Three Wisconsin circuit court judges — all from Milwaukee County — led the courts in facing review on appeal without being re-versed once in 2008.
Judges William W. Brash, III, and Daniel L. Konkol were both reviewed 16 times in 2008, and affirmed 16 times, without blemish.
Judge Brash joked that he is sure it’s only a temporary situation.
“But it’s nice to know, after you put lots of time to reach decisions in cases, that the Court of Appeals agrees,” Brash said.
The only other judge to face double-digit reviews without any reversals was their colleague, Timothy M. Witkowiak, who was affirmed 11 times without reversal.
In fact, Judge Witkowiak has never been reversed. Since taking the bench in 2002, he has been affirmed 22 times without reversal, currently the longest streak among circuit court judges.
For sheer volume of reviews, four other Milwaukee County judges were reviewed more than 20 times in 2008.
Judge M. Joseph Donald was affirmed 21 times, with three reversals; Judge Timothy G. Dugan was affirmed 20 times, with only one reversal; Judge Dennis P. Moroney was affirmed 22 times, with two reversals; and Judge Jeffrey A. Wagner was affirmed 27 times, with three reversals.
Judge Wagner has long been the most frequently reviewed judge in the state. Since Wisconsin Law Journal began keeping track starting Jan. 1, 2000, he has been affirmed 136 times, and reversed 13 times, a 91 percent affirmed rating.
Only one other judge, Dugan, has been affirmed more than 100 times during that period.
Since 2000, Dugan has been affirmed 108 times, and reversed 25.
The accompanying charts show not only how the state’s circuit court judges fared when their decisions were reviewed in the Court of Appeals, but how circuit court judges fared if their decisions were ultimately reviewed by the Wisconsin Supreme Court in 2008.
Of Wisconsin circuit court judges with cases ultimately considered by the Wisconsin Supreme Court, four judges were reviewed twice and affirmed both times: Milwaukee County Circuit Court judges Clare L. Fiorenza and John Franke; Kenosha County Circuit Court Judge Wilbur W. Warren, III; and Ozaukee County Circuit Court Judge Thomas R. Wolfgram.
Judge Fiorenza was also reviewed in the Supreme Court twice in 2007, and affirmed in both cases.
Methodology
The methodology for this project is admittedly not perfect: only full decisions included on the Wisconsin Court System’s Web site are counted, not summary decisions by the Wisconsin Court of Appeals.
Also, despite efforts to avoid such errors, a judge could be listed in the decision as the presiding judge being reversed, even if he merely entered an order consistent with the law of the case as established by another judge; or a judge could be reversed in the Court of Appeals, and ultimately be affirmed in the Supreme Court, but the earlier reversal would nevertheless remain counted as a reversal in the Court of Appeals.
And, of course, the law changes; a judge’s holding could be entirely consistent with binding precedent at the time it was issued, and be reversed only because a subsequent decision changed the law.
The process is also very labor-intensive, and despite utmost care, human error is possible.
Nevertheless, the project has been continued over the last nine years in the belief that the effect of potential occasional errors in the methodology in any given year will be minimal relative to individual judges’ performance over an extended period of time.
Click here to see how the Wisconsin Circuit Court judges fared in the Wisconsin Court of Appeals and in the Wisconsin Supreme Court in 2008 (PDF).
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January 27th, 2009 at 1:50 pm
Never being reversed means a circuit court judge is not fully doing the job. I say it is a mark of dishonor. Change is fundamental the the American system of justice. Those who play it safe and are never reversed might as well work for the Queen of England. Had they been in power in the days of the revolution, we would still be under her rule.
What kinds of things do I mean? take the cases of Dred Scott, Koramatsu and Plessy v Ferguson. Those decisions applied the law – perverse as it was and the people who benefited cheered them on. the rest were shut out. Ironically, Bush v Gore is an example of a court run amok while deviating from the norm.
Judges who play it safe will not be reversed. Playing it safe is an anathema to the body politic. It took courageous judges who understood their role to bring about the changes that eliminated those horrendous decisions noted above. Today’s play it safe judges would have us living the way people did in the 1700’s. No thanks. Judges need to stop playing politics and playing it safe and do what is right, not what will get them affirmed.
January 27th, 2009 at 2:06 pm
No. Following precedents set by higher courts, even when a judge does not agree with that precedent is neither “playing politics” nor “playing it safe.” It’s a judge’s duty, and it is the very antithesis of playing politics.
January 28th, 2009 at 8:49 am
Most appealed decisions made by circuit court judges are not based on precedent, because there is no clear precedent for what occurred. What of appeals where there is no case law on point? Circuits judges are called on daily to issue ruling where there is no precedent. They have a choice. Typically, lazy judges will (1) support the government over the people, (2) support large corporations – like newspapers – over the people, and (3) support white people over all others.
January 30th, 2009 at 6:16 pm
I would say the Court of appeals is not doing their job as they should be. The state of Wisconsin has a well deserved reputation of stealing the little guys rights, with the Court appeals being the hangman.