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.

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).