| appellate court judge means that he has to subordinate his person views and opinions to the rules of law. "I'm unabashed about that. I'm not going to even hide that," Higginbotham said about his progressive values. "Everyone knows that about me. But as a judge, I'm a moderate because I believe in a degree of judicial restraint and the evolution of the law. It is far better to take tinier steps in those instances because you have no idea of what other possible scenario is going to come down the pike. Rather than painting with a broad brush, it's very important to tend to the details. And that is what we do. Ive been a judge, even more to my surprise, who has been a pretty strict statutory constructionist. And it's resulted in some decisions that I had to hold my nose at. But because I believe our role is to interpret the statute as it is written, if it is clear and unambiguous, that's the law. I';m not a legislator. I didn't run for the legislature. I ran to be judge. I try to tell you what the law is. And if it's written clearly, then guess what? If I like it or not, that is how it is." "I think your perspective has to change once you get on the bench," Higginbotham continued. "If you are doing it right, it has to. Even going from the trial bench to the Court of Appeals is really a different thing. When you're on the trial bench, you're principally concerned about the facts. Of course, you apply the law. But your decisions are not so much driven by how the law should be. You're more interested in looking at what the law is and then applying that to the facts. When you are on the Court of Appeals or even the Supreme Court, the concern is what the standard of review is. Were there particular standards that we have to apply that I consider like a lens that we have to look at when looking at a circuit court decision or an administrative agency decision. When you are dealing with the standard of review, you can't just say 'I think it should be this way.' The standard review is a review of a judge's proper exercise of discretion. We can't just change their fact finding. If it's a legal determination, it's our call. Always! We have to work within these confines that are well established. I'm not going to be the person to upset that cart because it's been pretty effective and that's what I'm playing with." The Court of Appeals is a "workhorse" court. It must consider and make some kind of decision on every case that is appealed to it. It cannot refuse cases like the Wisconsin Supreme Court can. "I can say with a clear conscience that the people of Wisconsin are getting their money's worth out of these judges," Higginbotham emphasized. "They're doing the work and they are trying to make sure that it is the best decision. Each judge is responsible for reviewing a total of 21 cases at the beginning of each month, not considering the fast tracks and other cases that come to us. Each month, we review 105 cases. We have to read all of these briefs and then read about 21 different cases and then talk about them. One file alone can be 500 pages. That's not true of all of them of course. But when you're done with 21 files, you have read thousands of pages. And we get this done in a matter of days. And then we talk about them. We are in session 12 months per year. We have approximately 1,400 cases per year. We have a pretty heavy duty caseload. Right now, we do have some backlog. We write maybe 500 opinions in a year. With 500 opinions per district, that's 2,000 opinions coming out of the appellate courts per year. It's a lot of writing." "What actually become judge-authored is actually less than 100," Higginbotham continued. "We have staff attorneys who do the per curiam -- Latin for 'by the court' drafts. We have summary opinions where it is clear that 'one plus one equals two.' There';s nothing to discuss really. I think I participated in six oral arguments last year. We rarely hear a case unlike the Supreme Court that holds many more oral arguments. This is because our reviewing system is a little different. We make an overwhelming number of our decisions without seeing anyone." What makes the court's work more tedious, Higginbotham complained, is the state of the briefs that the judges receive when lawyers are filing their appeals. A majority of the briefs that we get are not well written," Higginbotham said. "And that's disserving. It doesn't matter if it is a high-end law firm or a pro se defendant; a lot of the briefs we get are just not written well. That makes our job harder. I'm sure it doesn't get any better for the Supreme Court. That was the biggest disappointment in taking this job. It reflects the clarity of the thinking, the coherency of the writing, the identification of the issues, and the legal analysis. Sometimes we don't know what the appeal is based on until we've read through the entire brief. Sometimes they apply the wrong law or they are making arguments before the trial court and so they waived the argument. It's interesting." The appellate court is not a trial court and so, it doesn't gather facts from witnesses and other pieces of evidence. It works with what it gets from the lower courts and the briefs that the lawyers file. "Technically, we are an error correcting court," Higginbotham said. "We look at what if anything went wrong before the trial court or the administrative agency. Of course, you are looking at things such as are there sufficient facts in the record to support a jury's verdict. Or in a criminal case, were there sufficient facts to support the trial court's decision of denying a motion to suppress evidence. Or what is the evidence in relation to a request to withdraw a plea. In a civil case, was there evidence to support the liability? But then on the legal side, was the proper legal standard applied? Or if it was the proper legal standard, was it applied properly? So you're looking at what the trial court did. Are the claims that are before us the right claims? In a motion to dismiss a civil complaint, you look at the complaint itself and nothing more and try to look at it in the light most favorable to the plaintiff, does the complaint say what it is supposed to say in terms of establishing a legal claim. Or under any kind of circumstances, this person is simply not going to prevail. So dismissal of the complaint is proper. There's just a slue of stuff that we have to consider. "Of course, most of this comes down to the law," Higginbotham continued. "But it's a question of 'Did the trial court do the job right? Did the jury do the job right? Did the lawyers do the job right?' That's essentially what we are looking at. Sometimes, it results in developing new law because no law has been developed on this particular topic. And if the case is either not brought up to the Supreme Court or the Supreme Court decides not to grant the petition for review, our legal decision then becomes the law of the entire state. And so, while we are not the Supreme Court, a really interesting aspect and for me a fun aspect of this job is sometimes, our opinions become the law of the state. I love that. This is why I went to law school, particularly these constitutional challenges. These are interesting cases." As in the case of the writing of the briefs, there are instances where the lawyer making the appeal has missed some important points of law. Depending upon how much it might influence the ultimate outcome of the appeal, the judges may decide to consider the missed point of law. "Sometimes we deal with other issues in a case that weren't appealed and sometimes we don't," Higginbotham confided. "It all depends on the circumstances of the case and how serious the error is or the problem is. For example, if it is a jurisdictional issue, we have to deal with it. If it's an issue that isn't that important in the totality of the case, then if no one brings it up, then we don't have to take it. We don't have to address that issue if we discover it on our own. If someone brings an appeal on a theory that simply doesn't apply or they are bringing it up on one theory, but they missed another legal theory that could take the case in a whole different direction, if that's the situation, then we might actually take that up and dispose of the case on those grounds. Or in the interest of justice, if it requires that we address a topic not brought up by the parties, then we will do that. But that is up to our discretion." Although Higginbotham experiences routine back pain, it doesn't keep him very often from the profession he truly loves. And while he is truly content with his current position on the appellate court, he is not closed to other opportunities. "I would be interested in going to the federal system if the opportunity arose, whether it's at the trail court, what we call the district court or the court of appeals, which is called the circuit court," Higginbotham said. "But I am too busy to even think about that right now. This job is definitely enough. If those opportunities arise, I will look at them then. But right now, I'm more worried about raising two boys and we have another child on the way and handling my caseload. I've got more than enough." Perhaps there is another level that Higginbotham can lead the way to by becoming a "first" once again. Federal U.S. District Judge Paul Higginbotham might just have a nice ring to it. |
| Judge Paul Higginbotham received a 2007 Excellence in Leadership recognition Leading the way By Jonathan Gramling Part 3 of 3 |
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| Judge Paul Higginbotham, recipient of a 2007 Excellence in Leadership Recognition from the Dominion energy company, has been leading the way for over 20 years as African Americans have risen up the ladder in the private and public sectors in Wisconsin. An unabashed progressive, since tempered when he was appointed to the Wis. Court of Appeals, Branch IV three and a half years ago, Higginbotham has paved the way for African Americans in several positions including Dane County's first minority affairs coordinator, the city of Madison's first municipal judge, and now an appellate court judge, all "firsts" for African Americans. And it was probably his unsuccessful run to become a Wisconsin Supreme Court justice in 2003 that more than likely helped pave the way for the appointment of Justice Louis Butler to the Supreme Court in 2004. While Higginbotham still holds dear his personal, progressive values, the role he plays as an |
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