The streak is over.
Not to worry, Packer fans; not Brett Favre’s streak.
No, Milwaukee County Circuit Court Judge John J. DiMotto was finally reversed by the Wisconsin Court of Appeals, for the first time since Wisconsin Law Journal began tracking the appellate records of circuit court judges on Jan. 1, 2000.
Through 2006, Judge DiMotto had been reviewed and affirmed by the appellate court 46 times without reversal. His closest competitor was Kenosha County Judge Barbara Kluka, at 25.
Both, however, were finally reversed in ’07. As if that weren’t enough, DiMotto was actually reversed not once, but twice on the same day, in Mortle v. Milwaukee County, and In re the Marriage of Wright v. Wright.
DiMotto commented that, there were so many issues on review in Wright that he expected to be affirmed on some, and reversed on others, which is what happened.
DiMotto stated, “I analyze every case very carefully and try to make the right decision.
The Court of Appeals doesn’t always agree, and the streak is over.”
He added, “Civil law is so broad that it is very difficult to always be right. So long as a judge approaches a case carefully, and does the research, that is all we can ask. We are human.”
There is a new streak going, though. For the second year in a row, the circuit court judge with the most affirmances and no reversals in the court of appeals was Milwaukee County Judge David Hansher. In 2007, he was reviewed 19 times without reversal, adding to his perfect record in 2006, with 16 affirmances, and no reversals.
It has now been more than four years since Hansher was reversed; since Wisconsin Law Journal began collecting this data, in 2000, Hansher has been affirmed a total of 69 times, and has been reversed only nine times.
Quoting the Orson Welles movie, “The Magnificent Ambersons,” Hansher re-marked, “I expect to get my comeuppance in the near future.”
“But seriously,” Hansher added, “I follow the law as interpreted by the higher courts, even if it is contrary to what I’d like to do.”
Only one other judge had double-digit affirmances, and no reversals, in 2007 — Milwaukee County Circuit Court Judge William Sosnay, who was affirmed 12 times with no reversals.
Nearly perfect in 2007 was Milwaukee County Circuit Court Judge Charles Kahn, with 14 affirmances, and only one reversal.
Once again, we are also printing not merely the past year’s results, but the cumulative results since 2000. Leading all judges in total affirmances in 2007, with 37, and only two reversals, Milwaukee County Circuit Court Judge Jeffrey Wagner is the first to top the 100 mark, with 109 affirmances since 2000, and only 10 reversals, a 92 percent affirmance rate.
The accompanying charts (PDF) 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 ultimately reviewed by the Wisconsin Supreme Court in 2007; and how Wisconsin’s federal district court judges fared when reviewed in the U.S. Court of Appeals for the Seventh Circuit.
Of Wisconsin circuit court judges with cases ultimately considered by the Wisconsin Supreme Court, only two judges were reviewed more than once and affirmed each time: Ashland County Circuit Court Judge Robert E. Eaton; and Milwaukee County Circuit Court Judge Clare L. Fiorenza.
In the federal courts, Eastern District Judge Lynn Adelman led federal judges when reviewed in the Seventh Circuit, with 15 affirmances and no reversals. Eastern District Judge William Griesbach, who had led the judges the previous four years, was second highest, with 16 affirmances and only one reversal, a 94 percent affirmance rate.
The methodology for this project is not scientific: 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 eight 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.