Wisconsin residents have the opportunity to vote in the state primary election today. Voters will decide which candidates move forward to the spring general election, including candidates for the Wisconsin Supreme Court. I encourage you all to make your voice heard today by voting. Even so, I think the state Legislature must enact a different system of choosing our state appellate court justices.
In contrast to the federal government, many state governments do not appoint appellate court justices. Instead, voters elect them through either nonpartisan or partisan elections. In theory, this may sound like a good idea. After all, this country was based on the democratic ideal of people being able to choose who should be able to exercise governmental power. Given the recent trend in Wisconsin Supreme Court elections, though, I think judicial elections are extremely unwise.
When appellate court justices have to campaign for their positions, many problems arise. We want justices to be impartial to the parties that come before appellate courts. We also want them have an open mind to the various legal issues they must ultimately decide upon instead of having a predetermined notion of how they should decide each and every legal issue. Judicial appellate court elections defeat many of these goals.
It’s difficult, to say the least, for a justice to claim to have an open mind on various legal issues when justices must run campaign ads either defining their judicial philosophies or, alternatively, run ads attacking the alleged judicial philosophies of their electoral opponent. For a vivid example, one only need to look back to the now-infamous ad ran by current Supreme Court Justice Michael Gableman in 2008. Gableman’s ad claimed his opponent former Supreme Court Justice Louis Butler “worked to put criminals on the street” by finding “loopholes” for criminals.
Gableman’s ad was a complete distortion of the facts. Butler was a public defender assigned to a defendant’s criminal appeal and simply argued the trial judge had committed a legal error by allowing certain prejudicial evidence to be heard by the jury. Butler wasn’t finding loopholes — he was arguing for his client’s rights under the law. If Butler hadn’t argued this point, by definition, he would have committed legal malpractice. The ad also tried arguing Butler caused this certain defendant to escape a prison sentence. This was clearly a lie, demonstrated by the fact Butler lost this appeal on the case in front of the Supreme Court, thus sending the criminal defendant to prison. The Wisconsin Judicial Commission filed a complaint against Gableman for violating the “ethics code for judicial candidates that says they cannot lie about their opponents,” but the Wisconsin Supreme Court was deadlocked 3-3 on whether Gableman’s ad constituted a lie, thus freeing Gableman from any punishment.
Judicial elections do not only seem to make justices less impartial in regards to general judicial philosophy; they make them seem less impartial to the parties that come before them seeking legal redress. For example, many special interest groups ran “issue ads” in support of Gableman in 2008, spending more than $2.5 million, according to the Wisconsin Democracy Campaign. Of this amount, an estimated $1.76 million came from the group Wisconsin Manufacturers and Commerce.
For years, WMC has been advocating for tort reform — more properly called “tort deform.” Included in the tort reform WMC advocated for are caps on punitive damages and a change in the standard of proof in product liability cases. Thus, there was no surprise in Horst v. Deere & Co., a 2009 product liabilities case, when Justice Gableman wrote a concurring opinion advocating for a change in the standard of proof for product liability cases from the “consumer expectations” test to the more business friendly “reasonable alternative design” test — the same change WMC advocated for in the past. It seems the money spent by outside special interest groups is influencing Gableman’s judicial decisions, thus making it harder for him to be impartial to the parties that come before the court, which is the judiciary’s duty.
Judicial elections are also having a negative impact on the civility between justices on the Wisconsin Supreme Court. Whether it is Justice David Prosser calling Chief Justice Shirley Abrahamson “a total bitch” or Prosser allegedly choking Justice Ann Walsh Bradley, there seems to be no end to the dysfunction on Wisconsin’s highest court.
Wisconsin’s state Legislature needs to adopt a merit selection system for choosing state appellate justices, also known as the Missouri Plan. This system uses a bipartisan commission to recommend candidates the governor choose from in appointing people to various judicial positions. Some time after justices are appointed, they usually have to run in retention elections, allowing voters to decide if they should stay on the court. Wisconsin should not utilize retention elections in a merit selection system, though, especially after seeing multiple justices being voted off the Iowa’s highest court because the court held banning same-sex marriage violated the Iowa Constitution.
Wisconsin’s highest court is in state of dysfunction. Judicial elections only further exacerbate this problem. A merit selection system without retention elections may be the only way to restore civility and impartiality to the Supreme Court.
Aaron Loudenslager ([email protected]) is a first year law student.