Waddling to the Speech Police

“The Wisconsin Judicial Campaign Integrity Committee has been charged with reviewing judicial campaign materials…”

So begins a letter last week to the Committee from the Wisconsin Association for Justice, i.e. the state trial lawyers bar (formerly the Wisconsin Academy of Trial Lawyers). Perhaps not surprisingly, the letter begins from an utterly false premise. The WJCIC has not been charged with anything by anybody. It is entirely self-appointed (and self-righteous). But the Leftist interest groups (WAJ, One Wisconsin Now) are happy to have it on the team, because it uses the power of the State Bar to impose an interpretation of the rules that favors their preferred candidate, Justice Butler.

WAJ’s “complaint” stems from a fundraising letter sent by the Gableman for Supreme Court committee and signed by former WI Lt. Gov. Margaret Farrow. Judicial candidates are not allowed to engage in fundraising; they must rely on others to solicit support for their official campaign committee.

Let me take issue with a number of statements from the WAJ “Complaint”:

Throughout the letter, the terms ‘activist’ and ‘strict constructionist’ are used. The terms are never explained, but appear to imply that ‘activist’ is bad and ‘strict constructionist’ is good.

For starters, let’s remember that this is a fundraising letter, not a law review article. Second, are we surprised that a conservative Republican like Margaret Farrow thinks that judicial activism is bad, but that judges who respect the text of laws and the Constitution are good?

The letter states, ‘…the Judicial Branch of our government is co-equal to the Legislative Branch – NOT an agenda-driven veto authority over the people’s elected representatives.’ This is very loaded language and goes to the very heard of what courts do.

“Loaded language” in a fundraising letter? Heaven forbid. Second, does WAJ disagree with Mrs. Farrow? Does WAJ believe that the Court should be an agenda-driven veto authority over the Legislature?

The letter states Justice Butler’s decisions ‘threaten the safety and prosperity of Wisconsin.’ ‘Threaten’ implies ‘danger’ or ‘evil.’

Threaten, of course, could also mean “places in a precarious position,” as in, Justice Butler’s decisions place the safety and prosperity of Wisconsin in a precarious position.

How can courts that decide cases properly before them ‘threaten’ safety or prosperity?

Very simply – by using activist methods of decision to take away the legitimate tools of law enforcement or to expand liability beyond its appropriate bounds.

Is she giving her opinion or is there empirical evidence to support this claim?

Does it matter? On one level, Mrs. Farrow is a former long-time state senator and lieutenant governor of the state. She seems eminently qualified to opine on the state of the state. Even more broadly – does WAJ believe that free speech during a campaign requires that every statement by empirically provable? Is the 1st Amendment limited to the statistically verifiable?

If so, WAJ is in trouble. Because their citation to the Corporation for Economic Development 2007 “Development Report Card” doesn’t prove what they say. Just because CED says that Wisconsin has a nice standard of living does not mean that the Court’s decisions do not “threaten” the prosperity and safety of the state. On one level, there are dissenting voices on Wisconsin’s economic prospects, contra CED. On another level, just because our economy is doing okay according to CED, maybe we could be doing better if not for the Court’s decisions. The Wisconsin Economic Development Institute has concluded, “Called the ‘Number One’ and seemingly silent threat to the development of our future economic health, Wisconsin’s deteriorating litigation atmosphere is a critical factor in business retention/expansion and location decisions.”

The letter then claims, ‘Louis Butler has put growing businesses and job creators in limbo; if you do business in Wisconsin, there is a good chance you will be sued, one way or another.’

WAJ then points out that there are fewer money judgment cases than divorce or foreclosure of mortgages in Wisconsin, and businesses often sue one another. Still, those two statistics do not refute the contention that a Wisconsin business has a “good chance” of getting sued. Moreover, “good chance” is a subjective term – will the WJCIC assign a specific odds to “good chance” before holding Farrow’s statement irresponsible?

The letter continues with ‘Louis Butler’s decisions have been a windfall for trial lawyers while harming our state economy and health care system.’ Are they implying that Justice Butler is not independent or impartial in a case when a trial lawyer represents a person? These are serious allegations.

They are also unfounded implications. Mrs. Farrow’s statement does not say that Justice Butler favors trial lawyers. She says that trial lawyers benefit financially from his decisions. This seems obvious: the cases in the wake of Thomas and Ferdon let trial lawyers make more money. And again, I don’t think that the CEF score card disproves her statement; the climate could be even better if not for the Court’s recent decisions. Again, the WEDI study has concluded that the Court’s recent decisions imperil job growth in Wisconsin. See generally my ABCs compilation.

Ms. Farrow claims the Ferdon case ‘can lead to higher health care costs for Wisconsin patients.’ [WAJ then points out that medical malpractice insurance costs only 35 cents of every $100 spent on health care in Wisconsin, according to a WAJ analysis.] Has any of us experienced lower health care costs since caps were instituted?

Yes, actually. A Pinnacle Actuaries study predicts that Wisconsin physicians will see a 10 to 12 percent increase in malpractice insurance rates because of Ferdon. These increased rates will be passed on from the doctors to employers and customers. Prof. Robyn Shapiro of the Medical College of Wisc. concluded that Ferdon “renders Wisconsin‘s medical malpractice liability climate, which had been comparatively stable, more unpredictable. The Ferdon decision could lead to increased malpractice premiums, rising numbers of malpractice claims, migration of providers from Wisconsin, more limited access to care, and increased health care costs…”

The letter impugns the integrity of Justice Butler by stating that he is pursuing some ‘personal agenda’ in reviewing cases.

The exact statement made in the Farrow letter is “Sending your generous gift today will help Mike Gableman bring law and order back to the Supreme Court and uphold our Constitution – NOT seek to change it to fit a personal agenda.” Judge Diane Sykes believes that the Court’s desire for a particular result drove its reasoning in several key cases. Looking at the public policy language of Thomas or the concurrence in Wisconsin Auto Title or the social science in several cases, one could find justification to say there is an “agenda” at work.

Finally, the letter states that, ‘his decisions have caused untold damage.’ ‘Damage’ is a very strong word and implies something bad. In 2006-07, Justice Butler was in the majority 85 percent of the time, just behind Justice Crooks. Is Ms. Farrow implying that the majority of the Wisconsin Supreme Court cases are ‘damaging?’ One can disagree with a decision of the Supreme Court, and often many of us do, but to say that this rises to the level of ‘damage’ impugns Justice Butler and the judicial system.

The reality that WAJ may not want to confront is that judicial decisions have real world consequences. The methods of reasoning used and decisions reached are damaging to Wisconsin’s economy and constitutional system of government. Such policy consequences are real and should be discussed by our community.

The point of a fundraising letter is to get people to part with their hard-earned money. To be effective at achieving this goal, language that incites emotion is often used. In a campaign context, such language may be critical of office holders and their ideas. It’s free speech, and in America we prefer and protect robust campaigning. In this particular instance, moreover, I believe I have demonstrated that each of Mrs. Farrow’s statements in the fundraising letter are defensible on the facts. The most WAJ has is its suppositions – the “complaint” uses the words “implies” or “insinuates” EIGHT times, which tells me that the language on its face is supportable, they need to read things into the letter to find objections. WAJ’s complaint is a publicity stunt, not a serious rebuttal to Mrs. Farrow’s letter, and WJCIC should dismiss it accordingly.

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