Feb

LWV-WI v. LWV-WI

Today’s WisOpinion column by the executive director of the League of Women Voters of Wisconsin prompted me to go back on Wisconsin Eye (an excellent resource for lawyers) to the Wisconsin Supreme Court’s hearing on the League’s recusal rule petition.

The League of Women Voters Education Fund was the first petitioner to present to the Court at the October 28 hearing. Represented by Virginia Bartelt, a Middleton attorney, the League sought a recusal rule based on a $1,000 contribution. During the oral hearing on the matter, Justices David Prosser and Michael Gableman asked the League about its position on judicial elections (starts at about the 16 minute mark). Justice Gableman asked, “Has the League taken a position in general about whether justices ought to be elected or appointed?” The counsel for the League did not know, and so Justice Gableman asked if she would confer with the League’s executive director, who was present in the courtroom. Chief Justice Abrahamson invited her to the podium and she identified herself as Andrea Kaminski, Executive Director of the League of Women Voters of Wisconsin Education Fund. She said:

Ms. Kaminski: “The League has begun to invite some speakers because our member leagues – we have 17 leagues in the state – some of them expressed an interest in looking at the judicial independence issue. Legislatively, we support the Impartial Justice bill and we support issue ad regulation. We have invited some speakers to come and talk about the question of public financing for elections and also merit selection as options that are used in other states. However, the League has not changed its position supporting election of judges in our state, and justices.”
[The Chief asked how old that position is, and Ms. Kaminski responded, "I know that it is decades old."]
J. Gableman: “So is the League of Women Voters committed to the ability of the people to vote for judges?”
Ms. Kamiski: “Yes, we are.”

Later, Justice Prosser and the counsel and executive director had an exchange on the topic:

J. Prosser: “If the people in this room, and the people of Wisconsin, went to the website of the Wisconsin League of Women Voters, are you representing to the Court that there would not be anything on that website that indicates a preference for appointing judges and justices? Or at least justices? There’s nothing on that website?”
Ms. Kaminski: “There is nothing on that website to that effect.”

Today’s column by Ms. Kaminski on WisOpinion reiterated these points:

Some people suggest that the Citizens United ruling is one more reason to do away with election of Wisconsin’s Supreme Court justices and move to a “merit appointment” system of judicial selection. That is like throwing the baby away with the bathwater, when you consider that until 2007 most people would have said that our Supreme Court elections have worked very well since statehood in 1848.[*] Rather than take the vote away from citizens, let’s work to improve the elections.

So, I went to the website of the League of Women Voters of Wisconsin: www.lwvwi.org. And I followed the “Position Papers” tab to “Administration of Justice,” and here’s what I found:

COURTS
Support of: …
A system which provides that judges be appointed on the basis of qualifications established by citizen review, and that they subsequently stand for election on their records. …
This position was adopted in 1957 and reviewed and reaffirmed in 1971. … The League unsuccessfully continued its support for a constitutional amendment providing for the selection of judges based on qualifications established by citizen review. The League has recommended the establishment of a citizen’s advisory review board to make recommendations to the governor for judicial appointments through a merit selection process. Some governors have chosen to do this, but there has been no effort to make this method a statutory requirement.

There may be a way to try to reconcile the League’s support for the status quo and “citizen advisory review” – Mrs. Kaminski makes a feeble attempt at doing so in her column by writing:

The League of Women Voters of Wisconsin Education Fund supports the current system in Wisconsin, in which justices may be appointed by the governor to fill vacancies and subsequently stand for election on their own records. This is the way most of our justices join the Supreme Court. It makes the Court accessible to qualified individuals who might never be able to mount a statewide campaign, and then it makes them accountable to the people.

First, though this could theoretically in a stretched way be reconciled with some statements on the website (i.e., the part about citizen advisory boards and making them statutory), it could not be reconcile with the League’s past support for a constitutional amendment to move to merit selection (the State Bar has supported amendment in the past as well).

Second, this is a gross mischaracterization of “the current system.” Though justices “may” be appointed by the governor, who “may” choose to use an advisory citizen commission, full terms on the Court can only be given by the people. Of the current seven justices, Justice Bradley won an open seat in 1995, Justice Crooks won an open seat in 1996, Justice Roggensack won an open seat in 2003, Justice Ziegler won an open seat in 2007, and Justice Gableman beat an incumbent in 2008. In other words, 5 of 7 faced the most rigorous kind of citizen review – election – to first join the Court, not gubernatorial appointment perhaps following partial screening by a hand-picked commission of political appointees.

In short, the League needs to sort out its own position on this issue. If it is committed to the current system of elections, then it should be so. If it is for merit selection, then it should be so. But this muddled middle ground, saying some things on its website, some things on WisOpinion, and some things to the Wisconsin Supreme Court, and then twisting what each says to try to mesh with what was said before, should not continue.

*I have previously pointed out that this kind of statement is a canard – in recent memory, the 1999 race was a bruising contest, complete with editorial wailing and gnashing of teeth and calls for drastic reform.

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