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"Incivility," the Marquette University law professor said Feb. 5, 2013, on Wisconsin Public Radio, "has led to reduced productivity; they’re deciding fewer opinions in civil and criminal cases than they used to."
In this context, it's impossible to define incivility, although there have been highly publicized incidents of conflict among the justices. And whether incivility affects the court's productivity is a matter of opinion.
We can, however, test Fallone's claim that the court is deciding fewer cases.
Disorder in the court
Perhaps most Wisconsin voters planning to vote in the Feb. 19, 2013, primary for the Supreme Court (attorney Vince Megna is the third candidate) don’t follow the court’s inner workings. But it was hard to ignore headlines in June 2011 that revealed that Justice Ann Walsh Bradley had accused Justice David Prosser of putting his hands around her neck.
Other witnesses said Bradley came at Prosser with fists raised and he put up his hands to block her or push her back.
The June 2011 confrontation came during a discussion on the day before the high court released a 4-3 decision upholding Gov. Scott Walker's highly controversial bill to curtail the collective bargaining rights of public employees. A special prosecutor investigated the incident and decided not to file any criminal charges.
On Feb. 13, 2013, news surfaced that Bradley had received stepped-up security from law enforcement more than two months before the incident.)
Rancor on the court had already been an issue. In March 2011, it was revealed that 13 months earlier, Prosser called Chief Justice Shirley Abrahamson a "bitch" and threatened to "destroy" her. And in June 2010, the justices deadlocked 3-3 on whether Justice Michael Gableman violated judicial ethics with an attack ad he used in 2008 against his Supreme Court opponent.
Roggensack was elected in April 2003 to a 10-year term on the court. That's an important time element in evaluating Fallone's claim, given that he contends that if he replaced Roggensack, relations among the justices would improve.
State court information officer Tom Sheehan told us the most readily available statistics on opinions issued by the Supreme Court cover six terms -- 2006-2007 through 2011-2012. New terms, for purposes of deciding cases, start each September.
We found that the court has issued an average of 65 opinions in civil and criminal cases per year during that span:
So, in five of the past six terms, which cover the majority of the time Roggensack has served on the Supreme Court, the number of opinions issued has not dropped off but rather stayed within a narrow range.
Indeed, the court issued virtually the same number of civil and criminal case opinions in the term after the Prosser-Bradley incident (2011-2012) as it did in each of the three previous terms.
Fallone told us that attorneys who have appeared before the state Supreme Court believe tensions among the justices rose notably in 2008 during Gableman’s run for the court.
That’s inconsistent with when Fallone said the drop-off in opinions occurred -- following the court’s 2004-2005 and 2005-2006 terms.
But let’s take a look.
Fallone cited a report that indicates that from January through August of 2005 -- in other words, the latter part of the 2004-2005 term -- the Supreme Court issued 129 opinions. (Fallone spokesman Nathan Schwantes said Fallone focused on the January-through-August period because that's when the vast majority of opinions are issued during a term.) Fallone also cited a report that indicates that from January through August of 2006, the latter part of the 2005-2006 term, 98 opinions were issued.
Both figures are considerably higher than the figures we listed above for the six most recent terms. But Fallone is mixing apples and oranges -- and ending up with an overcount.
Sheehan, the state courts spokesman, told us that older reports, such as the two Fallone cited, combine civil and criminal opinions with opinions issued in attorney discipline cases, thus producing a higher total number of opinions. Reports in more recent years, he said, break out tallies for opinions issued in the three types of cases.
Fallone also said his own "hard count" of opinions issued in 2004-2005 and 2005-2006 indicate there were more than 100 opinions issued in civil and criminal cases in each term. But even if he were correct, that would indicate the number of opinions issued dropped off before 2008, which is when Fallone says tensions among the justices spiked upward.
Going back further
Fallone also cited a 2010 article in the magazine of the Wisconsin Public Research Institute, a conservative think tank, which argued that discord among the justices led to reduced productivity. The article said the state Supreme Court was issuing fewer opinions than it had in "decades," but the statistics it cited lumped attorney discipline cases in with civil and criminal cases that were decided by opinion.
We examined annual reports from the court dating to 1992, hoping to gather two decades’ worth of data, but there were two problems. Reports issued before 2006-2007 did not provide separate statistics for opinions issued in civil and criminal cases -- the opinions in attorney discipline cases were included in the totals. Moreover, the tallies were on a calendar-year basis, rather than following the September-through-August Supreme Court terms, like the newer reports do.
Citing incivility on the Supreme Court in the past several years, Fallone said the court's justices are "deciding fewer opinions in civil and criminal cases than they used to."
But he doesn’t provide evidence to establish that. Official figures show the number has been steady in the six most recent Supreme Court terms, which dates to when Fallone suggests that tensions on the court were high.
We rate his statement False.
Email interview, Ed Fallone campaign manager Nathan Schwantes, Feb. 11, 2013
Email interview, Pat Roggensack campaign adviser Brandon Scholz, Feb 12, 2013
Interview and email interview, Wisconsin court information officer Tom Sheehan, Feb. 11 and 15, 2013
Email interview, former Wisconsin Supreme Court justice Janine Geske Feb. 11, 2013
Wisconsin Public Radio, Ed Fallone interview, Feb. 5, 2013
Wisconsin Court System, Supreme Court annual reports, 2007-2008 through 2011-2012
Wisconsin Supreme Court, August 2005 statistical report (page 12 of PDF)
Wisconsin Supreme Court, August 2006 statistical report
Interview, Ed Fallone, Feb. 15, 2013
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