The Continuing Deterioration of Wisconsin’s Judicial System - Part One
Circuit Court Judge Gregory Gill, Jr.’s recent electoral victory for a seat on the Wisconsin Court of Appeals demonstrates why enacting basic court reforms in the state remains an elusive task.
On October 19, 2016, the Wisconsin State Law Library was formally renamed after David Prosser, Jr., a former justice on the Wisconsin Supreme Court. When announcing the planned name change months earlier, then-Wisconsin Supreme Court Chief Justice Patience Roggensack claimed the name change was appropriate “in light of Justice Prosser’s upcoming retirement” on July 31, 2016, “and his many years of service to Wisconsin in all three branches of government.” While some members of the Wisconsin legislature objected to the library’s name change—citing Justice Prosser, Jr.’s checkered record as a state supreme court justice—their concerns were quickly brushed aside, giving way to the creation of the David T. Prosser, Jr., State Law Library.
Four years later, the controversial former state supreme court justice endorsed Outagamie County Circuit Court Judge Gregory Gill, Jr.’s candidacy for the Wisconsin Court of Appeals, characterizing Judge Gill, Jr., as his “friend” and fellow “judicial conservative.” Coupled with public support from most of the state court of appeals judges and a gargantuan campaign chest filled to the brim with contributions from donors with ties to corporate interests, Judge Gill, Jr., was easily victorious in the 2021 spring general election—and will formally take his seat on the state court of appeals in a matter of weeks.
This series of events is a blunt reminder that, much too often, Wisconsin’s judicial system coddles the most privileged in society—such as the affluent and politically connected—while largely ignoring the needs of the citizenry-at-large. Although Wisconsin’s court system is deteriorating in public view, its continued demise is not an inevitability. Rather, its current stagnation results from the collective (but not predestined) actions of many individuals: such as voters and journalists—and, of course, judicial candidates themselves.
When I was a fifth-grade student, an April 2001 report conducted by the National Center for State Courts analyzed the Wisconsin Supreme Court’s workflow. Noting that Wisconsin was one of only a few states with a two-tier appellate court system that still did not permit its justices to hire more than one judicial law clerk per court term, the report recommended that Wisconsin Supreme Court justices be permitted to hire two judicial law clerks per term. Although nearly 20 years have passed by since the report was completed, the report’s recommendations have not been adopted in Wisconsin.
As one can imagine, after nearly 20 years of inaction, the Wisconsin Supreme Court’s lack of adequate staffing is having a negative impact on Wisconsin’s judicial system. For example, the Wisconsin Supreme Court issued 41 decisions during the 2015-16 court term—less than half the number of cases it would typically decide in a court term just a decade ago. In contrast, it appears that the Minnesota Supreme Court—which typically hires 10 judicial law clerks per court term for its seven justices—has consistently decided more cases per court term than the Wisconsin Supreme Court since 2005, and often decides more than 100 cases in a court term.
Additionally, among the highest appellate courts in Wisconsin’s four neighboring states over the past five years, except for the Michigan Supreme Court, the Wisconsin Supreme Court on average has consistently produced the least amount of court decisions per court term. Alan Ball, a history professor at Marquette University, documents this trend in a series of posts on SCOWstats, a blog providing “numerical analysis of the voting by Wisconsin Supreme Court justices.” While Professor Ball does not specifically analyze whether a lack of support staff at the Wisconsin Supreme Court has contributed to its reduced output of court decisions since 2005, the statistics compiled by Professor Ball suggest the Wisconsin Supreme Court’s recent low output of court decisions (relative to its neighboring state supreme courts) is exacerbated by two factors that differentiate the Wisconsin Supreme Court from its neighboring state supreme courts: (1) a high percentage of the Wisconsin Supreme Court’s decisions evincing polarized voting among the justices—which Professor Ball characterizes as “contentious” decisions; and (2) the long length of the Wisconsin Supreme Court’s decisions—including the justices’ concurring and dissenting opinions.
In other words, with increased polarization among the justices on the Wisconsin Supreme Court generally leading to longer court decisions, the Wisconsin Supreme Court appears to have reduced its output of decisions to compensate for the lack of adequate support staff to assist the justices with drafting and preparing those “contentious” decisions.
However, the inadequate staffing at the Wisconsin Supreme Court is not only negatively affecting the number of decisions it issues per court term. It also appears to be negatively affecting the quality of those dwindling decisions. Whether addressing complex constitutional issues or restating well-established legal doctrines, the caliber of the court’s decisions is on a downward spiral. The following two examples are instructive.
First, when the Wisconsin Supreme Court decided State v. Imani in 2010, the court egregiously misapplied clearly established federal law governing a defendant’s constitutional right to self-representation in a criminal prosecution. As a result, nearly six years later in Imani v. Pollard, the United States Court of Appeals for the Seventh Circuit granted Rashaad Imani’s petition for a writ of habeas corpus—which are granted in less than one percent of noncapital habeas cases filed in federal court—holding that the Wisconsin Supreme Court’s conclusion that the trial court did not violate Imani’s constitutional right to self-representation “was contrary to and an unreasonable application of clearly established federal law.” While not discussed by the Seventh Circuit in Imani, the Wisconsin Supreme Court contravened the long-standing judicial norm in Wisconsin (and most—if not all—other jurisdictions within the United States) that cases should generally be decided on the narrowest legal grounds possible when it addressed a broader legal issue than the one raised by the two parties to the appeal. Furthermore, the Wisconsin Supreme Court flagrantly flouted Imani’s constitutional right to procedural due process when it failed to provide him with adequate notice of the legal issue to be decided by the court.
Second, when reviewing the discretionary determination of a lower court, Wisconsin appellate courts review the lower court’s determination under an “erroneous exercise of discretion” standard—which, in 1992, replaced the previous “abuse of discretion” standard. In making this vernacular change, the Wisconsin Supreme Court reasoned that that latter phrase harbored “unjustified negative connotations.” Over the decades since then, the Wisconsin Court of Appeals has repeatedly admonished parties who nonetheless have inappropriately referred to an “abuse of discretion” standard in their appellate briefs. However, when Misha Tseytlin—both a former judicial law clerk for United States Supreme Court Justice Anthony Kennedy and solicitor general of Wisconsin, and current law partner at Troutman Pepper—inappropriately used the antiquated phrase “abuse of discretion” in both of his appellate briefs filed with the Wisconsin Supreme Court when representing the Wisconsin legislature regarding the constitutionality of the legislature’s December 2018 “extraordinary session,” the Wisconsin Supreme Court failed to admonish Attorney Tseytlin in either its order granting the legislature’s motion for temporary relief pending appeal or its later decision vacating the Dane County Circuit Court’s temporary restraining order against the legislature. Then again, in a decision decided just a year ago, the Wisconsin Supreme Court inexplicably (and repeatedly) used the phrase “abuse of discretion”—ostensibly forgetting about the phrase’s purported “negative connotations.”
Some may consider the Wisconsin Supreme Court’s recent failure in a single decision to appropriately use the phrase “erroneous exercise of discretion” as a relatively minor blight—especially since the phrase is synonymous with the previous “abuse of discretion” terminology used by Wisconsin state courts, and which is still largely used by both courts and litigants in the federal court system today. But this “minor” mistake goes to show that the state supreme court is now unable to accomplish some of the most fundamental tasks associated with drafting judicial decisions, such as being consistent in using legal terminology that itself mandated be utilized by the court nearly 30 years ago. As Lincoln Caplan aptly wrote in the New Yorker, the Wisconsin Supreme Court has transformed “from one of the nation’s most respected state tribunals into a disgraceful mess.”
Like the Wisconsin Supreme Court, the Wisconsin Court of Appeals has also been woefully understaffed for decades. When I was sixth-grade student, an October 2001 report conducted by the National Center for State Courts analyzed the Wisconsin Court of Appeals’ caseflow. The report ultimately recommended the Wisconsin Court of Appeals hire more staff attorneys and law clerks to help manage its increasing caseload. Furthermore, with regard to the Wisconsin Court of Appeals—District Three, the report implicitly recommended the addition of a new judgeship.
But once again, in the intervening decades the report’s recommendations have still not been implemented in Wisconsin. It is no surprise, then, that after nearly 20 years since the report was finalized, the lack of adequate staffing at the Wisconsin Court of Appeals is also having adverse consequences on Wisconsin’s judicial system.
When the Wisconsin Court of Appeals was first created as a state intermediate appellate court in the late 1970s to assist the Wisconsin Supreme Court with its increasing appellate caseload, the state court of appeals had a manageable caseload. However, two and a half decades later—and less than two years since the report analyzing the caseflow of the state court of appeals had been completed—it was now inundated with an excessive caseload. As Attorney Colleen Ball described in a 2003 Wisconsin Lawyer magazine article commemorating the 25th anniversary of the state court of appeals’ creation, “it takes about two years for an appeal to make it from the trial court through the supreme court (if accepted for review)” and state court of appeals “judges write, on average, close to 100 decisions per year.” According to Attorney Ball, the Wisconsin Supreme Court itself had experienced similar problems related to its appellate caseload prior to the creation of the Wisconsin Court of Appeals.
The inadequate staffing at the Wisconsin Court of Appeals—just like at the Wisconsin Supreme Court—appears to be taking an inexorable toll on its judicial capacity. For instance, over the last two and half decades the Wisconsin Court of Appeals has drastically reduced the number of court “opinions” (which do not include “summary dispositions” or other similar terminations) it issues per court term. Meanwhile, there has been a large increase in the percentage of those court “opinions” now being classified as per curiam decisions—meaning decisions that do not involve “new or unsettled [legal] questions of general importance” and therefore are permitted to contain “only the reasons for the decision[,] with a minimal analysis of the reasoning.” Not surprisingly, then, the state court of appeals has also had a precipitous decline in the number of “published” decisions it issues per court term, which “have statewide precedential effect.”
Even as the whole Wisconsin Court of Appeals continues to struggle with managing its excessive caseload, the Wisconsin Court of Appeals—District Three currently appears to be experiencing unique struggles. For example, Wisconsin law authorizes each state court of appeals judge to hire both a judicial law clerk and a judicial assistant to assist the judge with performing his or her duties. And most of the state court of appeals judges in Wisconsin follow this basic structure. However, for some time now, the Wisconsin Court of Appeals—District Three has shared two judicial assistants among its three judges. Instead of utilizing a third judicial assistant, the Wisconsin Court of Appeals—District Three uses a fourth judicial law clerk, who assists all three judges with drafting and preparing judicial decisions. And more recently, the Wisconsin Court of Appeals—District Three has hired yet another judicial law clerk (for a total of five judicial law clerks). Although, this particular position appears to be temporary—meant to assist a judge who is retiring from the state court of appeals in a matter of months.
Nonetheless, it’s just another example of the elephant in the room that too many in Wisconsin’s legal community choose not to concretely address: the significant need for more staffing and judicial resources in Wisconsin’s appellate court system.
After Patience Roggensack became chief justice of the Wisconsin Supreme Court in April 2015, she repeatedly used her annual State of the Judiciary Address to advocate for an increase in the salary of Wisconsin justices and judges, arguing that inadequate judicial compensation was a major impediment “to attract and to retain highly skilled and knowledgeable judges.” Then-Chief Justice Roggensack’s advocacy was partially successful, resulting in a modest increase in judicial compensation for Wisconsin justices and judges—but far below what she had requested from the Wisconsin legislature. Significantly, though, not a single one of Chief Justice Roggensack’s State of the Judiciary speeches requested assistance from the legislature to remedy—let alone acknowledged—the significant lack of support staff and judicial resources in Wisconsin’s court system.
While Chief Justice Roggensack never formally addressed the Wisconsin judicial system’s significant understaffing of support staff in her six years as chief justice, she did find time for what she personally deemed important. Besides advocating for increased compensation for her judicial colleagues during her tenure as chief justice, she had ample time during the summer months over a four-year period to hire “a privately paid statistician” to study “whether race affected judicial sentencing in Wisconsin.”
According to Chief Justice Roggensack, she undertook this research effort in response to media reports suggesting Wisconsin courts were racially biased in criminal cases. Of course, when the study ultimately failed to reach any particular conclusions, Chief Justice Roggensack had no qualms about publishing the study’s results in a 2016 Marquette Lawyer magazine article. However, when a later study completed in January 2020 by Michael Thompson, then-head of the Office of Research and Justice Statistics for the Wisconsin court system, “found clear racial disparities in the sentencing of felons by Wisconsin courts,” it only became public in February 2021 because of diligent investigative reporting done by the Milwaukee Journal Sentinel.
When reached for comment about Thompson’s study, Chief Justice Roggensack had nothing to say to the Milwaukee Journal Sentinel on the matter—even though just months earlier in an email to Wisconsin’s circuit court judges, she had written that Thompson’s research had proved she was right to have the “utmost confidence” in Wisconsin’s judiciary regarding racial bias in criminal cases. According to Thompson’s LinkedIn page, he left his position with the Wisconsin court system the same month the study’s findings were disclosed to the public. Furthermore, Chief Justice Roggensack did not explain why the report’s unfavorable findings had not been released to the public prior to the Milwaukee Journal Sentinel’s request for Thompson’s research.
Then again, this is the same person who spearheaded the effort to rename the Wisconsin State Law Library after David Prosser, Jr., a former justice on the Wisconsin Supreme Court. Chief Justice Roggensack apparently thought this memorial would communicate a positive message to the public about the values Wisconsin lawyers, including judicial officials, bring to a pluralistic society. However, with the state law library’s name change, the public may have received a slightly different message than the one she originally intended to send them.
On February 10, 2010, then-Wisconsin Supreme Court Justice David Prosser, Jr., called then-Wisconsin Supreme Court Chief Justice Shirley Abrahamson “a total bitch” in front of their judicial colleagues. When asked about the incident, he did not deny that it had happened. Instead, Justice Prosser, Jr., defended his use of the misogynistic term against Chief Justice Abrahamson, who during her judicial career was “widely regarded as one of the country’s finest legal minds and legal scholars.” (Disclosure: I served as a legal intern for Chief Justice Abrahamson during my third year of law school.)
Justice Prosser, Jr., argued that his word choice was “entirely warranted” in the context of Chief Justice Abrahamson purportedly trying to undermine him politically and embarrass him. Appearing on Fox News less than a month later, he doubled down on his defense of the words he hurled against Chief Justice Abrahamson. While acknowledging that his conduct “was not good behavior on [his] part,” Justice Prosser, Jr., then paradoxically went on to shift blame to Chief Justice Abrahamson for his use of misogynistic language against her, arguing that “this was not all [his] fault” because “there was some provocation” by Chief Justice Abrahamson.
Then more than a year later, there was the infamous incident where Justice Prosser, Jr., went to Justice Ann Walsh Bradley’s judicial chambers and placed his hands on her neck. Witnesses to the incident vary in their characterization of exactly what happened. However, they all appear to agree to the following basic facts regarding the incident: (1) Justice Ann Walsh Bradley was in her own chambers after normal business hours, reviewing a draft court opinion with Chief Justice Abrahamson; (2) four other justices (including Justice Prosser, Jr.) went to Justice Ann Walsh Bradley’s chambers uninvited; (3) Justice Ann Walsh Bradley told Justice Prosser, Jr., at some point to leave her chambers; and (4) Justice Prosser, Jr., placed his hands on Justice Ann Walsh Bradley’s neck, which she later characterized as a “choke hold.”
If the four justices who went to Justice Ann Wash Bradley’s chambers uninvited that evening had simply followed conventional norms regarding communication with judicial colleagues—such as using their judicial law clerks as intermediaries or, if outside normal business hours, sending emails themselves, to send messages to their judicial colleagues—the incident could have been avoided altogether. Instead, the Wisconsin Judicial Commission ended up filing a formal complaint against Justice Prosser, Jr., based on his misogynistic conduct against both Chief Justice Abrahamson and Justice Ann Walsh Bradley, finding there was probable cause that he violated three Wisconsin Supreme Court rules governing the conduct of Wisconsin judges. While Justice Prosser, Jr., mischaracterized the allegations contained in the complaint against him as “partisan, unreasonable, and largely untrue,” the Milwaukee Journal Sentinel reported that the case ultimately fizzled because “most of the justices said they could not participate in the case because they had witnessed the incident.”
But Justice Prosser, Jr., wasn’t finished flouting basic rules governing the conduct of Wisconsin judges. For instance, months after hearing oral arguments in State v. Griep, Justice Prosser, Jr., apparently contacted the Wisconsin State Laboratory of Hygiene in February 2015, asking pointed questions about a specific lab analyst it employed—a likely violation of Wisconsin Supreme Court Rule 60.04(1)(g), which generally proscribes a judge from communicating with others, including parties and witnesses, concerning a pending proceeding before the judge. Only when his contact with the state laboratory was disclosed to the public did Justice Prosser, Jr., formally withdraw from the case.
In the end, Justice Prosser, Jr., was never reprimanded for any of his abhorrent conduct as a state supreme court justice. Instead, he was rewarded with the Wisconsin State Law Library adorning his name. And while some may hope that the failure of Wisconsin’s judicial system to hold Justice Prosser, Jr., accountable for his actions is an embarrassing aberration, it is not. Rather, it exemplifies how Wisconsin’s judicial system is currently dominated by monied interests—which largely inoculates its judges (along with the wealthy and politically powerful in the state) from experiencing any negative consequences for their questionable conduct.
I totally agree. Judge Eric Lundell of Hudson Wisconsin was picked up drunk ,left a accident site,was under sexual misconduct investigation which led to him getting a sweetheart deal of take retirement and no prosecution. Makes me sick.
When it comes to judicial elections, I really don't want to vote for the "liberal" candidate any more than I want to vote for the "conservative" candidate (nor the one with Democratic funding nor the one with Republican funding). I want candidates well versed in the law who are NOT on record that X precedent must up upheld no matter what, or Y precedent must be over-ruled. I want judicial candidates who can honestly say they are going to read the briefs, listen to the oral arguments, and then decide each case on the merits. Brian Haggedorn probably won because his opponent went to far out on a limb chattering about how anti-gay he allegedly was. That's not a fit argument for a judicial election. The constitution is not pro- or anti- anyone's political agenda. In an adversary system, the contending parties want what they want, but the job of appellate judges is to examine if there is any constitutional basis to rule in their favor. And then there was the recent Milwaukee County judicial election between the Scott Walker carpetbagger, the LGBTQ carpetbagger, both of whom should have been disqualified, and the mild-mannered candidate who got squeezed out in the primary who might have been a really good judge.