Roggensack begins career on top

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In the Wisconsin Supreme Court’s 2003-04 term, first-year Justice Patience D. Roggensack was the justice most likely to be in the majority, just as her predecessor, former Justice William A. Bablitch, had been in the 2002-03 term.

On the other end, the justice most likely to dissent was Chief Justice Shirley S. Abrahamson, just as she had been in the 2000-01 and 2001-02 terms. In 2002-03, Abrahamson was barely edged out as the most frequent dissenter by departing Justice Diane S. Sykes.

During the high court’s most recent session, Roggensack was in the majority in 72 of the 75 cases in which she participated, dissenting only three times. That placed Roggensack on the winning side in 96 percent of cases in her first term on the high court.

Abrahamson was in the majority in only 71 percent this term, voting with the majority in 57 cases, and dissenting in 23.

The next most frequent dissenter was Justice Ann Walsh Bradley, who dissented 18 times, and was in the majority 78 percent of the time.

The remainder of the court was extremely close behind Roggensack, with both Justice Jon P. Wilcox and Sykes voting with the majority in 95 percent of cases, Justice N. Patrick Crooks, in 94 percent, and Justice David T. Prosser in 93 percent.

Of the 83 cases the court decided in the term, 51, or 61 percent, were unanimous, and 32 produced a divided court. Last term, only 51 percent of cases decided were done so unanimously.

However, because of frequent recusals by Sykes due to her then-pending nomination to the Seventh Circuit, and by Roggensack, due to her having participated in cases at the court of appeals level, there were many more 3-3 splits this year, resulting in remand to, or affirmance of, the court of appeals.

Those cases were not included in the tally, nor were conclusions that review was improvidently granted, or orders deciding motions for reconsideration. Also, for determining who was in the majority and who dissented, the case of DeWitt v. Galaxy produced such a fractured court, with no justice in the majority on all issues, that it was disregarded entirely.

Four to Three

In eight sharply-divided cases decided by a four to three vote, Roggensack was the only justice to be in the four-justice majority in all eight cases. Wilcox was close behind, in the majority in seven. Next was Sykes, at six, followed by Crooks, at five, and Prosser at four. In only one of the eight four-three splits were Abrahamson or Bradley in the majority.

In contrast, Prosser led the group last year, voting with the majority in nine of 12 such cases. Abrahamson and Bradley both voted with the majority in seven of the 12 cases last term, and Sykes was last, landing in the majority in only four.

Alignment

The two justices most likely to concur were justices Wilcox and Roggensack, agreeing in 97 percent of cases. The next most common alignments were a tie at 95 percent: Abrahamson and Bradley; and Crooks and Roggensack.

The two justices least likely to concur were Abrahamson and Wilcox at only 64 percent. With 61 percent of the decisions being unanimous, that means that in only two cases in which the decision was not unanimous did Abrahamson and Wilcox agree.

The second least likely justices to concur were Abrahamson and Sykes, at 71 percent.

Criminal Law

In criminal law cases, the justices most likely to agree were Crooks and Wilcox, at 97 percent. Of the 31 criminal law cases the court heard, Crooks and Wilcox were on the same side in all but one.

The next two highest pairings in criminal cases also involved Wilcox, agreeing with Roggensack in 96 percent of cases and with Sykes in 95 percent. As with Crooks, Wilcox only disagreed in one case with Sykes and Roggensack, but Wilcox only heard 28 cases with Roggensack, and 19 with Sykes.

Again, the two justices least likely to concur were Abrahamson and Wilcox, at 61 percent, the same percentage of criminal law cases that were unanimous. Second least likely to concur in criminal cases was the combination of Abraham-son and Crooks, at 65 percent.

The justice most likely to be in the majority in criminal cases was Roggensack, landing in the majority in 100 percent of the 28 cases in which she participated.

Second was Wilcox at 97 percent, followed by Sykes at 95 percent, and Prosser and Crooks at 94 percent. After that, a substantial gap arose, with Bradley in the majority in only 74 percent of cases and Abrahamson in the majority in only 65 percent.

Last term, as well, Bradley and Abrahamson were most likely to dissent in criminal cases, with Bradley in the majority in 74 percent and Abrahamson at 68 percent.

Sykes, however, went from being in the majority in only 79 percent of criminal cases, to 95 percent.

Torts and Insurance

While the only large change, as far as being in the majority in criminal cases, was the large increase in Sykes’ percentage, the situation was far different in cases involving tort and insurance issues.

In the 2002-03 term, Abrahamson was in the majority in 100 percent of the 20 cases that the court heard. This term, she was least likely to be in the majority — only 69 percent.

At the top were justices Prosser and Wilcox, who were both in the majority in 100 percent of the 14 cases the court heard. Next were Crooks and Roggen-sack, both at 93 percent; Sykes, at 92 percent; and Bradley at 77 percent.

In contrast, the least likely to be in the majority in the 2002-03 term was Justice Sykes, who went from 74 percent to 92 percent this term.

No less than five different combinations of justices agreed in every tort or insurance case in which they both sat: Abrahamson and Bradley; Crooks and Roggensack; Crooks and Wilcox; Prosser and Wilcox; and Roggensack and Wilcox.

In all, the court heard 14 tort/insurance cases, reaching a unanimous decision in 8, or 57 percent.

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Least likely to be on the same side was the combination of Abrahamson and Sykes at 64 percent. In seven cases (all unanimous), the two voted together. However, in all four cases that produced a split court, they disagreed.

The second least common concurrence was Abrahamson and Wilcox, at 67 percent.

David Ziemer can be reached by email.