A final coda to our analysis of the numbers. First, I have had a few e-mail exchanges with Jessica McBride and she makes an argument that I may have made too many adjustments to her numbers. First, she excluded three cases in which the Court originally granted and then dismissed a petition for review.
Illusory Tenant complains about CFAF doing that. But his suggestion that the dismissal of a petition is a ruling on the merits against the petitioner is wrong as a matter of law. He's assuming that the court wanted the defendant-petitioner to go away because they disagreed with his position on the specific questions of law for which review was granted. Maybe they did. But it is an elemental rule of law that the denial or dismissal of petitions for review are not rulings on the merits. In fact, the per curiam opinion dismissing the petition in Kasmarek says he just didn't address the issue that they granted review on so they couldn't reach it. It is, in this sense, just as if the court had never granted review and, since we are only dealing with cases in which the court afforded plenary review, she actually is reasonable in excluding them.
I included them because I was working off the Butler list of 70.
Incidentally, this illustrates why it makes little sense to look at the "97% of the cases where the court denied a defendant's petition for review. When they deny these petitions, they are making no judgment on the merits. The Wisconsin Supreme Court is not an error correcting court. It takes cases in which it feels the law needs to be clarified or important interests at stake. The overwhelming majority of petitions of all types are denied.
Jessica also excluded a motion for reconsideration in Grady. The Butler campaign wanted to count it twice and that seems wrong. Again, I included it because I was just adjusting the list of 70. In any event, if you count denied motions to reconsider (and they are almost always denied), you'd have to count all of them and that wasn't done.
If you make these corrections to my adjustment of her numbers, we get to roughly 51% or, if you exclude cases in which the state essentially conceded, about 49%
She has reasonable arguments for what she did in the other cases. There is a sense in which the cases that I excluded are ones in which Justice Butler took a more "pro defendant" position than the others; the Mark Jensen case being the prime example. But in order to do include cases in which the defendants' claim was rejected but the Justice Butler's ruling was, in some sense, more "liberal" than that of others, you'd have to read all 70 cases and do that consistently including cases in which the defendant got what he wanted but Butler's ruling was more "conservative" than others. What we are looking at here is whether the defendant got some of what he wanted. There is a sense in which Justice Butler's concurrence would have given something better than the majority but he asked that the exclusion be affirmed and he did not get that.
But more importantly, most of these adjustments don't affect the analysis. Because, as I have shouted into the virtual void, it is the comparisons that are interesting. The excluded denials of review and reconsideration were unanimous. Include them and you will lower Justice Butler's "pro defendant" percentage but you'll lower those of everyone else as well.