Campaign numbers confusion

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Wisconsin Law Journal phones started ringing yesterday as fact-finders began trying to sort out the numbers floating around Judge Michael J. Gableman’s record with the Wisconsin Court of Appeals.

For those of you who have been so focused on Packer playoffs and the future of Brett Favre that you’ve missed it, Gableman is the Burnett County Circuit Court judge challenging Justice Louis B. Butler Jr. Now that Favre has retired, we can spend the next three and one half weeks focused on the state Supreme Court race.

Back to the phone calls.

Earlier this week, the Greater Wisconsin Committee (GWC) began running television ads attacking Gableman for his record on the trial court bench. The ads referred to the Wisconsin Law Journal’s annual review (PDF) of how circuit court judges fared at the Court of Appeals. Using the Jan. 21 article, the ad indicated Gableman was reversed one-third of the time and was in the bottom 25 percent of judges based on reversals.

Gableman’s camp was quick to respond with a collection of figures showing that in the 44 cases appealing his decisions, he was affirmed 23 times, reversed six times and partly affirmed-partly reversed two times. Thirteen appeals were dismissed.

The press release indicated those figures showed a reversal rate of 13 percent for pure reversals and .02 percent if you compare the reversals with the 23,544 cases he has handled since taking the bench in 2002.

Wait a minute – 13 percent versus 33 percent? What’s going on? Who’s telling the truth? Did the Law Journal miss the boat?

No, we didn’t miss the boat. Nor do we need a class in remedial math. Neither is Gableman’s camp creating its own figure, although the pure math would put his reversal rate at 13.63636363… percent, which most mathematicians would round to 14 percent.

The GWC ad fails to note our disclaimer that the cases used for our calculations are only those involving full opinions by the Court of Appeals. Our figures do not include summary decisions by the court, as clearly stated in the article accompanying the chart.

Why don’t we include ALL of the decisions from the Court of Appeals?

Our review of the full opinions from the Court of Appeals is very labor intensive. Those cases are available through the state courts Web site and through Westlaw. However, the summary decisions are not. Pulling together those additional cases for more than 260 judges and reserve judges would make the project unmanageable.

Our statement of methodology also notes that cases where a judge is partially reversed wind up in the reversed column. By our figures looking back to 2003 when Gableman was first reviewed by the Court of Appeals, the court affirmed him 12 times and reversed him five. That means he’s been reversed 29.4 percent of the time based on the cases we reviewed.

When you compare that with the 267 judges featured in this year’s chart, he ranks 182nd. The GWC ad says he’s in the bottom 25 percent when it comes to reversals, it’s really closer to 32 percent.*

We admit that our annual review is not scientific, but we do feel the information is helpful and gives readers a feel for how judges are faring when their cases are reviewed at the appellate level.

Finally, those are not the only phone calls we’ve received related to campaign advertising. Butler has taken it on the chin in ads released by the Coalition for America’s Families. In response (PDF) to the ad, his campaign has referred to our Aug. 20, 2007 review of how justices decided cases during the 2006-07 term.

The article looks at how often justices were in the majority and with whom they were most likely to agree. In a press release, Butler notes that according to our chart he was in the majority 89 percent of the time in criminal cases. That makes him the second most likely to be in the majority after Justice N. Patrick Crooks, who was in the majority 100 percent of the time last term.

Feel free to look at both the Jan. 21, 2008, and the Aug. 20, 2007, articles on our site. When you get done with that, you can go back and watch Favre’s retirement speech.

*UPDATE: This figure was based on a review of all the judges who have been reviewed by the Court of Appeals since we began collecting the data in 2000. The chart in our Jan. 21, 2008 issue only included judges reviewed by the Court of Appeals in 2007. A review of those figures brings us closer to the GWC numbers with Gableman at 28 percent.