Thursday, March 24, 2011

Outside Interest Money Turns Judicial Races into Partisan Affairs

For weeks people have been calling for the April 5 Supreme Court election to morph into a referendum on the Governor.  Justice Prosser has bemoaned this, a natural reaction for him after having watched the protests against the Governor and legislature in Madison and throughout the state.  A Supreme Court race is supposed to be non-partisan, but that hasn’t been the case for a while, and this particular one has become decidedly partisan.  Those calling for the “referendum” have no sympathy for Justice Prosser in this regard, pointing out that in December, after the GOP’s clean sweep in early November, Prosser’s campaign manager issued this statement:
“Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense complement to both the new administration and legislature.”
But if that statement defining the race in ideological terms (which Justice Prosser appropriately later disclaimed), had never been issued, this upcoming election would still be a highly charged partisan affair. This is simply what we face today in Supreme Court races due to the huge sums of money being injected into the races by outside interest groups.  This outside spending now turns all candidates into partisans, whether they are or not, whether they wish to be or not.  
 The Wisconsin Manufacturers and Commerce (“WMC “) has been open about the out-sized role it has played in recent Wisconsin Supreme Court elections.  Annette Ziegler easily won the April 2007 Supreme Court election over Linda Clifford, after a campaign in which the WMC dumped over $2,000,000 in support of Ziegler, then a circuit court judge viewed as the pro-business candidate. According to Milwaukee State Journal reporting at the time, the $2,000,000 spent by the WMC was one-third of all the money spent on the campaign including money spent by the candidates themselves and all outside groups.  Immediately after Ziegler’s win, James Buchen, the Vice President of the WMC, had this to say about the Supreme Court race scheduled for the following year, April 2008:
"We're also looking ahead to the next election . . . It's an opportunity to solidify a conservative majority if we can participate in that election successfully,"
This statement was made before there was even a candidate announced to oppose the incumbent Justice, Louis Butler, who was viewed by the WMC as too liberal, and part of a 4 to 3 liberal majority on the court.  Butler had recently authored an opinion the WMC did not like, recognizing a species of joint liability in a lead paint case in which the minor plaintiff could show that several paint manufacturers had made interior paint with dangerous lead components, but could not establish the identity of the precise company who made the specific paint that had harmed him.

True to its word, WMC poured substantial money into supporting Butler’s ultimate challenger, Michael Gabelman, a Circuit Court judge from Burnett County. For the first time in 40 years, a sitting justice was defeated and dropped off the court.  Outside groups like the WMC outspent the candidates themselves by 11 to 1.

WMC spent nearly $1.8 million in the 2008 race, mostly on television ads that supported Gableman or disparaged Butler.  Gabelman came under significant criticism during the race for a “Willie Horton” style ad denouncing Butler.  The ad was critical of Butler's early work as a public defender on behalf of convicted child molester and the ad implied Butler had helped set the molester free, after which he molested another child. The ad didn’t bother mentioning that the molester’s sentence was reinstated and fully served before the later crime.  More importantly, it attacked Louis Butler for doing his professional obligation as a public defender, serving his client zealously, the duty of every lawyer.  So in that sense the attack ad not only attacked Butler, but also American jurisprudence.

In the wake of these two elections in which the WMC played such a large role, the League of Women Voters, a non-partisan organization, filed a petition with the Wisconsin Supreme Court in which the group asked the court to establish a judicial ethics rule covering all Wisconsin judges, that would preclude a judge from participating in a case whenever a party appearing before a judge had contributed $1,000 or more to the election of the judge for his or her current judicial position, or was a person or group that had paid in whole or in part for a mass communication that supported the judge or attacked his opponent in a judicial election.  The League of Women Voters was trying to deal with the inordinate amount of influence that unions, other large political action groups and business associations like WMC and the Wisconsin Realtors Association might have in future decisions by the courts, and the risks this posed for the impartiality of the courts. 

The Supreme Court considered the petition of the League of Women Voters at the same time it considered separate petitions filed by the Wisconsin Realtors Association, Inc, and Wisconsin Manufacturers and Commerce that asked the court not to require recusal based on campaign support of the judge.  The Realtors’ petition asked for the following rule:

A judge shall not be required to recuse himself or herself in a proceeding based solely on any endorsement or the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.

WMC’s petition asked for a rule that protected its interests as a lobbying group on behalf of many Wisconsin businesses:

A judge shall not be required to recuse himself or herself in a proceeding where such recusal would be based solely on a party to the proceeding's sponsorship of an independent expenditure or issue advocacy communication (collectively, an "independent communication") or by a party to the proceeding donating to an organization that sponsors an independent communication.

The proposed rules of the Realtors and the WMC were adopted verbatim by a Supreme Court divided 4 to 3.  Voting in the majority was Justice Roggensack, Justice Gabelman, Justice Ziegler, and Justice Prosser.  Voting against the WMC and Realtors petitions were Chief Justice Abrahamson, Justice Bradley and Justice Crooks.  The effect of adopting the combined rules of the Realtors and the WMC had the potential to lead to the following result: 

A sitting judge or justice up for re-election, hearing a case involving a WMC member, could receive $20,000 in campaign contributions from a WMC member company, made through a number of different individual officers and employees of the member, or could have the WMC sponsor $50,000 in attack ads against his or her opponent, and not be compelled by the ethics rules to step out of deciding the case.

Justice Roggensack tied her decision to reject automatic recusal to the right of individual voters to have judges they helped elect not be automatically disqualified:

We elect judges in Wisconsin; therefore, judicial recusal rules have the potential to impact the effectiveness of citizens' votes cast for judges. Stated otherwise, when a judge is disqualified from participation, the votes of all who voted to elect that judge are cancelled for all issues presented by that case. Accordingly, recusal rules, such as SCR 60.04(7), must be narrowly tailored to meet a compelling state interest.

In her dissent on the adoption of the WMC rule, Justice Bradley said:

Unlike the majority, I conclude that the purpose of a recusal rule is to maintain a fair, neutral, and impartial judiciary.  A fundamental principle of our democracy is that judges must be perceived as beyond price. 

When litigants go to court, they want a judge who will decide the case based on the facts and the law.  They do not want the umpire calling balls and strikes before the game has begun. Yet under the majority's new rules, which mark a substantial departure from our current practice, judges' campaign committees and perhaps someday even judges themselves will be able to ask for and receive contributions from litigants before the trial has begun and before the judge makes a decision in their case. 

Both judges presented the arguments for and against the adoption of the WMC/Realtors proposed rules much more fully in the court’s order.  (J. Roggensack at page 7 of the order; J. Bradley at page 13.)  I would encourage you to read both opinions and see which one makes best sense to you.
As I noted Tuesday, the WMC has begun seeking member contributions to oppose Joanne Kloppenburg and support Justice Prosser’s re-election.  The WMC obviously wants to preserve what it sees as the current 4 to 3 pro-business majority on the court.  I am sure the unions have started gathering funds for Kloppenburg as well.  It may be time to rethink judicial elections, and go to a merit system with a reasonably independent panel of lawyers and law school representatives serving to make nominations to the Governor that he or she relies on to fill judicial positions.

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