Crooks emerges as court’s key swing vote

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In the Wisconsin Supreme Court’s 2004-05 term, Justice N. Patrick Crooks clearly emerged as the key swing vote, and the justice most frequently in the majority, while Justice Jon P. Wilcox was the most frequent dissenter. Crooks dissented only four times, and in 19 cases decided by a vote of four to three, Crooks was in the majority in all but three.

The voting of the court this term, Justice Louis B. Butler’s first, marks a significant shift from the court’s previous term, in which Justice Patience Drake Roggensack was most often in the majority, and Chief Justice Shirley S. Abrahamson was most frequently among the dissenters.

The term was only the second since Wisconsin Law Journal began tallying the justices’ voting patterns — the 2000-01 term — that Abrahamson was not the most frequent dissenter.

During the most recent term, Crooks was in the majority in 87 of the 91 cases in which he participated, dissenting an astonishingly low four times. That placed Crooks in the majority in 96 percent of cases.

In contrast, Justice Wilcox was in the majority in only 74 percent of the cases, voting with the majority in 67 cases, and dissenting in 23.

Justice Ann Walsh Bradley was second most likely to be in the majority, dissenting only 10 times, and landing in the majority 80 times, 89 percent.

The rest of the justices were all in the majority 83 percent of the time, except for Abrahamson, at 82 percent. Abrahamson and Butler both dissented 16 times. Justice David T. Prosser and Roggensack dissented 15 times.

Of the 94 cases that the court decided, 48 cases, or 51 percent, were unanimous, while 46 cases produced a divided court. Last term, 61 percent of decided cases were unanimous.

Cases that produced an evenly divided court were not included, nor were cases dismissed as improvidently granted, or motions for reconsideration. In addition, State v. Stenklyft, 2005 WI 71, 697 N.W.2d 769, produced no majority opinion, but three plurality opinions, and was disregarded in the analysis entirely.

Four to Three

In 19 sharply-divided cases decided by a four to three vote, Crooks was in the majority in 16. Abrahamson, Bradley, and Butler were all in the majority in 12 cases (all the same ones), and dissented in the same 7 cases.

In contrast, Wilcox and Roggensack dissented in each of the 12 cases in which Abrahamson, Butler, and Bradley were in the majority, and were in the majority in the seven in which they dissented.

Prosser dissented in nine of the cases, and was in the majority in 10.

In short, with the exception of three cases in which the majority consisted of Abrahamson, Butler, Bradley, and Prosser, all of the four-three splits consisted of either Crooks, Abrahamson, Bradley, and Butler; or Crooks, Prosser, Roggensack, and Wilcox.

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In contrast, last term, there were only eight four-three splits, and Roggensack was in the majority in all eight — the only justice in all eight majorities — while Abrahamson and Bradley were in the majority in only one of those eight cases.

In the 2002-03 term, retired Justice William Bablitch was the key swing vote in four to three cases, and was in the majority most often. In both the 2000-01 and 2001-02 terms, Justice Prosser had that distinction.

Alignment

The two justices most likely to concur were Abrahamson and Bradley, voting together in 96 percent of cases, all but 4. The second most frequent aligners were Wilcox and Roggensack, who voted together in all but 6 cases, a 93 percent rate of concurrence.

Least likely to concur were Bradley and Wilcox, at only 53 percent, virtually never on contentious cases, considering that, in 51 percent of the cases, the court was unanimous. The second least likely combinations were Wilcox and Abrahamson, and Wilcox and Butler, at 58 percent each.

Criminal Law

In criminal law cases, the justices most likely to agree were Abrahamson and Bradley, concurring in 100 percent of the cases in which they both participated. The next highest combinations were Abrahamson and Butler, and Butler and Bradley, both at 96 percent. The fourth highest combination was Wilcox and Roggensack, at 93 percent.

Least likely to concur were Wilcox and Butler, at only 46 percent.

The justice most likely to be in the majority in criminal cases was, as when considering all cases, Crooks, at 93 percent. Second were Abrahamson and Bradley, both at 86 percent. In descending order were Butler at 82 percent, Prosser at 75 percent, Roggensack at 74 percent, and finally, Wilcox at 64 percent.

Those results stand in stark contrast to previous terms. Last term, Roggensack was in the majority in 100 percent of criminal cases, followed by Wilcox at 97 percent. In each of the court’s two previous terms, Abraham-son and Bradley were the two justices most likely to dissent in criminal cases.

In both those terms, Bradley was in the majority in only 74 percent of criminal cases. Abrahamson was in the majority in only 65 percent in the last term, and only 68 per
cent the term before that.

Torts and Insurance

In cases involving torts and insurance law issues, there were dramatic changes, as well. In the 2003-04 term, Prosser and Wilcox were in the majority of 100 percent of those cases that the court heard.

This term, Wilcox was the justice least likely to be in the majority, at only 68 percent, and Prosser was third least likely to be in the majority, at 78 percent. In the penultimate position was Abraham-son at 76 percent

Instead, the justice most frequently in the majority was, again, Crooks, joining the majority in 100 percent of the cases in which he participated. Second was Bradley at 89 percent, followed by Butler and Roggensack, both at 85 percent.

The two justices most likely to concur in these cases were Roggensack and Prosser, voting together in 100 percent of the cases.

The second most frequent aligners were Abrahamson and Bradley at 95 percent, followed closely by Wilcox and Roggensack at 94 percent.

Least likely to vote together were Abrahamson and Wilcox at only 44 percent, and Abrahamson and Prosser, at only 50 percent.

Explanations

"By any measure, this was an extraordinary year at the Wisconsin Supreme Court," observed Joseph D. Kearney, Dean of Marquette University Law School. "From tort law to criminal law, the court was willing to depart from what had seemed to be settled approaches. The end result was a set of at times astonishing decisions."

Kearney noted that, in his capacity as a member of the bar, he had represented one of the unsuccessful amici urging against the Supreme Court’s lead-paint decision, but he pointed to such other decisions as the decision striking down the legislative caps on medical malpractice awards and the abandonment of the "lockstep" doctrine under which Wisconsin had traditionally followed U. S. Supreme Court precedent in interpreting analogous provisions of the Wisconsin Constitution.

Michael McChrystal, a professor of legal ethics and torts at Marquette, suggested the addition of Justice Butler played a significant role in the changes. McChrystal observed, "Justice Butler’s joining the court after Justice Sykes’ appointment to the Seventh Circuit brought about changes that really affected some areas, especially personal injury. The change brought about a shift in a court that had been very closely divided."

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Retired Justice Janine P. Geske noted Crooks’ role in the past term: "I know many people are surprised with Justice Crooks’ votes on a few of the very high profile cases this last term. The problem with those of us on the outside guessing why a justice voted a particular way is that the internal discussions both on these and prior cases, along with extensive research and writing, often have the most impact on an ultimate vote.

"Many would like to think that the members of the court just quickly vote politically on how a case should turn out and then someone figures out how to write it. It does not work that way. The justices take all of these cases very seriously and work through them in light of prior case law. I wish people could know all the hard work that goes into each opinion."