A previous comment (“Reversals in Criminal Cases,” posted September 1, 2014) presented data on two categories of Supreme Court reversals of rulings from the court of appeals: reversals of rulings that had favored defendants, and reversals of rulings that had favored the state.[1]  The September 1 post noted, among other things, that the Court’s current members—all in place beginning with the 2008-09 term when Justice Gableman replaced Justice Butler—reversed 80% (20/25) of rulings that had favored defendants and 12% (8/68) of rulings that had favored the state during the five terms from 2008-09 through 2012-13.

With information now available for 2013-14, comparisons are possible with the preceding five terms, as well as with earlier terms when different arrays of justices occupied the bench.  In 2013-14 the Court accepted eleven cases in which the court of appeals had ruled in favor of the defendant—and reversed in nine of them, a reversal rate of 82%.  In contrast, when defendants petitioned for review, the Court ruled in favor of the state thirteen out of fourteen times, a reversal rate of 7%.

Voting by Individual Justices
As one would anticipate, based on the Court’s record in recent years, Justices Roggensack, Ziegler, and Gableman accepted the state’s arguments with near unanimity, while Justices Abrahamson and Bradley were most likely to respond critically.  Thus, when asked by a defendant to reverse a lower-court ruling that had favored the state, Justices Roggensack, Ziegler, and Gableman voted to do so 7%, 0%, and 0% of the time, respectively—in contrast to Justices Abrahamson (93%) and Bradley (71%).  When the state sought a reversal, Justices Roggensack, Ziegler, and Gableman obliged much more readily (91%, 100%, and 91%, respectively) than did Justices Abrahamson and Bradley (both 27%).  (Table 1 provides data for all seven justices over the 2013-14 term.)

The Current Court in Perspective
While the gap between the reversal rates was very large (82% favoring the state and 7% favoring defendants) in 2013-14, it did not greatly exceed the gap generated by the Court’s current members over the preceding five terms (80% and 12%).  However, there remains the question of whether this performance differs significantly from that of the Court in previous years, when other combinations of justices were casting votes.  For instance, the four terms from 2004-05 through 2007-08, when Justice Butler served on the Court, are commonly regarded as a “liberal” interval in the Court’s history, and data now available on SCOWstats allow us to compare these “Butler years,” and also the six terms prior to Justice Butler’s arrival (1998-99 through 2003-04), with the record established by the Court’s present membership.  (See Table 2.)

A number of points are striking here.  First, while the “Butler years” may have been “liberal” in some respects (see, for example, the post titled “2013-14 in Perspective: Part 2”), the Court during these four terms reversed decisions that had favored defendants at almost exactly the same (very high) rate as have the Court’s current members—and at a marginally higher rate (79% compared to 76%) than in the six terms prior to Justice Butler’s tenure on the Court.

The most dramatic difference between the Court’s current lineup and those on the bench for varying stretches before 2008-09 is to be found in the reversal rates of lower-court decisions that had favored the state.  During the “Butler years” the Court reversed in 33% of such cases, and during the six terms before Justice Butler joined the Court the justices did so in 29% of their decisions.  In contrast, the 2013-14 Court reversed in only 7% of these cases—and only 11% of the time for the entire period from 2008-09 through 2013-14.  It will be interesting to see, as this study is expanded further back into the Court’s history, at what point we encounter another extended period during which the state, appearing as the respondent in criminal cases, received such a sympathetic hearing from the justices.

[1] See the footnotes for the September 1, 2014, post for more information on the types of cases considered here.

Shifting 4-3 Majorities

The one-vote margins in 4-3 decisions make them a sensitive indicator of change in the influence of individual justices and in the dominance of certain blocs of justices over the years.  This post offers some findings on how frequently justices voted in the majority in these decisions in 2013-14 compared to the previous five terms (during which the Court’s current members have served together)—and also compared to the ten terms before that.

For most justices, their shares of majority votes in 4-3 decisions occasioned little surprise in 2013-14 compared to patterns evident from the preceding five terms.  Justice Abrahamson, for instance, voted in the majority 31% of the time in 4-3 decisions during the 2013-14 term, which is not far removed from her 33% portion of majority votes in these decisions during the five terms from 2008-09 through 2012-13.  In similar fashion, the 2013-14 percentages hover very close to the percentages for the preceding five terms for all of the other justices—except for Justices Crooks and Prosser, where the change was dramatic.  More specifically, Justice Crooks voted with the majority 81% of the time in 4-3 decisions during the 2013-14 term, but only 39% of the time during the preceding five terms.  For Justice Prosser the change was striking in the other direction—38% in 2013-14 compared to 75% during the five preceding terms.  Perhaps figures for 2014-15 will suggest whether this reversal in 2013-14 amounted to simply an incidental blip, evident occasionally in any justice’s voting record, or an initial indication of a more sustained alteration in voting patterns. 

Overall, despite the anomaly of voting by Justices Crooks and Prosser in 2013-14, the information in the accompanying table suggests continuity on this issue over the six terms during which the Court has maintained its present composition.  However, the table also underscores the conspicuous change that occurred once Justice Gableman replaced Justice Butler, thereby giving the Court the membership that it has maintained ever since.  During the “Butler years” (2004-05 through 2007-08), each of the six justices who are still on the Court today voted in the majority as follows in 4-3 decisions:

Abrahamson—37/63=59%
Bradley—39/63=62%
Crooks—55/63=87%
Prosser—27/63=43%
Roggensack—27/63=43%
Ziegler (only one term)—7/14=50%

At no point thereafter would the figures for Justices Abrahamson and Bradley approach their percentages (59% and 62% respectively) for the “Butler years”—percentages that plunged to 33% and 31% respectively for the six terms following Justice Butler’s departure.  Justice Crooks also experienced a sharp drop in the majority from the “Butler years” compared to the past six terms (87% down to 52%).  Meanwhile, the figures for Justices Prosser, Roggensack, and Ziegler moved just as abruptly in the opposite direction.  Joined in 2008-09 by Justice Gableman, Justices Roggensack and Ziegler voted in the majority over 70% of the time in 4-3 decisions, and the same could have been said for Justice Prosser, were it not for his change of course in 2013-14, noted above (which brought his total for the past six terms down to 63%, still far above his 43% for the “Butler years”).

Nearly as vivid is the contrast between the “Butler years” and the preceding six terms.  Four of the Court’s current justices (Abrahamson, Bradley, Crooks, and Prosser) were on the Court at this time (1998-99 through 2003-04), and they all found themselves casting majority votes at much different frequencies than would be the case during the “Butler years.” 

	1998-99 through 2003-04	the “Butler years”
Abrahamson	36%	59%
Bradley	37%	62%
Crooks	66%	87%
Prosser	75%	43%

Thus for the sixteen terms covered by the table, the “Butler years” represented a high-point for Justices Abrahamson, Bradley, and Crooks with regard to the calculations performed here.  During neither the six terms before, nor the six terms after the “Butler years” would they constitute part of the majority in 4-3 decisions at anything close to the rates that prevailed during Justice Butler’s tenure on the Court.  As for Justice Prosser, the “Butler years” amounted to just as striking an interval—though, in his case, a low point—with regard to majority votes in these cases. 

It will be interesting to see if any of these impressions are altered as the range of years is expanded—not only by adding data for 2014-15 and beyond, but also by gazing farther back into the past.

 

Information now available for the Court’s 2013-14 term has invited the question of whether the Court’s performance in 2013-14 represented a departure from the recent past.  Responses to this question often serve as the means by which commentators proceed to conclude that the Court is, or is not, more “polarized.”  Not surprisingly, opinions on this score depend in part on the category of data chosen for examination and the significance attributed to it as a key to understanding the Court’s behavior.  Thus a recent post from Foley and Lardner posed the question in its headline—“A Divided Court?”—and answered “no,” while a Wisconsin Law Journal article appeared under the following headline: “Supreme splits deepen: Analysis of latest term reveals new lows for concurrence.”[1]

Differing views on this question depend not just on the pieces of data selected for emphasis but also on the period of time chosen as a standard of comparison.  For instance, 5-2 votes accounted for 20% of all decisions in 2012-13 and then soared to 36% of all decisions in 2013-14.  This is a large increase by any reckoning, but it seems less dramatic when one discovers that 5-2 votes accounted for 32% of all decisions in 2011-12 and 40% in 2010-11.  It may be worthwhile then to offer a broader historical perspective and some additional information for those engaged in analyzing the Court’s recent activity.

The Court’s votes during the 2013-14 term were distributed as follows.[2]
7-0 decisions—30%
6-1 decisions—8%
5-2 decisions—36%
4-3 decisions—26%

If we include the 2013-14 term with the preceding 15 (that is, 1998-99 through 2013-14), we find the following averages for the 16 terms, along with the standard deviations.[3]
7-0 decisions—51%, standard deviation: 10.5%
6-1 decisions—10%, standard deviation: 4.2%
5-2 decisions—23%, standard deviation: 8.0%
4-3 decisions—17%, standard deviation: 5.5%

A number of things catch the eye.  The 2013-14 term’s figure for 6-1 decisions (8%) is very close to the average for the 16 terms (10%).  But such is far from the case for the other three vote categories, most notably for unanimous decisions, where the 2013-14 figure of 30% was two full standard deviations below the 16-term average of 51%.  For 5-2 decisions, the 2013-14 figure (36%) was well above the 16-term average of 23%—1.6 standard deviations above—which was also the margin by which the percentage of 4-3 decisions in 2013-14 exceeded the 16-term average.

It may also be instructive to compare the figures for 2013-14 with averages for the six terms during which the Court’s current members have occupied the bench (2008-09 through 2013-14).  The six-term averages are as follows (to aid comparison, figures for just the 2013-14 term are included in parentheses).
7-0 decisions—43%; standard deviation—8.4%.  (for 2013-14 alone, 30% of the term’s decisions were 7-0)
6-1 decisions—12%; standard deviation—4.0%.  (for 2013-14 alone, 8% of the term’s decisions were 6-1)
5-2 decisions—30%; standard deviation—7.5%.  (for 2013-14 alone, 36% of the term’s decisions were 5-2)
4-3 decisions—16%; standard deviation—6.2%.  (for 2013-14 alone, 26% of the term’s decisions were 4-3)

These figures encourage the question of how broadly 2013-14 marked a departure for the Court, even when the comparison is restricted to only the period of its current membership.  Certainly the change is evident with regard to the category of data under consideration here—most vividly for 7-0 and 4-3 decisions, where the figures for 2013-14 were much lower than the 6-term average for 7-0 decisions and much higher for 4-3 decisions (a gap of slightly more than one and a half standard deviations in each instance).

Conclusion
No doubt opinions will vary as to whether this information is germane to the question of a “polarized” Court, in large part because the term “polarized” can be defined in diverse ways—as can the term “contentious.”  Suppose, for purposes of discussion, that “contentious” cases are understood to mean cases with either two or three dissents (in a court with seven justices).  The 16 terms under consideration here averaged 40% “contentious” and 60% “uncontentious” cases per term, slightly more than two full standard deviations removed from the figures for 2013-14: 62% “contentious” and 38% “uncontentious.”  If some other definition of “contentious” cases seems more compelling, perhaps the complete set of data in the accompanying table will assist in determining whether this understanding of the term aptly characterizes recent practice in the Wisconsin Supreme Court.

In any event, the Court’s 2013-14 term witnessed some notable changes, even when the comparison is restricted to the last six terms, to say nothing of the lengthier period also considered here.  Thus, a year from now, it will be interesting see if corresponding data for the 2014-15 term will join that of 2013-14 in a journey away from the longer-term average, or whether the 2014-15 term will amount to a zig countering the zag in 2013-14.

[1] http://www.wiappellatelaw.com/2014/09/18/wisconsin-supreme-court-2013-2014-term-summary-part-2-a-bitterly-divided-court/ (accessed October 5, 2014)
http://wislawjournal.com/2014/09/08/supreme-splits%e2%80%85deepen-analysis-of-latest-term-reveals-new-lows-for-concurrence/ (accessed October 5, 2014)

[2] Here, and elsewhere in this post, the term “7-0 decisions” includes a small number of unanimous decisions with different vote counts (generally 6-0).  In similar fashion, “6-1 decisions” include a handful of 5-1 votes; “5-2 decisions” a few 4-2 votes; and “4-3 decisions” a very small number of 3-2 votes.

[3] The term “standard deviation” indicates that approximately 68% of the data are included within one standard deviation on either side of the average, and roughly 95% of all data are included within two standard deviations on either side of the average.  Taking 7-0 decisions as an example, consider the information supplied above—an average of 51% of all decisions per term were 7-0 decisions, with a standard deviation of 10.5%.  Possessing this information, we know that in roughly 68% of the Court’s sixteen terms, 7-0 decisions represented between 40.5% (51% minus 10.5%) and 61.5% (51% plus 10.5%) of all decisions.  And in roughly 95% of the sixteen terms, 7-0 decisions ranged between 30% (51% minus 21%—that is, minus two standard deviations) and 72% (51% plus 21%—that is, plus two standard deviations) of all decisions.  A glance at the accompanying table indicates that these approximations are reasonable.  The 1998-99 term registered the highest percentage of 7-0 decisions at 71%, while the 2013-14 term produced the lowest percentage of such decisions at 30%. 

These tables are derived from information contained in 61 Wisconsin Supreme Court decisions filed between September 1, 2013, and August 31, 2014.  The total of 61 decisions does not include the following items contained in the Supreme Court’s listing of opinions and dispositional orders for this period: (1) decisions arising from disciplinary proceedings against lawyers; (2) orders pertaining to editorial revisions of previous decisions, motions for reconsideration, and rulings by the Board of Bar Examiners; and (3) a decision that review of a ruling by the court of appeals had been improvidently granted.

In addition to the 61 decisions noted above, a deadlocked (3-3) per curiam decision was filed: State Farm Fire & Casualty Co. v. Hague Quality Water, International.  This is included only in the “Number of Oral Arguments Presented” table.  All of the decisions may be found on the Wisconsin Court System website.  http://wicourts.gov/

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

This post considers two categories of Supreme Court reversals of rulings from the court of appeals: reversals of rulings that had favored defendants, and reversals of rulings that had favored the state.[1]  The discussion covers 15 terms (1998/99 through 2012/13), which have provided a total of 316 criminal cases for consideration.[2] 

Overview
The 316 cases include 102 in which the court of appeals (or trial courts) had ruled in favor of defendants.[3]  In most instances, the phrase “ruled in favor of” meant something well short of dismissal of charges.  Defendants commonly requested such things as a new trial (claiming that evidence was obtained improperly, or that they had not received competent legal representation, or that instructions to the jury were flawed, and so forth).  After accepting these 102 cases, the Supreme Court reversed in 77% of them (79/102).

In the remaining 214 cases, the Supreme Court reviewed rulings in which the court of appeals or trial courts had sided with the state by approving the behavior of police and other authorities, rejecting the defendants’ arguments, and upholding their convictions.[4] Here, the Supreme Court reversed in 24% of the cases (52/214).

Change Over Time
The Court assumed its current composition in the 2008-09 term, when Justice Gableman replaced Justice Butler.  During the five terms from 2008-09 through 2012-13, the justices voted as follows regarding the issues outlined above.  They reversed 80% (20/25) of rulings that had favored defendants and 12% (8/68) of rulings that had favored the state. 

See Table 1 for year-by-year figures covering all 15 terms.

Individual Justices
One may also tabulate the votes cast by individual justices in these cases, and the results highlight some striking differences among the members of the Court.[5] 

For instance, a number of justices displayed comparatively small gaps between their reversal percentages in the two categories described above.  Thus Justice Bablitch voted to reverse in 49% of cases where rulings had favored defendants and in 41% of cases where rulings had favored the state.  For Justice Bradley the figures were 45% and 49%; for Justice Abrahamson, 40% and 54%, and for Justice Butler, 53% and 49%.  In contrast, the Court’s three most recent members have been much more inclined to reverse rulings favoring defendants (87%, 90%, and 92% for Justices Roggensack, Ziegler, and Gableman respectively), while very reluctant to reverse decisions favoring the state (13%, 11%, and 9% for the three justices). 

Meanwhile, Justice Sykes generated the most unusual combination of percentages, as she voted to reverse 86% of decisions that had favored defendants—but also voted 34% of the time to reverse decisions that had sided with the state.

Table 2 provides figures for all 12 justices who served on the Court during the period under consideration.

[1] In most instances these rulings were decisions issued by the court of appeals, though 18 percent of the cases involved trial-court rulings that court-of-appeals judges certified directly to the Supreme Court.

[2] The total of 316 cases is obtained by subtracting 16 cases from the set of 332 cases described in the first footnote of the previous post (“Race of Defendants in OWI, Drug, and Sex Cases”).  The 16 excluded cases consist mainly of those in which both the state and the defendant appealed different portions of a ruling, along with a handful of cases in which it was difficult to say whether the Supreme Court’s decision favored the state or the defendant.

[3] This happened in one of three ways.  (1) The trial court granted the defendant’s motion(s), and the court of appeals affirmed.  (2) The trial court granted the defendant’s motion(s), and the court of appeals passed the case up to the Supreme Court without issuing its own ruling.  (3) The trial court denied the defendant’s motion(s) and was then reversed by the court of appeals.

[4] This also happened in one of three ways—following courses analogous to those that yielded rulings favoring defendants. 

[5] Justice Steinmetz’s last year on the Court coincides with the first year of this study, and thus the figures on his line in Table 2 amount to a tiny (and quite possibly unrepresentative) sample of his voting throughout a tenure of two decades on the Court. 

During the past 15 terms (1998/99 through 2012/13), the Wisconsin Supreme Court decided 332 criminal cases.^[1]  In a large majority of these cases (89% or 295/332), public sources list the defendant’s race as well as the charges filed against him or her at the trial-court level.^[2]  As a result, it is possible to categorize cases according to the race of defendants not only for all criminal cases taken together—Caucasian (175/295=59%), African American (104/295=35%), Hispanic (8/295=3%), American Indian or Alaskan Native (6/295=2%), and Asian or Pacific Islander (2/295=1%)—but for various categories of crimes, such as those featured below.^[3]

OWI Cases
There were 31 cases in which the charges included operating-while-intoxicated (OWI) offenses, and in all 31 of these, the race of the defendant was specified.  Caucasian defendants figured in 94% (29/31) of these cases, leaving just one case with an African American and one case with a Hispanic defendant.

Drug Cases
There were 73 cases in which the charges included one or more drug offenses.  In 9 of these cases, the race of the defendant could not be determined, leaving a subtotal of 64 for consideration here.

Of these 64 cases, 48% (31/64) involved African American defendants, and 42% (27/64) involved Caucasian defendants.  The remaining defendants were distributed among three other racial categories on the Wisconsin Court System’s website: “American Indian or Alaskan Native” (1/64=2%), “Asian or Pacific Islander” (1/64=2%), “Hispanic” (4/64=6%).

Sex Crimes
There were a total of 93 cases in which at least one of the initial charges was a sexual offense.  In 5 of these, the race of the defendant was not specified, leaving 88 cases with which to proceed.

Of these, 23 cases involved African American defendants, and 62 cases involved Caucasian defendants.  The remaining three cases concerned other defendants: “American Indian or Alaskan Native” (2) and “Hispanic” (1).

In 65 of the 88 cases, defendants were charged with sexual offenses involving children (most often sexual assaults, but also such crimes as possession of child pornography).  The other 23 cases involved only adults (again, most often sexual assaults, but also crimes such as prostitution).

In 77% (50/65) of the cases involving children, the defendants were Caucasian, while 20% (13/65) of “child cases” had African American defendants.

Of the 23 cases in which only adults were involved in the alleged sexual offenses, 52% (12/23) had Caucasian defendants, and 43% (10/23) had African American defendants.

Questions
Why would Caucasian defendants figure in 77% of the sex crimes involving children, but only in 52% of the sex crimes involving adults?  Why would 94% of the defendants in OWI cases be Caucasian?  A number of such questions leap from the data.  Given that the justices are free to select the issues that they address in their decisions, does any connection remain between these percentages and differences in the types of crimes prevalent in the Caucasian and African American communities?  If the connection is very weak—that is, if one would be better advised to view the differences as a product of the process by which cases reach the Supreme Court—how does this process yield the figures reported above?  Put another way, do OWI, drug, and sex cases enter the judicial system at the trial-court level with roughly the same racial distributions evident when a much smaller number of them arrive at the Supreme Court?  Whatever the answer, it would reveal something significant about the judicial system and the society of which it is a part.

Finally, along with conscious choices made by the justices regarding issues for review, more impersonal or systemic factors must play some role in the selection of cases.  Relevant here may be the supposition that comparatively prosperous defendants are better able to afford the sort of legal representation likely to gain a hearing in the high court, though more study would be required to determine the degree to which this contributed to the results presented here.  For that matter, prosperity also correlates with a higher rate of automobile ownership and private internet access, but how much does this account for the distribution of racial percentages in OWI and child-pornography cases?  I would be grateful to benefit from any theories that readers can offer.

 

[1] Under consideration here are authored decisions in all cases whose numbers end with the CR suffix.  Occasionally, the Court consolidated multiple cases and addressed them in a single ruling.  When this occurred, I counted the ruling as one decision in the figures that follow.  In very rare instances, a case number ends in “CR” but does not pertain to a criminal matter, as in 2010AP000387-CR, In the matter of sanctions imposed in State v. Gregory K. Nielsen.  The issue here centered on a sanction of $150 imposed by the court of appeals on the Office of the State Public Defender because—the court of appeals maintained—the Assistant State Public Defender’s brief contained a deficient appendix.  Such cases are not included in the total of 332 covered here, and neither are per curiam decisions and orders pertaining to various motions.

In his generous comments on a draft of this post, Bill Tyroler observed prudently that collateral attacks (974.06, habeas) may lack the CR suffix even though the underlying charges were criminal.  However, as these cases surfaced scarcely more than once a year (19 cases in 15 terms, by my count), and would thus have no significant effect on the percentages in this post, I have not added them to the mix.

[2] Generally, this information may be found on the Wisconsin Court System’s website. http://wicourts.gov/   If this site does not list a defendant’s race, it can sometimes be determined through the “Offender Locator” of the Department of Corrections or by means of other sources such as sexual offender registries and the Milwaukee Public Library’s version of Ancestry.  I am especially grateful to Megan Zienkiwicz and John Jentz for helping me track down information on race when it was not provided by the Wisconsin Court System or the Department of Corrections.  Megan and John filled a dozen gaps in the data.

It should be noted that racial identity involves a subjective aspect that eliminates the possibility of absolute precision.  Indeed, a US census report this month indicated that nearly 10 million Americans chose a racial identity in the 2010 census that differed from what had been reported in the 2000 census—with especially large numbers of respondents of Hispanic descent moving into, or out of, the “white” racial category. http://hosted.ap.org/dynamic/stories/U/US_CENSUS_CHANGING_RACES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT (accessed August 11, 2014).

[3] The figures compiled for the following categories—OWI, Drugs, and Sex—include all cases for which at least one of the initial charges pertained to these crimes.  In some instances, as the judicial process unfolded, one or another of the charges might be dismissed, or dismissed but “read in” for sentencing purposes.  Less often, the defendant was ultimately acquitted.

These tables are derived from information contained in 79 Wisconsin Supreme Court decisions filed between September 1, 1998, and August 31, 1999.  The total of 79 decisions does not include the following items contained in the Supreme Court’s listing of opinions and dispositional orders for this period: (1) decisions arising from disciplinary proceedings against judges and lawyers; and (2) orders pertaining to motions for reconsideration, rulings by the Board of Bar Examiners, and a joint stipulation for dismissal and vacatur in Mason Shoe Manufacturing Company v. Firstar Bank Eau Claire.

Occasionally, the Court’s listing of opinions and dispositional orders contains 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. 

In addition to the 79 decisions noted above, three deadlocked (3-3) per curiam decisions were filed: State v. Deborah J.Z.; Eneman v. Richter; and State ex rel. Luedtke v. Bertrand.  These are included only in the “Number of Oral Arguments Presented” table—which is also the only table to include State v. Moucha, a two-paragraph per curiam opinion announcing that the Court had decided—after examining the briefs and hearing oral argument—that the petition for review had been improvidently granted.  State v. Watson (a 3-3 per curiam decision) does not even figure in the “Number of Oral Arguments Presented” table, because its filing date is listed as May 2, 1997 (despite the fact that it is included in the list of opinions and dispositional orders filed between September 1, 1998, and August 31, 1999).  All of the decisions may be found on the Wisconsin Court System website.  http://wicourts.gov/

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
 

 

 

Wisconsin Supreme Court justices have recently expressed concern over the rate at which cases have been decided this term and the often-lengthy period of time required for decisions to be issued.  With the Court’s term now concluded, the filing of the last batch of decisions over the next few weeks will shed more light on the scope of these problems.  In the meantime, a look at correlations between various factors during the Court’s previous 14 terms will provide some reference points from which to view the data for the current term later this summer.

Correlations—strong and weak

Data from the previous terms reveal a comparatively strong negative correlation between the number of decisions in a term and the number of days between oral arguments and the filing of decisions—that is, the larger the number of decisions, the fewer the number of days between oral argument and decision filing, while the smaller the number of decisions, the longer the wait.  The last seven years of the period under consideration have seen the Court issue 32% fewer decisions than it did during the first seven years, while, in line with this correlation, the number of days between argument and filing has usually been higher than in the earlier years.  (table and graphs)

The Court’s goal of 60 decisions in 2013-14 is similar to the annual number of decisions over the past five terms (except for 2012-13, when it plunged to 46).  Thus, if the correlation noted above holds for 2013-14, we can expect a lengthy average period between argument and filing.

One might also anticipate a strong correlation between the average number of concurring and dissenting opinions per decision and the number of days between argument and filing.  The larger the number of justices who write concurrences and dissents in a case, this reasoning holds, the longer it should take, on average, for a decision to be filed.  As it happens, such a correlation is evident, but it is a good deal weaker than the correlation noted above. (graph)   Clearly there is some relationship between the number of concurring and dissenting opinions on the one hand and the wait for a decision on the other, but this correlation has not been dramatic over the past 14 years.  It will be interesting to see if data for 2013-14 suggest a more robust relationship between these two factors.

Does unanimity matter in this regard?

It would appear plausible to hypothesize that the average number of days between argument and filing should decrease as the percentage of comparatively uncontentious (unanimous) decisions increases.  Yet the correlation here is very weak (graphs), suggesting that the percentage of split decisions has not been a pivotal factor in the growing number of days between argument and filing.

Past patterns will not continue indefinitely, of course, but without bearing them in mind, it will be impossible to ascertain in what ways, if any, the Court’s 2013-14 term has been remarkable.

The information presented in the following tables covers four terms of the Wisconsin Supreme Court (2009-10 through 2012-13) and focuses on the 42 cases in which the Wisconsin State Public Defender’s Office (SPD) presented oral arguments.  Table 1 identifies all of the cases in which the SPD presented oral arguments and indicates whether or not the outcome favored the SPD.  The second set of tables specifies how frequently each of the seven justices cast votes siding with the SPD.

Individual cases and outcomes
Votes by individual justices

Earlier this week the Milwaukee Journal Sentinel published an article[1] describing an unusual measure adopted by the Wisconsin Supreme Court.  Concerned about a looming backlog of cases, the justices voted 5-2 to limit the number of minutes during which they could discuss individual cases before reaching a decision.  Chief Justice Shirley Abrahamson, who opposed the time limits and suggested instead that the justices meet more frequently, provided a sense of the backlog’s dimensions in a memo dated May 21.  In particular, she expressed concern that so late in the term the justices had only discussed 14 (23%) of the 60 cases that they hope to decide by June 30.

The following table, which covers 14 terms (1999-00 through 2012-13) suggests that the current backlog is indeed striking—especially when compared to the early years of the period, when the court handled a much larger number of cases (sometimes twice as many as in 2012-13) and did so at a brisker pace than the justices have managed so far this year.  Moreover, the figures in the table pertain to the dates of issue for decisions, which could well be a good deal later than the discussions noted by Justice Abrahamson—further underscoring the extent of the delay in 2014.

Reading the table: Taking the 2008-09 term as an example, 62 decisions were issued that year—16 decisions (26%) by April 15, 2009, 21 decisions (34%) by May 15, 29 decisions (47%) by June 15, and 54 decisions (87%) by July 15.

Term	Percentage of Term’s Decisions Issued by the Following Dates
	April 15	May 15	June 15	July 15
2012-13	13/46=28%	15/46=33%	18/46=39%	40/46=87%
2011-12	24/61=39%	28/61=46%	36/61=59%	59/61=97%
2010-11	17/61=28%	22/61=36%	32/61=52%	53/61=87%
2009-10	8/59=14%	11/59=19%	15/59=25%	47/59=80%
2008-09	16/62=26%	21/62=34%	29/62=47%	54/62=87%
2007-08	16/70=23%	20/70=29%	35/70=50%	67/70=96%
2006-07	23/67=34%	24/67=36%	32/67=48%	60/67=90%
2005-06	22/81=27%	23/81=28%	47/81=58%	81/81=100%
2004-05	28/98=29%	39/98=40%	55/98=56%	97/98=99%
2003-04	36/90=40%	39/90=43%	57/90=63%	90/90=100%
2002-03	19/92=21%	28/92=30%	39/92=42%	87/92=95%
2001-02	29/89=33%	39/89=44%	45/89=51%	84/89=94%
2000-01	28/93=30%	32/93=34%	50/93=54%	93/93=100%
1999-00	27/89=30%	32/89=36%	41/89=46%	89/89=100%

The table includes per curiam decisions—but not decisions arising from disciplinary proceedings against judges and lawyers, nor petitions for review and decisions on various motions (for reconsideration, to dissolve injunctions, to vacate decisions, and so forth).

Members of the Wisconsin Supreme Court (terms run from September 1 to August 31)
2008/09-2012/13: Abrahamson, Bradley, Crooks, Prosser, Roggensack, Ziegler, Gableman.
2007/08: Abrahamson, Bradley, Butler, Crooks, Prosser, Roggensack, Ziegler.
2004/05-2006/07: Abrahamson, Bradley, Butler, Crooks, Wilcox, Prosser, Roggensack.
2003/04: Abrahamson, Bradley, Crooks, Sykes, Wilcox, Prosser, Roggensack.
1999/00-2002/03: Abrahamson, Bradley, Crooks, Sykes, Wilcox, Prosser, Bablitch.

[1] http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-imposes-time-limits-on-debate-to-clear-backlog-b99285777z1-262300041.html