Although Justice Daniel Kelly has established himself as a resolute member of the Wisconsin Supreme Court’s conservative majority, there appeared reason to surmise back in September of 2017—following his first term on the bench—that he would be more likely than the other new conservative justice, Rebecca Bradley, to chart an autonomous course on occasion.^[1] To be sure, this was far from certain, based on the justices’ voting records for 2016-17. Even in non-unanimous decisions, Justices Kelly and Bradley voted together 97% of the time, more frequently than any other pair of justices.

Still, grounds remained for predicting that Justice Kelly might become the closest thing to a nonconformist among conservatives because of the votes that he cast in Fourth Amendment cases. While the court’s three most conspicuous conservatives—Justices Roggensack, Ziegler, and Gableman—almost never accepted Fourth Amendment arguments (3%, 9%, and 8% of the time, respectively), Justice Kelly did so in 38% of the votes that he cast. This exceeded considerably the percentage for Justice R. Bradley (27%) and prompted a post titled “Justice Kelly a Maverick?” in the autumn of 2017.^[2][Continue Reading…]

The Supreme Court did not file any new decisions this week, and thus there are no changes in the standings.

These tables are derived from information contained in 296 Wisconsin Supreme Court decisions that were turned up in a Nexis Uni search for decisions filed between September 1, 1970, and August 31, 1971.  The total of 296 decisions does not include rulings arising from (1) disciplinary matters involving lawyers, and (2) various short orders pertaining to petitions, motions, applications and the like (generally disposed of with per curiam decisions).

The total of 296 cases includes State v. Smith, 50 Wis. 2d 460, which appears to be a 4-3 decision in which one of the three dissenting justices (“one other member”) is not identified. Just as unusual, the majority opinion is credited to Justice Wilkie, who is also one of the three justices who dissented in part.

The tables are available as a complete set and by individual topic in 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

Although the court filed only one decision this week (Veritas Steel, LLC v. Lunda Construction Company), it enabled the Affirmed to enter the lists in dramatic fashion. Two of the team’s firms participated in the case and netted a total of 11 points between them—three from Axley Brynelson (for a brief) and eight from Foley & Lardner (for a brief and a favorable outcome). This haul propelled the Affirmed over the Citations and Writs into third place, only four points behind the Waivers.

Click here for complete, updated standings.

The 2019-20 Fantasy League season began with the defending-champion Gavels of the State Public Defender’s Office seemingly bent on dispelling rumors that success had cultivated dissipation in their ranks. With a shock-and-awe opening, they netted a total of 20 points for briefs and oral arguments in State v. Anderson, State v. Lopez (consolidated with State v. Rodriguez), State v. Pope, and State v. Coffee. No previous season has witnessed such a scoring barrage at the outset.

However, the Waivers weathered this initial onslaught with an impressive display of their own, posting 10 points from von Briesen & Roper (for a brief, oral argument, and favorable outcome in Lamar Central Outdoor v. Division of Hearings & Appeals) and 5 points from Husch Blackwell (for a brief and oral argument in Hinrichs v. DOW Chemical Company). These early results suggest that the Waivers’ offseason acquisition of Husch Blackwell was indeed masterful and may well enable them to keep pace with the Gavels in the months to come.

Among the other teams, only the Citations stuck a toe in the water on opening day, picking up a point from the Frank J. Remington Center for an amicus brief in State v. Roberson.

Click here for complete, updated standing.

No US Supreme Court justice is more admired by American conservatives than the late Antonin Scalia—a man who President Trump assured a joint session of Congress would “forever be a symbol of American justice.”^[1] Given the conservative ascendancy at the Wisconsin Supreme Court, one would expect that indications of esteem for Justice Scalia would not only be numerous, but also more frequent than those for other US Supreme Court justices. And so they’ve been—but not necessarily in a manner that many would anticipate.[Continue Reading…]

During the Fantasy League’s winter meeting this past week, a single question predominated at sessions chaired by the league’s Competition Committee: What can be done to challenge the Gavels of the State Public Defender’s Office? League champions ever since the inaugural 2015-16 season, the Gavels have shrugged off every effort by the Competition Committee to provide them with more formidable opposition. Consequently, for 2019-20, the league has allowed—in fact, required—each of the Gavels’ four rivals to add another law firm to their rosters.

Commentators have been impressed by the alacrity with which the four teams—the Affirmed, the Citations, the Waivers, and the Writs—jumped at this opportunity, suggesting that their combative spirit has not been crushed by four years as also-rans. Indeed, the wooing of new firms soon escalated to a frenzy, with Husch Blackwell the most coveted prize. Having delivered four oral arguments in cases decided during the 2018-19 term, Husch Blackwell would have made any team an instant contender that season, and thus Husch received lavish offers from all four suitors. In the end, the Waivers were the most seductive, and the addition of Husch Blackwell to their lineup accounts for the enthusiasm with which their fans are greeting the onset of the 2019-20 season.[Continue Reading…]

These tables are derived from information contained in 292 Wisconsin Supreme Court decisions that were turned up in a Nexis Uni search for decisions filed between September 1, 1971, and August 31, 1972.  The total of 292 decisions does not include rulings arising from (1) disciplinary matters involving lawyers, and (2) various short orders pertaining to petitions, motions, applications and the like (generally disposed of with per curiam decisions).

The tables are available as a complete set and by individual topic in 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

I enthusiastically recommend a new website and blog about the life and times of Lavinia Goodell—Wisconsin’s first woman lawyer and the first woman to be admitted to practice at the Wisconsin Supreme Court (over the Chief Justice’s heated objections). Not only a pioneer in the legal profession, she was active in many other causes, including jail reform, temperance, and women’s suffrage before her death in 1880.              

The creators of this site—appellate attorney Colleen Ball and Wisconsin Supreme Court Commissioner Nancy Kopp—are mining a wealth of primary sources, many previously untapped, and they have already begun to present their findings serially in blog format. If you would like to see the revelations recently posted, and subscribe for alerts to forthcoming posts, visit “Lavinia Goodell: The private life and public trials of Wisconsin’s first woman lawyer.”

The Fifth Amendment provides some of the best-known protections promised to Americans by the US Constitution. It prohibits (1) prosecution for serious crimes without a prior, legal indictment by a grand jury; (2) repeated prosecution for the same offense (“double jeopardy”); (3) involuntary self-incrimination—being forced to testify or give evidence against one’s self; and (4) deprivation of life, liberty, or property without “due process of law” or “just compensation.” SCOWstats has previously examined the fate of other constitutional principles at the Wisconsin Supreme Court; today we turn our attention to the Fifth Amendment.[Continue Reading…]