How Effective are Fourth-Amendment Arguments in the Wisconsin Supreme Court?

In Custodian of Records v. State (2004), the Wisconsin Supreme Court cautioned that the “power wielded by the government is considerable,” creating “a potential for infringing on Fourth Amendment and other constitutional rights.”  This was not a perfunctory observation buried in an analysis of other issues.  It followed a six-page discussion under the heading “Fourth Amendment principles,” crafted to support the decision’s conclusion that the State’s quest for evidence of criminal activity was “unreasonable” in the case at bar.  Not only that, the majority opinion saw fit to marshal its Fourth-Amendment arguments despite the fact that neither of the contending parties even mentioned the amendment in their briefs.

Were this not enough to encourage nascent criminal-defense lawyers to feature Fourth-Amendment arguments wherever possible, any remaining doubt might have crumbled upon learning the identity of the decision’s author—Justice Roggensack, one of the court’s most conservative members.  If even she saw fit to rely so heavily on the Fourth Amendment to shield citizens from an aggressive search by the state, surely the court would approve Fourth Amendment protections in other cases as well.  And yet, a perusal of the court’s decisions over the past nineteen terms (1995-96 through 2013-14)[1] suggests that few arguments have less chance of success than appeals invoking the Fourth Amendment.

During this 19-term period, the court heard 81 cases in which the Fourth Amendment generated at least one of the issues presented, and in only 10% of these cases did the court rule favorably on the defendants’ Fourth-Amendment arguments.  In the most recent six terms (2008-9 through 2013-14), during which the court’s current members have all served together, this figure dropped to 7% (2 “favorable” rulings out of a total of 30 Fourth-Amendment cases).  As one might expect, Fourth-Amendment appeals fared better during the four terms in which Justice Butler joined the court (2004-5 through 2007-8), but even here the “success” rate was only 17% (2 out of 12 cases)—and over the preceding 9 terms (1995-96 through 2003-4) it was only 10% (4 out of 39 cases).

To appreciate how low these percentages are, consider the “success” rates in criminal cases of all types (Fourth-Amendment and all other criminal cases taken together).  Over our 19-term period, the court heard 449 criminal cases, of which 25% (114 cases) resulted in decisions favorable to the defendants—fully two and a half times the 10% “favorable” rate for Fourth Amendment arguments alone.  Of the 120 criminal cases heard during the six most recent terms, 13% (16 cases) yielded decisions that favored defendants—nearly twice the 7% rate of “favorable” outcomes for Fourth-Amendment appeals over the same period.  This information appears in Table 1, along with comparable figures for the “Butler years” and the preceding 9 terms, all of which suggest that cases relying on Fourth-Amendment arguments faced a considerably stiffer challenge than criminal cases generally.[2]

Table 1

Terms % of all criminal cases resulting in favorable rulings for defendants % of Fourth-Amendment cases resulting in favorable rulings
2008-9 through 2013-14 13% (16/120) 7% (2/30)
2004-5 through 2007-8 28% (21/75) 17% (2/12)
1995-96 through 2003-4 30% (77/254) 10% (4/39)
Total for all 19 terms 25% (114/449) 10% (8/81)

Just as dramatic is the difference in voting tendencies among individual justices.  For instance, Table 2 indicates that Justices Abrahamson, Butler, and Bradley accepted Fourth-Amendment arguments in over 60% of their votes.  The fact that only 17% of Fourth-Amendment decisions favored defendants during Justice Butler’s tenure demonstrates how wide the gulf was between these three justices and the other members of the court on this issue.

Regarding the current justices, it is interesting to note that Justice Prosser, often labeled a conservative, voted in favor of Fourth-Amendment arguments at two and a half times the rate of Justice Crooks, more commonly characterized as a “swing vote” than a conservative in the press.  Finally, the gap between Justices Abrahamson and Bradley on the one hand (accepting 72% and 63% of Fourth-Amendment arguments, respectively) and Justices Ziegler (6%), Gableman (3%), and Roggensack (2%) is enormous.  I do not recall any other issue in previous SCOWstats posts where the difference in voting rates between current “liberal” and “conservative” justices has been so stark.

Table 2[3]

Justices % of cases in which individual justices favored the Fourth Amendment arguments presented by defendants (1995-96 through 2013-14)
Abrahamson 72% (58/81)
Butler 67% (8/12)
Bradley 63% (50/80)
Bablitch 33% (12/36)
Geske 20% (2/10)
Prosser 18% (12/68)
Sykes   8% (2/25)
Steinmetz   8% (1/13)
Crooks   7% (5/76)
Ziegler   6% (2/35)
Wilcox   4% (2/46)
Gableman   3% (1/30)
Roggensack   2% (1/44)

Given a judicial climate so inhospitable to Fourth-Amendment arguments,[4] how should one explain the court’s hearty endorsement of Fourth-Amendment protection in Custodian of Records v. State, where neither party addressed the amendment at all?  This seems to have puzzled Justice Abrahamson, who wondered if “[m]aybe something was in the air, or water …”[5]

In this instance, perhaps one could seek an answer in the nature of the people threatened by the State’s demands.  They were not accused of possessing heroin or child pornography.  Instead they were unnamed Wisconsin State legislators, suspected by the Dane County District Attorney of illegal activity in connection with the political caucuses of that period.  Hence the John Doe subpoena for a sweeping array of legislative communications, which the court found overly broad and thus an unreasonable search under the Fourth Amendment.  (Justice Abrahamson, by the way, agreed that the subpoena was too broad but maintained that this conclusion could, and should, have been reached from the arguments briefed by the parties.)

There may well be additional explanations for such an ardent embrace of the Fourth Amendment by a majority of justices normally disinclined to apply it, and I would be grateful for any conjectures that readers can offer.

[1] The decisions may be found on the Wisconsin Court System website.

[2] The category “all criminal cases” encompasses all cases whose numbers end with the CR suffix, except for those resulting in per curiam decisions or (in five instances) decisions that were difficult to regard as either favorable or unfavorable for the defendants.  Also, it should be noted that four of the Fourth-Amendment cases do not have CR suffixes and thus would not be included in the “all criminal cases” calculations.  However, their number is so small that their absence from the “all criminal cases” category has virtually no effect on the percentages in Table 1.

[3] On rare occasions, a justice would accept a Fourth-Amendment argument but affirm a defendant’s conviction for other reasons.  In State v. Subdiaz-Osorio, for instance, Justice Bradley concluded that, in the context of the Fourth Amendment, the warrantless search conducted in the case should not have been regarded by the circuit court as justified.  Thus I categorized her opinion as favoring a Fourth Amendment argument—even though she concluded that the circuit court’s error did not contribute to the defendant’s conviction.

Custodian of Records v. State is not included in these calculations, because neither of the parties argued or briefed the Fourth Amendment.

Justice Day is not included in the table because the data cover only his last term (1995-96) on the bench.

[4] It would be interesting to know if Fourth-Amendment arguments have fared differently in Wisconsin’s lower courts, despite their chilly reception in the Supreme Court.

[5] Custodian of Records for the Legislative Technology Services Bureau v. State (In re Doe), 2004 WI 149, ¶5 (order denying reconsideration) (Abrahamson, C.J., dissenting).

Swelling Supreme Court Decisions, 1995-96 through 2013-14

Commenting last month in the New York Times, Adam Liptak noted that decisions issued by the United States Supreme Court have grown substantially longer over the years, prompting him to choose such terms as “sprawling” and “metastasizing” to characterize the fruit of the justices’ labors.

Had Liptak turned his attention to Wisconsin’s Supreme Court, he would doubtless have offered a similar assessment, because decisions issued by the justices in Madison now require an average of approximately 50 pages to convey their analysis.  Just as striking as the length of these decisions is the pace at which they have grown.  As recently as 1995-96 and 1996-97, Supreme Court decisions in Wisconsin averaged 23 pages.  Thereafter, their length increased steadily until the average had more than doubled by 2007-08—and the following years continued to yield decisions approximately 100 percent longer than those of the mid-1990s.

Averages for each of the 19 terms currently covered by the SCOWstats database are presented in Table 1, and they may also be viewed as a graph.

Table 1    Average Number of Pages per Decision[1]

Term Page Length
2013-14 49
2012-13 53
2011-12 44
2010-11 46
2009-10 50
2008-09 44
2007-08 52
2006-07 44
2005-06 42
2004-05 44
2003-04 40
2002-03 38
2001-02 33
2000-01 36
1999-00 33
1998-99 30
1997-98 31
1996-97 23
1995-96 23

One factor at work here is the increasing number of concurring and dissenting opinions, which have added to decisions’ bulk.  Tables 2a and 2b reveal that concurrences and dissents accounted for only 3 pages per decision during the earliest term of our period (1995-96), but by 2013-14 the figure had ballooned to 17 pages per decision.  This increase of 467 percent is remarkable, but it accounts for only about half the number of pages by which decisions have grown.  The same tables demonstrate that majority opinions also swelled substantially during these years—from an average of 19 pages in 1995-96 (and 17 pages in 1996-97) to 30 pages in 2013-14 (and 34 pages in 2012-13).

Table 2a                     Average Number of Pages per Decision

  Majority opinion pages Concurring and dissenting opinion pages
1997-98 (72 decisions)           23           5
1996-97 (82 decisions)           17           4
1995-96 (75 decisions)           19           3
Weighted average for all three terms           20           4


Table 2b                     Average Number of Pages per Decision

  Majority opinion pages Concurring and dissenting opinion pages
2013-14 (61 decisions)           30           17
2012-13 (44 decisions)           34           17
2011-12 (59 decisions)           31           11
Weighted average for all three terms           31           15


As one might expect, the average length of majority opinions varies considerably among the justices.  In 2012-13, for instance, majority opinions authored by Justice Prosser averaged 46 pages—77 percent longer than Justice Crooks’s average of 26 pages.  During the following term, the average length of Justice Ziegler’s majority opinions exceeded those of Justice Bradley by 50 percent.  Comparisons between any pair of justices over the three most recent terms are available in Table 3.

Table 3                   Average Length of Majority Opinions Written by Each Justice

Justice 2011-12 2012-13 2013-14
Abrahamson 38 pages 40 pages 29 pages
Bradley 27 pages 26 pages 22 pages
Crooks 29 pages 26 pages 27 pages
Prosser 32 pages 46 pages 36 pages
Roggensack 27 pages 34 pages 29 pages
Ziegler 30 pages 32 pages 33 pages
Gableman 36 pages 34 pages 32 pages

Table 4, which covers the earliest years of our period, may be compared to Table 3 as a means of illustrating the rapid increase in the size of opinions over 19 terms.  This information also allows us to focus on three justices (Abrahamson, Bradley, and Crooks) who have served long enough on the court to appear in both tables.   Computing weighted averages for the three terms covered in each table, we find that Justice Abrahamson’s majority opinions averaged 19 pages during the period 1995-96 through 1997-98 and 35 pages during the period 2011-12 through 2013-14—an increase of 84 percent.  Justice Bradley’s majority opinions grew by 39 percent (18 pages to 25 pages), while Justice Crooks recorded an increase of 29 percent (21 pages to 27 pages).

Table 4                    Average Length of Majority Opinions Written by Each Justice

Justice 1995-96 1996-97 1997-98
Abrahamson 22 pages 18 pages 16 pages
Bradley 18 pages 16 pages 20 pages
Wilcox 21 pages 15 pages 27 pages
Bablitch 17 pages 13 pages 21 pages
Steinmetz 13 pages 13 pages 28 pages
Geske 21 pages 26 pages 25 pages
Day 19 pages  —  —
Crooks 19 pages 23 pages

Disputes will persist as to whether the court’s decisions should be described as bloated or comprehensive, but there can be no doubt that recent opinions are much longer than those drafted little more than a decade ago.  Less clear is whether this trend will persist in view of the court’s new rules designed to reduce the time between oral argument and the filing of decisions.  A reasonable hypothesis could surmise that shortening the gestation period of decisions will also affect their birth weight, although the current turmoil on the court complicates predictions on this score.  However, with the conclusion of the 2014-15 term close at hand, we will soon be able to replace conjecture with certainty.


[1] The figures include title pages, majority opinions, concurrences, and dissents.

[2] The weighted average for Justice Crooks covered only two terms in Table 4, because he did not join the court until the 1996-97 term.  Weighted averages are used because the number of opinions written by the justices varied slightly from term to term.

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