Crooks still Supreme Court's swing vote

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For the third year in a row, Wisconsin Supreme Court Justice N. Patrick Crooks was the justice most likely to be in the majority, dissenting in only two cases in the 2006-07 term.

That placed Crooks in the majority of 97 percent of the cases the court decided. In the court’s two previous terms, Crooks was in the majority 96 percent of the time, and in the last three terms combined, Crooks has dissented only nine times.

In contrast, for the second year in a row (and for the fifth time in the last seven terms), Chief Justice Shirley S. Abrahamson was most frequently in dissent.

Abrahamson dissented 20 times this term, and was in the majority in only 69 percent of cases. Last term, as noted, Abrahamson was also the most frequent dissenter, but was still in the majority in 79 percent of cases.

While those two retained their positions, the other justices flipped in how often they were in the majority.

In 2005-06, the second, third and fourth justices most likely to be in the majority were Justices Jon P. Wilcox, Patience Drake Roggensack, and David T. Prosser, respectively, while Justices Ann Wash Bradley and Louis B. Butler, Jr., were fifth and sixth, respectively.

In 2006-07, in contrast, Butler was second most often in the majority, at 85 percent, and Bradley was third, at 81 percent.

Fourth, fifth, and sixth were Roggensack at 79 percent, Wilcox at 78 percent, and Prosser at 74 percent. Only 37 percent of the court’s opinions were unanimous, and 24 percent of the decisions resulted in a four-three split.

Four to Three

Of the 16 cases that produced a four-three split, Crooks was in the majority all but once.

Butler was in the majority in 13 of those cases, Bradley in 11, Abrahamson in 10, and Wilcox in seven. Prosser and Roggensack were in the majority in only six of the cases.

The breakdown of which justices were in four-three splits marked a return to voting blocs that was apparent in the divisive 2004-05 term, but which was absent last term.

In 10 of those cases, the justices in the majority were Abrahamson, Bradley, Butler, and Crooks. Another four of those decisions had Crooks, Prosser, Roggensack, and Wilcox in the majority.

This alignment is similar to 2004-05, when, of 19 four-three splits, 15 involved one of those two combinations of justices.

Last term, in contrast, there were 12 four-three splits, only three of which consisted of Abrahamson, Bradley, Butler, and Crooks in the majority, and only one of which was Crooks, Prosser, Roggensack, and Wilcox. In addition, although Crooks was most often in the majority in four-three splits, it was only nine of 12 (75 percent) in 2005-06, compared to 15 of 16 this term (94 percent).

Alignment

The two justices most likely to concur were, as in 2005-06, Roggensack and Wilcox, concurring in 93 percent of cases. Roggensack and Prosser concurred in 90 percent, and the respective combinations of Abrahamson and Bradley, and Wilcox and Prosser, each concurred in 89 percent.

Least likely to concur were Abrahamson and Prosser, at 42 percent. Second least likely to concur were Abrahamson and Wilcox, at 46 percent.

Again, the numbers reflect greater division on the court this term compared to the previous one. In 2005-06, the justices least likely to concur were Abrahamson and Wilcox, and Abrahamson and Roggensack, but in that term, both combinations concurred in 64 percent of cases.

Torts and Insurance

For the first time in three terms, Crooks was a dissenter in a case involving torts or insurance law. The two previous terms, Crooks was in the majority in 100 percent of cases. This term, however, he was in the majority in 11 of 12 decisions.

The rest of the justices were roughly similar in terms of their frequency in the majority: Butler and Roggensack were in the majority in nine of 12 cases; Prosser and Wilcox in eight; and Abrahamson and Bradley in seven.

The justices most likely to concur were Abrahamson and Bradley, voting together in 100 percent of the cases. The second most likely to concur were Roggensack and Prosser at 92 percent.

The least likely to concur were the combinations of Abrahamson and Prosser, and Bradley and Prosser, both agreeing only 25 percent of the time. Two of the tort/insurance cases were unanimous; thus, in non-unanimous cases, Prosser voted with Abrahamson and Bradley only once.

Again, the numbers reflect greater division on the court. In the previous 2005-06 term, the least likely to concur were Butler and Prosser; however, they still concurred in 56 percent of tort and insurance cases that term, more than twice as often as Prosser voted with Abrahamson or Bradley this term.

Criminal Law

In the area of criminal law, Crooks had no dissents at all, voting with the majority in all 19 criminal cases the court decided.

The justices second most often in the majority were Butler and Prosser, both at 89 percent.

Bradley, Roggensack, and Wilcox, were all in the majority in 84 percent of criminal cases. Abrahamson dissented far more frequently than any other justice, landing in the majority in only 63 percent of cases.

The justices that concurred most frequently in criminal cases were Wilcox and Rog-gensack, voting together in 100 percent of criminal cases. Second most frequently concurring were Prosser and Roggensack, and Prosser and Wilcox, at 94 percent.

Least frequently concurring was Abrahamson and Roggensack, and Abrahamson and Wilcox, at only 47 percent.

Once again, the numbers reflect a more divided court. Abrahamson and Wilcox voted together in 57 percent of criminal cases in 2005-06.

Interestingly, however, the justices who concurred least in criminal cases in 2005-06 were Roggensack and Butler, concurring in only 54 percent of cases. This term, they concurred 74 percent of the time.

Thus, criminal law was one area in which there was not (for lack of a better term “polarization among the usual suspects” — with Abrahamson, Bradley, and Butler on one side, and Prosser, Roggensack, and Wilcox on the other, with Crooks casting the deciding vote.

Only two of the 16 four-three splits this term were criminal; in both, the majority consisted of Abrahamson, Bradley, Butler, and Crooks.

In contrast, in the 14 civil four-three cases, 12 broke down into one of the two combinations of “the usual suspects.”

In eight of those 14, Abrahamson, Bradley, Butler, and Crooks were in the majority; and in four, the majority was Crooks, Prosser, Roggensack, and Wilcox.

So, while the court remains sharply polarized on many areas of the law, including personal injury and insurance cases, criminal law appears to no longer be one of them, or at least, it hasn’t been the past two terms.

Eight of the 19 criminal law cases were unanimous this term; four were nearly unanimous, producing lone dissents; five produced two dissenters; and as noted, only two resulted in a four-three split.

Former Supreme Court Justice Janine Geske remarked, “The year was a relatively quiet one for the Supreme Court. Many of its decisions, although obviously very
important to the parties and to people who practice in the particular area of law impacted by these cases, could be characterized as textbook rulings. Although there were a few decisions that generated some significant publicity, for the most part the cases simply clarified or developed the law in specific types of cases in ways that will assist trial judges and lawyers in future cases.”

Geske added, “Many cases dealt with issues like the right to hearings in postconviction matters, or the computation of time for court procedures or determining the parameters of proof needed on a variety of issues. The court understands that providing clarity in the law is important to the courts and to litigants in all areas of the law. The court obviously devoted the year to providing that service.”