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Today’s headline focused rightly on Tom Crean’s departure from Marquette, a topic I leave to my colleagues on the blog. The secondary headline, also quite appropriately, was Judge Gableman’s upset of Justice Butler, the first challenger to to a Supreme Court race since 1967.
Lost in the other news was Scott Walker’s victory over Lena Taylor. The fact of his vicotry is not surprising, I admit. His margin of victory, however, 59 to 41, is worthy of note and comment. Pundits did not expect Mr. Walker to do as well this year as he did four years ago, and for good reasons:

1. He had 4 more years of tough budget cuts and negative MJS coverage.
2. Voters were 4 years further removed from the pension scandal that swept him into office.
3. The opponent had higher name recognition and a political machine and campaign experience from her previous electoral successes.
4. The opponent was a member of the State Legislature and its budget-writing Joint Finance Committee, with much greater fundraising opportunity.
5. His opponent was an African-American in a season of heavy focus on minority turnout for Barack Obama and Louis Butler.

Given all of these forces, I and others expected Mr. Walker to win with about 55 percent of the vote. Yet he finished last night with 59 percent, beating the 58 number from four years ago. So congratulations to Scott, his county administrative team and his campaign team for a great win. They prove again that low taxes and safe neighborhoods is a message and record that wins in every community.

Allow me to add a single thought to the post-election spin across the blogosphere (Fraley, Garvey, Charlie, Plaisted, Folkbum, Esenberg).

The Madison Capital Times editorial board believes they know why Justice Butler lost yesterday:

The fact that the first Wisconsin Supreme Court justice to be defeated in more than 40 years — and only the second incumbent justice to lose in the state’s history — was also the first African-American to sit on the court ought to give everyone pause….
So why did Butler lose? Those attack ads by the Gableman campaign distorted the incumbent’s record and flashed images of an African-American justice next to those of an African-American child molester. There was no subtlety to the Gableman campaign. It was explicitly racial in its messaging.

This is, I believe, not true. In fact, I would posit to you that the campaign’s ad cost them 1 to 2 percentage points yesterday. Neither of us can prove our theory, but here’s my argument:

The editorial boards ripped Gableman apart universally for running that ad, both when the ad went up and in their endorsements. There was significant negative news coverage of the ad itself, 34 judges and the DA endorsement drop. GWC and Butler’s campaign went up with ads highlighting the condemnation. The ad was railed upon in several debates between the two. Even conservatives were unenthusiastic about the ad, the only ad that Gableman’s campaign ran all race.

Contrary to the Capital Times’ assertion, I do not believe that the Gableman ad helped it by appealing to and winning over some huge number of racist Wisconsin voters who would not have supported Gableman otherwise. Rather, I believe it cost the campaign votes from moderate and independent voters who intended to vote and were turned off to Gableman by the negative news coverage in the wake of the the ad going up.

If you haven’t voted yet, get out and do it now! If you don’t know where to vote, find out here.

First, who did you vote for in the two major races today?

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Here is a quick run down of the two major choices I made today in the Wisconsin/Milwaukee April 1st elections and why (if you are a regular Gop3.com reader, you know these already. I have included predictions based on personal opinion in the spirit of March Madness):

Scott Walker vs Lena Taylor

My Choice: Scott Walker
Why: He is man dedicated to fiscal responsibility, small government, economic development and safety in Milwaukee.

Prediction: Walker 57% Lena 43%

Justice Louis Butler vs Judge Mike Gableman

My Choice: Judge Mike Gableman
Why: Plain and simple, Judge Gableman has a solid record of judgement based on on what the law says, not what he wants it to say. Justive Butler sides with criminals, hands out lenient penalties and awards far too much in the form of monetary damages that further encourage frivolous lawsuits. If you care for more details, read Daniel’s latest post or the many others he has made on the subject.

Prediction: Gableman 51% Butler 49%

In a final note, I will be live blogging tonight from the Walker victory party so, check back for the latest.

PS:
If you’re in Milwaukee’s 15th District, be sure to vote Dan Wycklendt for County Supervisor, Gop3.com blogger Katie’s brother!

Two cases out within the last two weeks illustrate the importance of the race for the Wisconsin Supreme Court that voters will decide tomorrow. The Court also accepted new cases today, which again show the importance of tomorrow’s election.

STUART V. WEISFLOG
Earlier this week, the Court decided Stuart v. Weisflog’s Showroom Gallery, Inc. by a 4-3 vote, with Abrahamson, Bradley, Crooks, and Butler aligned on one side, and Prosser, Roggensack, and Ziegler dissenting (decision). The MJS summarizes the case: “A Brookfield couple who sued a contractor over shoddy construction of an addition to their home will be able to collect double the $95,000 in damages awarded by a jury plus attorney fees, according to a decision issued Friday by the state Supreme Court.” How’s this for judicial activism, MJS again: “Allowing double damages encourages reluctant consumers to become private attorneys general and fight unfair trade practices, the court found. That will deter future contractor malfeasance and promote the public good.”

From the Roggensack dissent, as summarized in the MJS:

“I would reverse the decision of the court of appeals and remand the case to the circuit court to vacate the award of damages and attorney fees and dismiss the lawsuit,” Roggensack wrote. She went on to say homeowners have been able to sue and collect for breach of contract and that has been “a sufficient remedy in the past.” Roggensack said allowing consumers to sue for unfulfilled contractor promises “will place an unwarranted burden of possible criminal prosecution on the building trades. It will have far-reaching impacts throughout Wisconsin, which the majority opinion appears not fully to appreciate.”

Deb Jordahl, writing for the Wisconsin Policy Research Institute, describes the decision as “another Sloppy Wet Kiss on State Trial Bar.” She closes her op-ed by asking “whether the lofty goal of turning reluctant consumers into attorneys general is an appropriate role for our state Supreme Court, because it sounds a bit like legislating from the bench to me.”

STATE V. HARENDA ENTERPRISES

Out two weeks ago, this case is again decided by a 4 to 3 vote breaking along the lines delineated above (decision). The AP story on the case: “The Wisconsin Supreme Court has reinstated penalties against a firm accused of violating asbestos management rules in the renovation of the Milwaukee Theatre. The court ruled 4-3 that Harenda Enterprises Incorporated is liable for violating the state administrative code. It reinstated an order that the company pay penalties and surcharges for failing to remove asbestos during the renovations.” The Court overturned the ruling of the WI Court of Appeals (decision) and gave effect to two “clarifications” from the U.S. EPA issued after the DNR adopted the absestos rule.

Justice Ziegler dissents for herself, Justice Prosser, and Justice Roggensack, basically engaging in a textualist interpretation of the 1990 DNR rule at issue.

In an area as crucial as asbestos removal, it is important to have clear, understandable, enforceable testing methods. In general, clarifications may be a useful guide, but the “clarifications” in this case are inconsistent with the plain language of the rule and more than interpretive guidelines. In fact, the “clarifications” effect a substantive change rather than clarify the alleged ambiguity in the 1990 rule. Despite the fact that the “clarifications” do not clarify the alleged ambiguity, are contrary to the promulgated rule, and were not adopted in this state, the majority still gives them the force of law. As a result, I must respectfully dissent.

She also makes a separation of powers and fairness/notice argument: “In effect, new rules governing asbestos testing, which could result in civil or criminal penalties, have been imposed without following proper rule-making procedures.”

This is why the election tomorrow matters, folks. The Court is split 4-3, with two very different judicial philosophies held by each wing. One set of justices, including Justice Butler, believes in the Court empowering consumers, updating rules, and acting like a legislature. The other set of justices believes in giving effect to the plain language of the law at issue. Which do you think judges ought to be doing?

NEW CASES

Here is how the Supreme Court’s information release describes three of the five cases on which it granted the petition for review today:

Godoy v. E.I. du Pont

This is a product liability case involving lead paint and pigment manufacturers. A decision by the Supreme Court could affect more than 30 similar cases pending in Milwaukee County Circuit Court and how the Supreme Court’s 2005 decision in Thomas ex rel. Gramling v. Mallett may be applied in other cases.

Plastics Engineering Co. (Plenco) v. Liberty Mutual

The U.S. Court of Appeals for the 7th Circuit has asked the Wisconsin Supreme Court to certify three questions related to this case, which involves insurance coverage for asbestos-related lawsuits. … A decision by the Supreme Court could clarify the definition of “occurrence” under Wisconsin law and control the outcome of the appeal in the 7th Circuit. A decision also could have public policy implications and resolve questions likely to recur in the state.

State v. Denk

[W]hether the police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of a previous case, State v. Pallone, 2000 WI 77…
Upon running a license plate check, the officer discovered the license plates on the vehicle did not belong to Pickering’s car. When the officer returned to the car, he smelled marijuana and eventually found drug paraphernalia and marijuana.
After formally arresting Pickering, the officer walked around to the passenger side of the car, where he saw a small eyeglass case on the ground in the vicinity where the passenger, Jordan A. Denk, was standing. Denk conceded the eyeglass case belonged to him and placed the case on the hood of the car at the officer’s request. Denk denied owning the contents, which turned out to be a glass “methamphetamine pipe” and “some cleaning tools.” The officer arrested Denk and searched him, finding a baggie of marijuana, two marijuana pipes and a baggie containing methamphetamine.
… The Court of Appeals certification memorandum focuses on the search of the eyeglass case and whether its search could be justified as incident to the arrest of the driver, Pickering.
The state argues the search incident to the arrest of a driver of a vehicle should extend beyond a vehicle’s interior to an immediate area surrounding the vehicle from which the driver could retrieve a weapon or evidence. To rule otherwise would allow criminals to get rid of evidence or contraband simply by throwing it out of the vehicle, the state contends.
Denk asserts the search-incident-to-arrest exception authorizes police to search only the interior compartment of an automobile in which the individual was a recent occupant.

These could each be very important decisions - how is Thomas applied, what are its limits? Will the Court issue a sweeping decision on liability for asbestos suits? What can a police officer search in the course of a traffic stop after an arrest is made?

Who do you want deciding those questions - Justice Gableman or Justice Butler?

So it looks as though Ray Redlingshafer is the MUSG President Elect. Today Ray with his running mate and EVP elect Kathleen Blaney defeated Giuseppe Pappalardo and Billy Doerrer by a very close margin. Ray and Kathleen were elected with 51.1 percent of the vote. After a penalty of 5% for violating campaign rules Pappalardo and Doerrer received 42.6% of the vote.

Redlingshafer and running mate Kathleen Blaney, a College of Nursing junior, filed a complaint charging that Billy Doerrer, Pappalardo’s running mate, sent an unsolicited text message in violation of campaign rules. According to the complaint, Doerrer, a College of Arts & Sciences sophomore, sent the following message to a friend of Blaney last night: “I voted for Giuseppe Pappalardo and Billy Doerrer today. You should too at musg.mu.edu/vote. Pass this on to at least 5 friends.”

The complaint also alleged other past infractions on the part of the Pappalardo-Doerrer campaign, including mass emails and Facebook messages.

Doerrer also filed a complaint, alleging three members of his campaign received a similar text message in support of the Redlingshafer campaign, stating: “Hey everyone if you haven’t voted yet be sure to vote 4 Ray and Kathleen. They r both great people. Also if you r an engineer vote for Scott Emerson.”

According to the complaint, the text message was sent by Brad Kwaterski, a sophomore in the College of Engineering. Blaney said Kwaterski has no affiliation with the Redlingshafer/Blaney campaign.

According to the MUSG Web site, MUSG election rules stipulate that candidates and their campaign committees may not distribute “unsolicited mass e-mail or electronic messages.” In addition, “solicitation of votes by direct or indirect mailings (electronic or otherwise) or phone calls of any kind” is prohibited.

There is a process that all of this will go through before the election results are official. All other election results can be found here. There is also an oppertunity for students to join various all university committees…which are more specific to smaller areas inside the Marquette Community.

Secondly there is this whole mess that was the Tribune article claiming a conspiracy that Kappa Sigma guys have taken over MUSG. I’ll let the comments on the Trib webpage about Kappa Sigma being a leadership fraternity stand alone given that is it’s a whole argument in itself. I really don’t know where to begin with this, because there are so many issues that are inevitably raised without even explaining that the article is suspicious to begin with. First of all, the article could have been better done if someone wanted to look at the amount of Greek students involved in MUSG, not just Kappa Sigma, because there are a lot, and it’ll be harder to find non-Greek students involved. Apparently it’s near impossible to find someone willing to be interviewed for the article that isn’t Greek. Going off this point, I really don’t care about the amount of Greek students in MUSG because all of them are pretty smart, competent individuals that will listen to all their constituents and their needs. Whether or not they are Greek, there are a lot of good senators in MUSG (no bs). It’s also easy to see that legislation can’t be slanted towards the Greek Community and on top of it there is Kappa Sigma voting block, or any Greek voting block for that matter that could block legislation. In fact, though I’d have to look back at the minutes, but I highly doubt there have been more than 15 votes against all the pieces of legislation that have been written, so that really canceled all that out.

Finally there is one specific thing that I would like to make a note of from the article.

As the senior-most member on the committee, Pappalardo said he believed he would naturally be the one to fill the position. But instead, the position was given to a Kappa Sigma pledge, College of Business Administration sophomore John Giel, who had only one semester of Senate experience.

The reason why Giuseppe was passed up in favor of John Giel was because Giuseppe was already chair of the ad-hoc committee and MUSG likes to offer leadership positions to as many students as possible.

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.

It’s shocking, really. If you think through the implications of Lena Taylor’s legislation, it would result in the release of literally of thousands of hard-core criminals back into our streets. Criminals who would otherwise be where they belong, behind bars. Criminals who could threaten our neighborhoods here in Milwaukee, including the Marquette campus.

Rapists, robbers, drug dealers, even murderers. Literally thousands of offenders convicted of violent crimes would be back on the streets under Senator Taylor’s plan. What’s more, her bill, SB 401, would increase taxes in Wisconsin by $3 million, and it would cost taxpayers statewide an additional $50 million or more in unfunded mandates on counties, according to a Legislative Audit Bureau report.

Lena Taylor’s plan would send criminals to children’s court, rather than adult court like they are now, and then she asks the taxpayers to pay millions more for it. Incredible. Let’s delve into the details.

Currently, a 17 year old arrested for a crime is sent automatically to adult court. Senator Taylor’s bill would give the judge the discretion to send a 17-year-old offender to children’s court, which would result in a faster release back into society. The bill would also reclassify each 17-year-old suspect as a “child,” and that would be their designation unless the judge changed it. The fiscal estimates expect that the vast majority of offenders covered by the bill would be sent to children’s court. How many offenders are we talking about? The LAB report says that from 2001 through 2005, 31,075 arrests were made in Milwaukee County of 17-year-olds. Many of those arrests led to cases and convictions.

Senator Taylor is quick to point out that her bill continues to automatically send to adult court those who commit or attempt first degree intentional homicide, commit second degree intentional homicide, commit first degree reckless homicide, or commit assault on a correctional or probation officer. But consider how many other crimes where offenders would make their way back into our neighborhoods:

MURDERERS

Her bill means some murderers would now start the system labeled as children - those who commit felony murder or second degree reckless homicide. A review of cases from 1995-2006 indicates that at least 14 such murderers would get such relief, including 13 from Milwaukee County. Consider this case, 1996CF964677B, as reported in the Milw. Journal Sentinel:

Two men who participated in a fatal beating that was at least partly motivated by the death earlier that day of “gangsta” rapper Tupac Shakur received maximum prison sentences Wednesday for their roles in the attack. Charles I. Hudson, 20, and Terrance L. Johnson, 17, received prison terms of 15 and 10 years, respectively, for the Sept. 13 mob beating of Andre D. Arvin, 38.

You decide - does a 17-year-old who joins a brutal mob in beating a man to death deserve a year in juvie, or 10 years in prison? By the way - he was later convicted of possession of cocaine with intent to distribute, again in Milwaukee County (2006CF003558).

DRUG PEDDLERS

Senator Taylor’s bill would allow 17 year old drug dealers to be sentenced as children. Drug crimes constitute 17 percent of criminal cases filed against 17-year-old offenders, so do the math and we’re talking about over 1100 drug offenders each year being labeled as “children.” You think that’s a good idea, Senator?

RAPISTS

The same data set shows that crimes against persons, violent crimes, constitute 15 percent of criminal cases filed against 17-year olds. That means 1000 people accused of violent crimes could be shunted off into children’s court each year. Look at a few examples from CCAP:

1999CF003402: Convicted in Milwaukee at age 17 of second degree sexual assault of a child. Has since been convicted of drug dealing, felon in possession of a firearm, and sexual assault.

1996CF000584: Convicted of felony threats to injury – criminal gang crime in Kenosha. Received probation. Age 17. Then, convicted of sexual assault of a child and child abuse and sent to prison. Still age 17. Convicted of misdemeanor battery. Still 17. Later convicted of resisting an officer. Should he be sent to the same court as a 14 year old who commits a petty theft, Senator?

VIOLENT CRIMINALS

Many other horrendous crimes would fall into children’s court under Taylor’s bill, violent crimes against people and property. Simple examples suffice, like 2002CF007045: convicted at age 17 of Armed Robbery with Threat of Force here in Milwaukee. He was previously convicted THREE times as an adult before that conviction – for resisting an officer, driving a vehicle without the owner’s permission, and battery. He was later convicted of drunk driving under age 21.

INCREDIBLE

I could go on, but you get the picture. Armed robbery, arson, assault, auto theft, (and I’m only in the A’s), etc. - all 17-year-olds charged with crimes would be initially labeled as children under Senator Taylor’s proposal. Often these offenders already have criminal records. Often, after their time is served, they go on to commit another crime. Senator Taylor wants to treat these criminals as children and put them in detention for a shorter period. To keep our communities safe, they need to be treated as adults and sentenced to the prison time they deserve.

Justice Louis Butler seems to have a press release a day on Wispolitics touting a new endorsement by a labor union. These unions include major public employees unions: Madison Teachers, Inc., American Federation of State, County, and Municipal Employees, Retired Professional Fire Fighters of Wisconsin, Wisconsin Education Association Council, American Federation of Teachers, Teamsters, Milwaukee Professional Firefighters Association, Wisconsin AFL-CIO, etc.

In addition to endorsements, they have showered down cash upon his campaign as well: AFT Wisconsin, $8,625.00, Madison Teachers Inc, $8,625.00, AFSCME 40 & 48, $8,625.00, WI AFL-CIO $5,000.00, Winnebagoland Uniserv PAC (teachers) $3,000.00, American Federation of Teachers #212 $2,500.00, Capital Area Uniserv North (teachers) $2,000.00, United Northeast Educators $2,000.00, Southwest Education Association $1,500.00, Kettle Moraine Uniserv Co (teachers) $1,000.00, Lakewood Uniserv Council (teachers) $1,000.00, Northern Tier UniServ-PAC (teachers) $1,000.00, UW-Madison Teacher Assistants $1,000.00, Kenosha Education Association $500.00, Milwaukee Professional Firefighters 215 $500.00.

It’s fair to ask what’s at stake for public employee labor unions in this election, that they come down so heavily for Justice Butler. Here are four Court of Appeals decisions from the last six months that would draw intense interest from the unions if they went to the Wisconsin Supreme Court:

Madison Metropolitan School Dist. v. Madison Teachers, Inc., 2008 WL 249087:

Debra Tichenor is employed by the District as a special education teacher. During a previous disciplinary proceeding, Tichenor provided her union-appointed attorney with a copy of an individualized education program (IEP) for a student. The District issued Tichenor a written reprimand for releasing a student record to an unauthorized third party without written consent or authorization alleging the action was a violation of two board policies. Tichenor’s union, Madison Teachers, Inc., filed a grievance, which eventually went to arbitration. The arbitrator concluded that Tichenor was permitted to provide her union representative with the IEP during the grievance process, and therefore the District violated the collective bargaining agreement by imposing discipline without just cause.

Loth v. City of Milwaukee, 2007 WL 4530816:

Albert Loth appeals from the circuit court order granting the City of Milwaukee summary judgment, dismissing his complaint, and denying his motion for summary judgment declaring the City had breached its contract with him when it adopted a resolution reducing the retirement benefits to which he would have been entitled at retirement under the earlier resolution. … [Reversed] Loth is entitled to summary judgment based on the City’s breach of its obligation to pay his health insurance premiums according to the terms of the 1973 ordinance and related City publications referred to herein, after he retired until he reached age sixty-five.

Brown County v. WI Employment Relations Com’n 742 N.W.2d 916:

The County argues it had sole discretion, notwithstanding its collective bargaining agreement, to decide whether to terminate Vetter for commission of a crime “substantially related to the care of a client.” See Wis. Stat. § 50.065(5m).FN1 It also argues the Commission lacks authority to resolve the dispute. We conclude that the County’s discretion is limited by its collective bargaining agreement, and the Commission has authority to resolve the matter subject to the usual judicial review.

Helgeland v. State of Wisconsin, ongoing
Does it violate equal protection for the state to deny health care benefits to the domestic partners of homosexual state employees when it provides those benefits to the married spouses of heterosexual state employees?

In addition to the cases that could be before the Court soon, the public employee labor unions know that Justice Butler has been their friend on past cases as well, such as Solie v. Employee Trust Funds Board, 2005 WI 42. In a case brought by WEAC, 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). This assertion is nothing more than “judicial fiat” in Justice Wilcox’s view (70). Perhaps it is no wonder, then, that WEAC is up with a TV ad supporting Justice Butler.

Obviously unions support Butler, and obviously the business community is generally supporting Judge Gableman. My point is simply this: these cases have a major impact on the taxpayers of the State of Wisconsin. Look at the parties in the 4 Court of Appeals cases above - Madison Schools, City of Milwaukee, Brown County, State of Wisconsin: If the union wins in each of those cases, it will cost the taxpayers of this state more money. We already have out of control fringe benefits for public employees - do we really want a justice hand-picked by the public employee unions deciding statutory interpretation cases like Solie on the scope of those benefits?

The Wisconsin Supreme Court released its decision in Shannon v. Progressive Northern Mutual Insurance today. I haven’t had a chance to read the opinion (it was unanimous, with a concurrence by the Chief), but I noted this at the top of the sheet:

An amicus curiae brief was filed by William C. Gleisner, III and Law Offices of William C. Gleisner, Milwaukee; Linda V. Meagher and Habush Habush & Rottier, S.C., Waukesha; and Lora A. Kaelber and End, Hierseman & Crane, LLC, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers.

Mr. Gleiser and WATL, presumably, were siding with the plaintiffs in the case against the insurance company. The Court of Appeals had issued an unpublished opinion for the plaintiffs. The Supreme Court reversed, in an opinion by J. Crooks:

We reverse the decision of the court of appeals. Doing so, we hold that, based on public policy grounds, a claim for common-law negligence cannot be maintained against social hosts, such as the Niesens, who allegedly were aware that minors on their property were consuming alcohol, but who did not provide the alcohol, when an underage guest later allegedly caused an alcohol-related car accident. To hold otherwise would be a significant extension of common-law liability. If that is to occur, in this instance, it should be done by the legislature, not by this court.

In her concurrence, the Chief Justice writes, “I write further to express my reservations about the court of appeals’ sketchy analysis of Wis. Stat. § 125.07(1)(a)3.” — Sketchy, in a WI S.C. opinion — that’s classic!

Justice Louis Butler’s response to the Milwaukee Journal Sentinel questionnaire starts off with liberal pablum that screams activist:

I first became a lawyer, then a judge, and now a Justice, because I am dedicated to achieving equal justice for all people, including the downtrodden and those who lack resources. I embrace the sentiment that injustice to anyone is intolerable, and that everyone should have access to the courts and a right to be heard.

We’ve heard this line thirce in two weeks, which means he actually thinks he believes it:

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 made a similar comment last week to the Milwaukee Bar Association forum (and to the MJS ed board):

My philosophy has been the same for years, to uphold the Constitution, to hold wrongdoers accountable, interpret and apply the law. I have a framework, I start with the facts of the case, the United States Constitution, the Wisconsin Constitution, state statute, and when I interpret state statutes, I am a textualist in the mold of Hugo Black or Antonin Scalia. I look at our common law when the legislature has not spoken, and I look at precedent, and then I put all of that to the facts of the case. The goal in every single case is justice, that’s why we’re there.

A textualist like Scalia? Were decisions he joined like In Re Jerrell CJ texualist? Or his own opinion in Solie or Kolupar?

Finally, in several fora Justice Butler has described his method of approaching as such: “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.”

I find it interesting that he identifies the US Constitution as his first source of law, then the Wisconsin Constitution. That’s interesting because he relies on the Wisconsin Constitution for major decisions in Knapp and Dubose, for instance, when the US Supreme Court had already interpreted the US Constitution in like cases. Or how about this quote from McGrew:

[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]

Hopefully tomorrow I can tackle his purported respect for precedent, and also the GBPG endorsement and Butler’s comments on Thomas and Judicial Ideology to the MJS Editorial Board.