By David Ziemer
Wisconsin Law Journal
The popular perception of the Wisconsin Supreme Court is that of a court deeply divided on personal grounds, with Chief Justice Shirley S. Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks in the minority.
But when it comes to actually deciding cases, particularly criminal cases, it is more accurate to say the court is divided 5-2, with only Abrahamson and Bradley in the minority.
Both justices dissented in more than 30 percent of cases in the 2009-2010 term, with Abrahamson dissenting the most (37 percent) and Bradley dissenting second most (34 percent).
In contrast, the other five justices on the court were all in the majority in at least 86 percent of cases. For the second term in a row, Justice Annette Kingsland Ziegler was in the majority most often. She was in the majority in 91 percent of cases.
Second most often in the majority were Justices Crooks and Patience Drake Roggensack, at 88 percent. Justices Michael J. Gableman and David T. Prosser were both in the majority in 86 percent of cases.
In criminal cases, the results were even more stark, with Abrahamson and Bradley in the majority in only 54 percent of cases. No other justice was in the majority in less than 80 percent of cases.
However, in cases that did divide the court by a 4-3 vote, Abrahamson, Bradley, and Crooks were the three most likely to comprise the dissenters. Of 10 such cases this term, the three were in the minority in six.
Just two terms ago, the court decided 14 cases by a 4-3 vote, and Justice Crooks was in the majority in every one.
In addition to being most often in dissent, Abrahamson and Bradley were the justices most likely to concur with each other, concurring in 95 percent of cases, down only slightly from their 98 percent rate of concurrence in the 2008-09 term.
The justices second most likely to concur were Ziegler and Roggensack, who concurred in 93 percent of cases (in 2008-09, they concurred 94 percent of the time).
Concurring least often were Abrahamson and Gableman, in 53 percent of cases. The two concurred in only four cases that were not unanimously decided by the court.
As noted, both Abrahamson and Bradley were in the majority in only 54 percent of criminal cases. This is a stark drop from the previous term, in which Bradley was in the majority in 79 percent, and Abrahamson in 81. Even in that term, however, the two were least often in the majority.
Most often in the majority in criminal cases was Ziegler, in 96 percent of cases. Crooks and Gableman were both in the majority in 92 percent of cases, followed by Roggensack, 88 percent, and Prosser, 80 percent.
The respective combinations of Bradley and Abrahamson, and Roggensack and Gableman, were most likely to concur, which they did in 96 percent of cases.
Concurring least often were Abrahamson and Roggensack, in 42 percent of cases. In the 17 criminal cases that did not result in a unanimous decision, the pair were both in the majority only twice.
Torts and Insurance
For the second term in a row, Prosser did not dissent in a single case involving torts and insurance issues. In all eight cases, he was in the majority. Crooks dissented in only one of the cases, and the rest of the justices dissented in only two.
Two combinations of justices concurred in all eight of the torts and insurance cases: Abrahamson and Bradley; and Roggensack, Ziegler and Gableman.
Observations on the Term
Representatives of both the plaintiffs’ bar and the civil defense bar found things to praise in the recently completed term.
Ruth Simpson, Research Director for the Wisconsin Association of Justice, noted that, in seven of the eight cases in which WAJ submitted amicus curiae briefs, the WAJ position prevailed.
But the defense bar had its victories, too.
Catherine Rottier, President of Wisconsin Defense Counsel, and an attorney with Boardman, Suhr, Curry & Field, LLC, in Madison, particularly praised the opinion in Miller v. The Hanover Ins. Co., 2010 WI 75 (July 13, 2010).
In Miller, the court vacated a $2 million default judgment entered for failure to file an answer. The defense bar has long complained that Wisconsin’s rules governing default judgment are draconian compared to other jurisdictions, particularly when compared to its lenient rules governing failure to answer requests for admissions and discovery abuse.
“The justices all agreed that the $2 million verdict for failure to answer, when there was no underlying liability, was a huge sanction, beyond the pale for a clerical error,” Rottier said.
The criminal defense bar, on the other hand, was not so pleased with the term. Hank Schultz, president of Wisconsin Academy of Criminal Defense Lawyers, and a public defender in Rhinelander, said he was very concerned about the Fourth Amendment cases, particularly a trio of cases released the same day, involving warrantless searches of homes.
In each, the officers knocked and announced their presence. In one, the suspect answered the door (State v. Artic); in another, no one responded (State v. Pinkard); and in the third, the suspect refused to answer the door (State v. Robinson). In each, the court held the ensuing search lawful.
“The sanctity of the home and the exclusionary rule took a big hit,” Schultz said. “The court also held that the exclusionary rule does not apply in other situations. It was a bad term for the Constitution.”
David Ziemer can be reached at email@example.com.