment arguments) in which Justice Prosser voted with the liberals more often than did Justice Crooks.

Further complicating the discussion is the label “swing vote”—frequently applied to Justice Crooks and rarely to Justice Prosser.[4]  The term might suit Justice Crooks if one understands the phrase to mean simply that he spreads his votes somewhat more broadly and frequently along the ideological spectrum than does Justice Prosser.  I suspect, though, that for most people the term “swing vote” suggests a justice who casts a vote that tips the balance one way or the other in close decisions.  And by this measure, Justice Crooks seems less obviously the best candidate for the label.

Consider Table 3.  It shows how often over the past seven terms each of the two justices voted in the majority in 4-3 decisions when the other justice did not.  Note that Justice Prosser appeared in this role 24 times, surpassing Justice Crooks’s total of 19, indicating that Justice Prosser’s vote was more often crucial in 4-3 decisions than was Justice Crooks’s.

If participation in 4-3 majorities is a reasonable way to determine whether the term “swing vote” better suits Justice Crooks or Justice Prosser, perhaps the most that can be said in favor of Justice Crooks meriting the “title” is that his majority votes were more evenly divided between the liberal and conservative blocs, as shown in Tables 4a and 4b.[5]

Thus, with some exertion and selective emphasis, a case can be made for Justice Crooks as a “swing vote” of sorts, but the distinction often drawn between Justice Crooks and Justice Prosser on this point seems less persuasive than the familiar label suggests.

 

[1] For a sampling of references to Justice Crooks as a “centrist” between the conservatives and liberals on the court, see Milwaukee Magazine, WisconsinWatch.org, and the Milwaukee Journal Sentinel.

[2] To be clear, the figures in the table indicate only how often all three justices in the trio voted together.  They were usually joined by other justices as well.  Occasionally, one justice in the trio did not participate in a case.  In these infrequent instances, if the remaining two justices voted the same way, that case is not included in the calculations.  If the remaining two justices disagreed, the case is counted as one in which the trio did not side with each other.  Per curiam cases are included.

[3] The figures in Table 2 were calculated according to rules similar to those outlined in the reference note for Table 1.

[4] For references to Justice Crooks as a “swing vote,” see (in addition to the Madison.com article cited above) the Milwaukee Journal Sentinel, Justice Crooks’s own Wikipedia article, Wisconsin Public Radio, and FOX11 News.

[5] Justice Prosser’s total of 23 majority votes without Justice Crooks (adding the totals in Tables 4a and 4b) is one short of his total in Table 3 because in one case (Bethke, 2012-13) the majority consisted of Justices Bradley, Prosser, Roggensack, and Ziegler—that is, only one of the liberals and only two of the conservatives.  Thus Bethke does not figure in Tables 4a or 4b.

These tables are derived from information contained in 70 Wisconsin Supreme Court decisions filed between September 1, 1993, and August 31, 1994.  The total of 70 decisions does not include rulings arising from such undertakings as (1) disciplinary proceedings against lawyers and (2) various motions and petitions.  Nor does it include Hoskins v. United States Fire Insurance Company, in which a per curiam decision dismissed review as improvidently granted.

Occasionally, the Court’s records contain separate entries for individual cases that were ultimately consolidated and resolved by a single decision.  If two or more cases were combined in this manner, the decision is counted only once for the purposes of the following tables.

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