Calling J. Butler Out on Judicial Philosophy

As the campaign for the Wisconsin Supreme Court enters its final days, Justice Louis Butler has been going around this state talking at debates and fora and editorial board meetings about his “judicial philosophy.” Yet checking the Court’s decisions over the past three years, clearly Justice Butler’s rhetoric (rhetoric that resonates with voters by making the popular professions of modesty, fealty, and restraint) does not match his record. Consider these seven major claims:

I’M A TEXTUALIST

Justice Butler says in a questionnaire:

I also consider myself to be a textualist. I find it to be more effective to “read the words on the page,” discerning what the legislature has actually done, as opposed to what I think it may have intended to do.

He told the Janesville Gazette editorial board:

They [the legislators] speak and set policy for the people of Wisconsin. Where they speak, I tend to be a very strict writer in terms of how I apply what they do. I’m a texualist, very much in the mold of Hugo Black or Antonin Scalia when it comes to analyzing state statutes. I look at what the legislature has done as opposed to trying to fill in the blanks and trying to figure out what they intended to do along the way. We have to look at legislative intent, but I think you find that by the words that they give us and the language they employ when they pass state statutes.

Also MBA and VCY. See also this column.

That would be news to anyone who has read A Matter of Interpretation! Consider these two decisions by Justice Butler:

Meyers v. Bayer AG, Bayer Corp., 2007 WI 99.
Justice Butler’s majority opinion explodes the scope of Wisconsin?s antitrust act to encompass valid, patent protected pricing done nationwide. Justice Prosser, in dissent, said Butler’s new rule lacked “any meaningful limitation on antitrust suits against illegal activities outside this state” (69). Justice Roggensack argues that the decision attacks intellectual property rights granted by federal government patents.

Solie v. Employee Trust Funds Board, 2005 WI 42.
In a case brought by the Wisconsin Education Association Council, Justice Butler wrote for the majority that “creditable service” by teachers is equivalent to a monetary deposit in a retirement fund. In dissent, Justice Wilcox says the decision “is in contravention of both common sense and the definition of the words” at issue (58). “[T]he majority cites no statute, administrative rule, or case for the proposition that the retirement deposit fund may contain something other than money. It simply declares it to be so” (64).

NO NEW FEDERALISM HERE

Again, from the MJS questionnaire (elsewhere):

The process I go through is to look first at the U.S. Constitution, then the Wisconsin Constitution, state statutes where the legislature has spoken, our common law where the legislature has not spoken, and our prior precedent.

You start with the U.S. Constitution? What happens when the U.S. Supreme Court has interpreted the U.S. Constitution in a way you don’t like? Then Justice Butler gives the exact same words in the Wisconsin Constitution a different meaning! Again, two Butler opinions:

State v. Knapp, 2005 WI 127.
Setting aside the U.S. Supreme Court’s interpretation of the Fifth Amendment, Justice Butler writes for the majority that Wisconsin’s self-incrimination clause, which is virtually identically worded, provides greater protection to suspected criminals. In a murder case, a bloody sweatshirt is ruled inadmissible as evidence because the suspect told officers of its location before the officers read his Miranda rights to him. Justice Wilcox, in dissent, says he is “troubled by this court’s recent trend of departing from our long history of interpreting similarly-worded provisions of the state and federal constitutions in concert” (101). This departure from precedent “seriously undermines the prestige, influence, and function of the judicial branch” (102). The Court’s “pure, unvarnished result-orientation” in this case undermines the respect of the people for their judiciary (J. Diane Sykes at 733).

Dane County v. McGrew, 2005 WI 130.
Justice Butler dissents in a speeding ticket case, saying “[T]hat the United States Supreme Court has concluded in Williams v. Florida (1970), that the Sixth Amendment did not require that a jury be comprised of 12 persons has limited import on what the Wisconsin Constitution secures. See State v. Knapp; State v. Dubose” (98) (internal citations omitted).

I RESPECT PRECEDENT

Justice Butler publicly professes his respect for precedent. MJS ed board interview:

Within the context of statutory, constitutional, or common law interpretation, we look very closely at precedent. And there’s a reason for that. You want to have some stability in the law. … We have to have some stability. So I look at precedent very closely.

Admittedly, there are times when a decision should be overturned as bad law. But a review of his cases shows that he has a somewhat more loose relationship to precedent. Again, two Butler opinions as examples:

State v. Trujillo, 2005 WI 45.
In a truth-in-sentencing case, the majority holds that when the legislature passes a new maximum sentence for a crime that is lower than the previous maximum sentence, that change does not constitute a new factor justifying lowering the sentence of a defendant convicted under the old law. In dissent, Justice Butler straightforwardly asks the Court to overrule its precedent on the matter, and two subsequent Court of Appeals precedents. Citing an Abrahamson dissent in the earlier case, Butler says “By missing the point of the defendant’s argument, the court arrived at an erroneous conclusion. I would not follow Hegwood‘s precedent” (51).

Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91.
The lead opinion decides to explicitly overturn the Court?s decision just two years earlier in Maurin v. Hall. Justice Butler, concurring, labels the Maurin decision “unsound in principle” in his opinion and votes to overturn it (155 fn6).

I MAKE NARROW RULINGS

Justice Butler told the Journal Sentinel editorial board that the Court believes in “writing narrowly.” He told the MJS editorial board:

[The law] is meant to develop slowly. Not in giant leaps and bounds. And we should not be developing the law in the sense that this is what I want to do, how do I get there? You really take it one case at a time and you look at the facts situation. We have a term that we utilize on the Court, that when we are writing opinions, we should write small. By writing small, decide the case, only decide the case, and move on to the next case.

See also here and here and here. He’s said many times over that he believes the Court is engaged in simple dispute resolution between the two parties at the bar: “The courts engage in dispute resolution between parties who have been unwilling or unable to resolve their disputes” (MJS).

Yet the Court has issued very broad and sweeping rulings with Justice Butler’s vote. Two cases:

Thomas v. Mallett, 2005 WI 129.
Writing for the majority, Justice Butler makes an expansive reading of the “right to a remedy” provision of the Wisconsin constitution (111-113). He engages in an extensive review of the scientific literature and public health history of lead paint (29-98). He concludes that “the problem of lead poisoning from white lead carbonate is real, it is widespread, and it is a public health catastrophe that is poised to linger for quite some time” (133). Thus, he decides that the plaintiff may sue any manufacturer of white lead paint who could have been responsible for his particular injuries based on the “risk-contribution” theory of industry-wide negligence. Justice Prosser, in dissent, labels this a “sweeping and draconian” remedy (268).

State v. Jerrell C.J., 2005 WI 105.
“[T]he majority of the court [including Justice Butler] went on and pronounced the broad prospective remedy – the fourth indicator of judicial activism -that all custodial interviews of juveniles in future cases must be electronically recorded. Rather than recommending legislation to that effect, the court dictated the practices of law enforcement agencies based upon its ‘superintending and administrative authority.’ This constitutional provision has been invoked in the past but never so broadly, according to those justices who dissented in part. This decision arguably transforms the Supreme Court’s ‘superintending authority’ over all state courts into the expansive authority to mandate a policy related to judicial proceedings beyond the litigants in the case.” (Milw. Co. Cir. Ct. J. M. Brennan).

I’M NOT A LEGISLATOR IN ROBES

Justice Butler said in the MJS questionnaire that:

Within that context, I strongly believe that the role of the judiciary is to interpret and apply the law to a given set of facts, not make law. … In evaluating the facts through that lens, I try to reach a just result in every case – always following the law.

Of course, his interview with the Janesville Gazette editorial board runs is more telling about his view of the Court’s policy-making role:

You look at what other states are doing when you don’t have prior precedent in your own state… You look for cases that support the proposition that you’re trying to advance when you make a decision. Keep in mind, at the Wisconsin Supreme Court level, we are not an error-correcting court, we don’t take all the cases that come in the door. We’re a law-development court. We only take the difficult cases, the tough cases, the cases where there are no clear lines, where there is no real clear precedent, and we have to develop it.

Granted, this area more than any of the others is somewhat subjective. Either he voted to overturn precedent or he didn’t. Either he followed SCOTUS or he didn’t. Etc. But here still we can see strong policy-making evident in Justice Butler’s record, often times in place of the will of the people or the Legislature. One of the best indicators that he is acting like a legislator in robes is his use of the tools of a legislator. When a legislator is considering a bill, he uses testimony from experts, social science, and data to analyze the bill’s policy impacts. Judges, on the other hand, use as their tools dictionaries and precedents. Justice Butler, however, feels no compunction about using social science. Two examples:

State v. Shomberg, 2006 WI 9.
A defendant accused of sexual assault seeks to introduce expert testimony that eyewitness identification is scientifically suspect. The circuit court denies the request, saying that concerns about the reliability of eyewitness testimony based on environmental factors are within the common competence of the trier of fact. The Court, applying erroneous exercise of discretion scrutiny, says that determination by the trial judge was rational, and moreover if it was error it was harmless because of the other evidence of guilt. Justice Butler dissents, citing a litany of psychology and social science studies about eyewitness identification.

State v. Dubose, 2005 WI 126.
A majority of the Court, including Justice Butler, holds that “showup” identifications were “inherently suggestive” and generally should not be admitted as evidence. Justice Butler wrote a concurring opinion especially defending the majority?s extensive use of social science studies to conclude that showups were unreliable. In dissent, Justice Wilcox says such studies are “not a valid basis to determine the meaning of our constitution. The majority fails to adequately explain how the meaning of the text of the constitution can change every time a new series of social science studies is present to the court” (65). Justice Wilcox also makes a separation of powers argument: “It is not the function of this court to create what it considers to be good social policy based on data from social science studies. That is the province of the legislature” (66).

Of course, Ferdon is the proof-text on this point, and Thomas as well.

I’M NOT PART OF ANY LIBERAL WING

During an interview with the Shepherd Express, J. Butler labeled as ‘absolutely ridiculous the idea that there is a liberal and a conservative wing on the Court:

Shepherd: Your description of the court’s decision-making process conflicts with the popular conception of the court, which is that there are two voting blocs—a liberal and conservative bloc—with a swing vote.
Butler: That’s ridiculous. Absolutely ridiculous.

Shepherd: Why?
Butler: Nobody has taken the time, with only a few exceptions, to analyze how we vote. David Ziemer, in the Wisconsin Law Journal, which he does annually, is [one of the only people to] track the voting. I’ve heard the pundits out there, and most of the media, say, “You’ve got three to the left and three to the right and, oh my God, where’s [Justice] Pat Crooks?” That’s how the court is analyzed. That’s how we’re portrayed publicly. But in terms of the decision-making that takes place on the court, according to Ziemer’s article, no surprise, Pat Crooks is in the majority the most for the past year. I’m in the majority second-most. … I’ve kind of gone in and anchored myself in the middle of the court.

Asked by the Janesville Gazette “Is there at all a consistent breakdown in how the voting goes?” Justice Butler answered,

A: No. … There is not a 4-3 anything on that Court.

Okay, let’s look at the article. Oh, wait, it IS a 4-3 liberal wing:

Of the 16 cases that produced a four-three split, Crooks was in the majority all but once. Butler was in the majority in 13 of those cases, Bradley in 11, Abrahamson in 10, and Wilcox in seven. Prosser and Roggensack were in the majority in only six of the cases.

The breakdown of which justices were in four-three splits marked a return to voting blocs that was apparent in the divisive 2004-05 term, but which was absent last term.In 10 of those cases, the justices in the majority were Abrahamson, Bradley, Butler, and Crooks.

Moreover, Butler had to acknowledge that the Court split with narrow majorities in the three big liability cases from 2005, Thomas, Ferdon, and Wischer. In two of those, the Court split in the 4-3 wings. In Wisher, it was 5-1, with Wilcox dissenting and Prosser out. If you look at the major criminal cases, such as Knapp and Dubose and Jerrell CJ, they were all 4-3 with the traditional blocks.

I’M TOUGH ON CRIMINALS

Again, the Janesville Gazette editorial board interview:

Q: Do you believe the state Court has moved to a more liberal generous view of criminal rights than even the US high court:
A: No. [long silence]
Q: Care to expand?
A: That’s an easy one. [silence] [moved on]

Knapp. Dubose. McGrew. Honestly – just read the cases! Here’s a brief summary from the Madison Police Dept:

For years—and until this summer—the Wisconsin Supreme Court has expressly chosen to interpret the Wisconsin constitution in a manner consistent with the U.S. constitution. This has facilitated consistency, and the creation of clear rules for officers to follow. … The Dubose and Knapp II decisions (both 4-3) expressly rejected years of precedent and chose to interpret the Wisconsin constitution as providing additional protections beyond the U.S. constitution. This could potentially impact many areas of police decision-making in the future; increasing confusion among officers and creating inconsistency between Wisconsin law and Federal law.

J. Wilcox and Prosser in Dubose and Knapp make all the same points.

CONCLUSION

As recent polling data has shown, the people of Wisconsin overwhelmingly desire a judge who practices judicial restraint, not judicial activism. They do not want a judge legislating from the bench. Justice Butler knows these things, and so he has gone around the state parroting the right lines about textualism, fealty to precedent, etc. And while he will sometimes join a textualist opinion, and while sometimes a conservative will join a non-texualist opinion, the overall record is clear: Justice Butler’s record does not live up to the rhetoric he is offering voters.

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