We have all been hoping for clean judicial elections this spring. But alas, the first filth has been flung, and much to my horror, it is my own work.
Every January, I count the affirmances and reversals of circuit court judges in the Court of Appeals, and compile charts (PDF) showing the results.
Before I even proceed any further, let me set forth the caveat that is included every year with the results:
“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.”
Unfortunately, an irresponsible special interest group called One Wisconsin Now has looked at the numbers and found that Supreme Court candidate Judge Randy Koschnick is in the bottom third of circuit court judges throughout the state.
True perhaps, but, if even one of the 27 cases used to reach that had been an affirmance, rather than a reversal, Judge Koschnick would be above the median, and be in the top half.
One Wisconsin Now also claims that Judge Koschnick is reversed in one-quarter of his cases. This is of course absurd, as my numbers look only at those court of appeals opinions that result in a full opinion. The thousands of cases where trial judges reach the correct result and are not appealed are not included.
The organization also claims there is something remarkable about the cases in which Judge Koschnick is reversed, because the Court of Appeals uses language along the lines of “the circuit court judge applied an incorrect legal standard.”
Of course, we all know that in every case when an appellate court reverses, it says that the wrong legal standard was applied, or the circuit court erroneously exercised its discretion, or applied the law incorrectly. Otherwise, the case would be affirmed.