For one, they had lunch together. And for another, they decided to spend a day in each other’s districts, trying to get a better grasp of the perspective of people who lived different lifestyles and had different views from the people in their own districts. Schultz represents a strongly rural state Senate district, while Cullen’s district, which includes Beloit, is more oriented toward cities and factories.

Schultz and Cullen agreed on quite a few things: The legislative process in Madison had become too divisive. Good policy requires the support of at least half the people of the state and not just people on one side. Both parties were guilty of pushing through momentous decisions without significant support from the other party – in the case of the Republicans in Wisconsin, it was the collective bargaining bill that triggered an uproar in Madison earlier this year, in the case of the Democrats in Washington, it was the health care bill passed in 2010.

The two decided they should work together on an idea that could change things. They settled on trying to reform the way state Supreme Court justices are selected so that process is less partisan and less subject to influence from special interests.

And they decided to go on the road around Wisconsin with what they labeled their common ground tour.

The tour brought them on Friday to the Law School’s Eckstein Hall for an “On the Issues” session with Mike Gousha, distinguished fellow in law and public policy. “Are you howling at the moon?” Gousha asked them. Will people within political circles listen to what Schlutz and Cullen are saying?

Cullen responded that a lot of people in the Democratic Senate caucus think “I just don’t get it” and that he is too old-fashioned. He agreed there are people in the Legislature “who wake up in the morning to have a olitical war.”

Schultz said he believed there were at least a few other Republicans in the Senate who agreed that there was a need for more “functional” legislation. “I call myself a passionate pragmatist, because I’m not a milquetoast,” Schultz said. “The challenges that face this nation and this state need all of us.”

“We believe we are taking the correct course,” Cullen said of the common ground effort. But, he added, “to restore some sanity to Wisconsin politics may not be so easy.” For one thing, he said, “there’s not big centrist money” to support campaigns by people such as him. The big money  is on both the right and the left.

One of the results of Wisconsin’s episodes in all-out partisanship this year is that Schultz and Cullen – and maybe a few others — have gained influence as many people have reacted adversely to heavily partisan approaches. In the aftermath of the August recall elections, the Republicans are down from 19 to 17 members in the 33-member Senate, giving them a one-vote majority. If a matter splits strongly along party lines, one defection among the Republicans stops the action. Schultz downplays his potential role as that one person who needs to be kept on board, but that remains a possibility to take seriously.

The upshot, Cullen and Schultz suggested, is that some major upcoming issues, such as proposals for overhauling the state’s rules on mining or legislation related to venture capital investing, are likely to have a more moderate and even bipartisan tone. Gov. Scott Walker, who was adamant about not compromising during the collective bargaining tumult, talks often now about wanting everyone at the table on issues such as education reform.

Cullen said the altered atmosphere in the Capitol did not mean things that were done earlier this year, particularly the Act 10 revision of labor union powers, were going to get undone now.

Cullen and Schultz are in general agreement that the way Supreme Court justices are selected needs to be revamped so that merit is the main factor. They suggest a process in which a non-partisan panel screens people who want to join the court and recommends a list to the governor, who selects one to serve. Schultz likes the idea of having justices, at a later point, face an election in which people would vote whether to give the justice another term, but without a specific opponent on the ballot at the same time. Cullen is not sold on that idea.

But they each think, as Schultz put it, “it’s time for a citizen movement to take back our courts.”  And they’re eager to talk about it, both together and with people around the state, in hopes of coming with a practical plan that could be adopted with wide support.

Which, of course, if you listen to partisans on both sides, is a pursuit that will not succeed.

The “On the Issues” session can be viewed by clicking here.

Judge Sumi’s opinion is straight forward.  The logic of her reasoning is spelled out in the topic headings contained in the opinion’s table of contents.  I paraphrase:

It is within the scope of judicial responsibility to review legislative action for compliance with statutory and constitutional requirements.  The Open Meetings Law presumes that all governmental meetings will be open and subject to notice requirements.  Legislative proceedings are not exempted from the requirements of the Open Meetings Law.  Therefore the legislature must comply with the same Open Meeting rules that apply to other governmental entities.  The evidence at trial demonstrated that the March 9, 2011 meeting did not comply with the Open Meetings Law.  The Open Meetings Law authorizes the court to void actions undertaken in violation of the law’s terms, where the court finds that the public interest does not counsel in favor of sustaining the action.  There is no public interest in favor of sustaining the act taken here, especially since the provisions of 2011 Wisconsin Act 10 can easily be re-enacted by the legislature if it so wishes (provided that any legislative re-enactment complies with the requirements of the Open Meetings Law).

Reading through this summary, one might wonder what all the fuss is about.  Each step in Judge Sumi’s reasoning is supported by citations to statutory language, precedent, and/or evidence adduced at trial. None of the legal principles underlying Judge Sumi’s opinion are novel or controversial.  In fact, for evidence that her opinion is nothing more than mainstream legal analysis, one need look no further than to the multiple citations to Marbury v. Madison, that most “bedrock” of all bedrock cases. 

A great deal of sloppy lawyering has been put forth over the past several weeks in an attempt to create the impression that Judge Sumi is an out of control jurist.  Some of the bill’s advocates are guilty of cherry picking statutory provisions that they deem helpful, while conveniently ignoring contrary provisions.  Others have purported to rely upon sixty year old Wisconsin Supreme Court precedent, without first considering whether later statutory changes and constitutional amendments have rendered that precedent obsolete.  Dicta from the more recent Milwaukee Journal-Sentinel case was relied upon by others in order to support the idea that the Legislative Reference Bureau had the authority to “publish” laws, however these same partisans ignored the holding of that same case when it proved inconvenient on the question of the jurisdiction of the court.  Some advocates appeared willing to sacrifice basic principles of Administrative Law, if so doing would advance their argument that the law had been “published.”

In today’s newspaper we read that the State Attorney General’s Office has even gone so far as to allege that Judge Sumi has exhibited a “bias” in this matter on the grounds that she submitted a brief to the Wisconsin Supreme Court in defense of her exercise of jurisdiction in this case.  It is exceedingly odd to argue that a judge’s defense of her decision to excercise jurisdiction is somehow a reflection of bias towards the merits of a case.  I was a corporate litigator in a previous life, and I certainly understand the hard-nosed litigator’s attitude of “Just Win, Baby.”  However, the Attorney General’s Office is not a private litigator who is entitled to employ whatever aggressive tactics might advance the interests of his client.  To the contrary, the duty of the Attorney General’s Office is to “do justice,” not to do whatever it takes.

For doing her job, Judge Maryann Sumi has been subjected to specious attacks on her character and competence.  Every sitting judge in Wisconsin must be watching this case with great interest.  Every judge in the state has to be wondering, ”Will I be subjected to the same attacks, simply if I get assigned a case that requires the two political branches to comply with the rule of law ?”

As a member of the State Bar of Wisconsin, I am an officer of the court.  I commend Judge Sumi for doing her job, for staying focused on the issues before her, and for ignoring the personal attacks and distractions that have been directed her way.  She has done her job, and done it well.  Now the focus turns to the Wisconsin Supreme Court.  I hope that they stay focused on their job as well.

First: As a news reporter, I’ve never covered a race for a Supreme Court seat. I was struck by how awkward the debate is, compared to the plain old partisan races I’ve covered fairly often. It’s similar to confirmation hearings for U.S. Supreme Court justices: Basically, if you have something substantial to say, you can’t and shouldn’t say it. You can’t say what you would do with any potential upcoming issues. Frequently, you can’t (or won’t) comment on past actions, although Prosser did talk about some past cases and said he was glad to run on his record. So you end up standing there, saying repeatedly that you are independent and nonpartisan and will judge each case fairly and with an open mind. Which both Kloppenburg and Prosser did. But it is very clear that Prosser is being backed by conservatives and Republican-oriented groups and Kloppenburg is being backed by liberals and Democratic-leaning groups. Do all these people and groups know something the candidates don’t know? Are they wrong? Or is this a curious exercise in avoiding talking about the issues, even though everyone seems to know what you’d say if you did?

Two: I’ve been at some testy and tense debates and joint appearances by candidates in various races, but this one was way up the list, if it wasn’t the champion on my personal list.

The acrimonious atmosphere that has categorized the recent work (and public relations) of the Wisconsin Supreme Court has certainly carried over into this race. While both candidates said they were the right choice for people who wanted to see the court move forward with more collegiality, there was not much goodwill flowing between the two. Kloppenburg said Prosser had denigrated some justices and his conduct had made relations worse on the court (she did not mention the Milwaukee Journal Sentinel story that reported he had insulted Chief Justice Shirley Abrahamson, but she almost certainly didn’t need to). Prosser said Kloppenburg had let partisanship into her campaign and wanted to turn the election into a referendum on Gov. Scott Walker. He also said that Kloppenburg is “incredibly envious” of his record helping people as a prosecutor, while slighting her record in environmental work with the attorney general’s office as involving “the length of (boat) docks.” Kloppenburg responded, “I have improved the quality of life for communities around the state.”

Three: Prosser made what I would say is the most amazing statement by a candidate I have ever heard in person. He said Kloppenburg had left statements from supporters on her campaign’s Facebook page that were inappropriate, including this one: “Stop the turd, vote Kloppenburg.” He said, “Am I turd?”  He was in front of a bank of cameras. Moments like that can – and I suspect will – live forever on Youtube.  

Four: My bet is that if you entered the event with doubts in your mind about whether statewide election is a good way to pick Supreme Court justices, you didn’t leave there with your doubts allayed. On the other hand, you did get some significant glimpses of both candidates for use in guiding your vote on April 5. And if you weren’t there, you can watch the Wisconsin Eye tape of the session here.

The case I was in the jury pool for was State v. Curtis Forbes, a first-degree intentional homicide case being tried in Columbia County with a Jefferson County jury. A few weeks earlier, a Columbia County jury heard a Jefferson County case involving two counts of first-degree intentional homicide.  This was reported in the press as an intentional “jury swap” between the two counties.

In the last week of September I received a bulky envelope from the Jefferson County Clerk of Courts, which contained some initial instructions to potential jurors (including a notice that selected jurors would be sequestered in a hotel in Portage for up to two weeks), an order from Columbia County Judge Alan White to not discuss the case with anyone or research the case until released from jury duty, and a lengthy juror questionnaire, which covered the basic questions that would be asked in the early stages of voir dire.

We were instructed to send the questionnaires back within about two weeks, and to appear at the Jefferson County courthouse on Nov. 8^th with two weeks worth of luggage packed. That morning about 116 of us crammed the foyer and entrance to the Courthouse, standing in line for the security screening. The Jefferson County sheriff’s deputies staffing the metal detector were exceptionally well prepared and courteous, yet maintained a level of seriousness to the process that seemed appropriate.

Jefferson County has about 81,000 residents, according to the 2009 U.S. Census estimate, and around 62,000 residents over the age of 18. This means that almost 1 in 500 Jefferson County residents over the age of 18 were in the jury pool for State v. Curtis Forbes that morning! In all of 2009, 1437 Jefferson County residents were summoned to jury duty.

We gathered in the meeting room of the Jefferson County Board of Supervisors, and quickly filled the room to capacity, with chairs lining the walls and taking up every available space (with an area for the luggage people had brought in with them). The pool matched the demographics of Jefferson County generally, about an even split between men and women, overwhelmingly (perhaps entirely) white, ages ranging from early 20s to mid 70s, with the majority of people appearing to be between 30 and 59 years old. To this point the mood in the room was subdued, even serious. There had been some small talk among the potential jurors, all done in whispers and quiet voices.

An employee of the Clerk of Courts office stepped to a microphone and addressed us. She explained that we would be paid $20 for our service for half of a day, $40 for a full day, and that we would receive $.485 per mile for mileage reimbursement. She explained to us that a typical jury pool in Jefferson County is at most 30-40 people, and that we were randomly selected from DOT records.

The bailiff in charge of supervising the jury pool spoke to us next. He informed us that the Jefferson County police would be ticketing people who had expired meters or who left their cars parked overnight and towing cars after 72 hours. With the possibility of being sequestered for two weeks on everyone’s mind, this caused a fair amount of commotion in the room, and was made worse when we were informed that no one would be allowed to leave the jury pool without an escort from a Sheriff’s deputy or a member of the Clerk of Court’s staff.

The bailiff then started a juror orientation video featuring Jefferson County Circuit Court Judge Randy Koschnick. The video stressed that jury duty is a “high calling,” an “obligation of citizenship,” and among the “highest duties imposed on any citizen”. The video gave an outline of a jury trial, and ended with Judge Koschnick explaining that while jury pool members may be dreading service, he has “had many people ask to serve again” after the experience.

After the video ended the bailiff spoke to us again, and told us that “in five years of doing this no one has ever asked me that, so I don’t believe that last part.”

The bailiff then began what felt like a rehearsed comedy routine about selling a book called “101 Ways to Get Out of Jury Duty.” In a relatively lighthearted way he informs the jury pool that he is really looking forward to being transferred back to the jail in 4 months, because the people in jail generally do what he tells them to. The bailiff also told us a story about a juror who repeatedly appeared to jury duty drunk.

The room became much more animated after the bailiff spoke. People were openly talking with others about what an inconvenience having to serve on the jury would be, and worries about whether they might end up with a parking ticket, with more than one juror noticing that a parking ticket costs more than jurors would be paid for a half-day of jury service.

Finally, a member of the Clerk of Court’s staff returned with a list of about 24 randomly drawn names, these were the people to be included in the first jury panel. My name was not called, and the people that did get called left to be seated in the courtroom. It was about 9:30 in the morning at this point, and we learned that we would all be sitting in the courtroom for the entire voir dire process. We were instructed to line up single file, and the bailiffs and court staff would escort us to the courtroom.

I had been on jury duty for about an hour to this point and already had some general questions about the jury process, and I include them here to spur discussion:

1. To what extent can one good-natured but irreverent individual undermine the seriousness of the jury process? Can and should anything be done about this?
2. In a county like Jefferson with a small population, what can be done to prepare the many people involved in organizing large jury trials for addressing the logistical problems that are bound to arise?
3. If I were a lawyer for one of the sides in this case, how would I use what I knew about the jurors’ morning during voir dire?

As the day progressed I would add several more questions to the above list.

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the “legal parent.” The court justified its decision on the basis that Wisconsin law defines a “parent” as only the biological or adoptive parent. Wendy is neither of these and thus, at least under the law, not a parent at all.

This leads to questions that are more cultural than legal (though still legal, yes). How do we define parent? How do we define family? The Supreme Court has spoken to these questions, though not in the terms at issue here.

In Stanley v. Illinois, a man lost his parental rights because he was not married to his children’s mother. Stanley and his girlfriend lived together on and off for 18 years and had three children together. When she died, Illinois law commanded the children become wards of the state because their father was not married to their mother. His actual fitness to be a parent was irrelevant. (Familiar yet?) The United States Supreme Court held that the Illinois law violated Stanley’s right to due process of law by taking his children without a hearing to determine his fitness. The law allowed Illinois to circumvent the neglect hearing process because Stanley was not married to his children’s mother. The Court wrote,

Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.

Stanley, 405 U.S. 645, 656-57 (1972). In many ways the Stanley case is distinguishable and probably even unreliable—the case is, after all, nearing it’s 40^th birthday and has some questionable history (though it remains good law).  But the Court’s reasoning does suggest that “past formalities” and “presumption” cannot be the basis for denying an unwed father his parental rights (which the Court has protected stringently). Is that really so different from saying that because of the presumption that a same-sex couple is illegitimate, unfit, or other similar reasons, the non-biological or non-adoptive parent is not a parent at all? Really, that’s what Illinois was saying to Stanley by operating on the presumption that most—if not all—unwed fathers are unfit: that he’s not a parent at all.

Though “past formalities” dictate a certain family structure, one ought to be careful in assuming the modern family structure is a long-standing phenomenon; it’s not. It’s relatively new in the span of American history and newer still in the span of human history. The mother, father, 2.5 children structure simply wasn’t practical before the Industrial Revolution allowed it to be so.*  I’m not suggesting that people didn’t live this way, only that the word“family” and those responsible for childcare encompassed a much wider breadth of people than those who fit this pattern. Nuclear, insular families are a rather modern phenomenon, though we’ve latched on to that picture and understanding with formidable might.

In any case, if we allow “past formalities” to rule rather than paying attention to “present realities,” our law fails to keep up with our society. Like Illinois presumed Stanley was an unfit father because he was unmarried, there exists a presumption that same-sex couples are inherently unfit to raise children and that the non-biological/ adoptive parent isn’t a parent at all.  Wendy, then, isn’t just unfit to be a parent; she’s not a parent at all. And unfortunately, the people who suffer most from this unjust presumption will be her children.

*For discussion of construction of the modern family structure in America, see Elaine Tyler May, Homeward Bound: American Families in the Cold War Era (Basic Books 2008).

But one label they are proud of is mother and daughter, and that was clear Thursday during an “On the Issues with Mike Gousha” session at the Law School. The two are believed to be the only mother and daughter to serve on the bench at the same time in Wisconsin history, Gousha said.

“You’ve just been an incredible role model for me,” Judge Brostrom told her mother. Justice Roggensack said she never intentionally put her daughter on the path to being a judge, but she agreed she was very pleased when Bostrom narrowly won election in 2009.

When Gousha asked how the two of them react to labels such as “conservative” or “liberal” when it comes to describing judges, Justice Roggensack said, “I think it’s a lazy definition.” The use of labels reflects the high degree of partisanship of the times, especially when it comes to elections. She said labels are useful in negative campaigning, which is the way campaigns “can hit hardest fastest.”

Most cases that come before the state Supreme Court don’t fit on a liberal-conservative axis, she said.

“Was the contract breached? Is that a liberal or conservative issue?” she asked. She said if people want to know who she is, they should read her opinions, which she aims to write in terms that are clear to a wide audience.

Judge Brostrom said, “I think the labels miss reality. People are complicated.” She said she considers her views to be liberal on some issues and conservative on others. She said she also sees her mother’s views as being more complex than the labels that are frequently used in pegging the high court’s seven justices. (Roggensack is generally labeled a conservative, for whatever that label is worth.)

Justice Roggensack said she does not regard the Supreme Court as divided on personal lines, but there are deep divisions among the justices about the role of the court. “We do like each other as people,” she said of the justices. “We are not always fond of the positions one another takes. “ She declined to discuss the matter specifically, but said the court will be issuing an opinion soon that will shed light on the differing philosophies.

Both said they favor electing judges and justices, even with the problems elections bring because of campaign tactics and controversies around campaign donations.

“I believe in democracy, I believe in people weighing in,” Judge Brostrom said.

Justice Roggensack said that if judicial choices were made by appointment, using recommendations from an expert committee, the selections would be limited frequently to people who were insiders in legal circles. “I wouldn’t have been on anyone’s long list, much less anyone’s short list,” she said. She was elected to the Supreme Court in 2003, after serving as a state appeals court judge.

Justice Roggensack said you can get excellent judges both by election and by appointment, and you can get mediocre judges through either process.

Both mother and daughter said that when they are shaping their rulings and decisions, they do not think about implications those actions might have on their re-election chances. Judge Brostrom said, “If I’m not going to do this job honestly, I don’t want the job.”

Asked by Gousha if it made a difference that women were in judicial positions now much more frequently and that four of the seven Supreme Court justices are women, Justice Roggensack said that differences on the high court do not fall along gender lines. But, she said, “I think women perhaps problem-solve a little differently than men do.”

My colleague, Peter Rofes, is certainly correct to note that, in some sense, this demonstrates that a “harsh dichotomy between so-called elector systems and appointment doesn’t really exist.”

But, while I agree that the dichotomy may not be harsh, it remains significant. While the Journal Sentinel is correct to note that challenges to sitting judges are rare, they are more frequent (although still probably not very frequent) when the incumbent is a sitting judge who has not yet faced the electorate. I supervised a study of that a number of years ago in defending a challenge to Wisconsin’s system of electing judges under the Voting Rights Act. My sense is that things haven’t changed much.

This is where the dichotomy reasserts itself and does so in at least three ways. First, governors know that their appointees are subject to electoral challenge and the electability of prospective judges is a consideration in choosing appointees. Second, although incumbency in and of itself confers certain advantages, it is not as strong for new appointees. Every new judge knows that securing an uncontested election is not a matter of happenstance and, in many (if not most) cases, must be made to happen. The first order of business is to line up support and fundraising to dissuade potential challengers. Every judge knows that the absence of a challenger often requires hard work. Third, while challenges are not frequent, they are not unknown and they do happen. Appointed judges get beat. Everyone knows this and that has – for better or worse – an “accountability” impact on newly appointed incumbents.

So, if the study were to be used to argue that we don’t “really” elect judges anyway and so we should accept  Sandra Day O’Connor’s invitation  to drop our electoral system, I think that the situation of the ground is far more nuanced. In any event, there is, rightly or wrongly, a strong public commitment to electing judges. I do not see our system changing any time soon.

Although it is beyond the scope of the Journal Sentinel’s study, I think it would be interesting to consider why so many circuit court vacancies occur. We don’t see half of other public offices becoming open during the incumbent’s term of office.

Part of the answer, I think, would be that new branches have been created during this period so the number of vacancies is less than half. Still, the vacancy rate would remain well above what we see for other elected offices.

Is their just more career dissatisfaction among circuit court judges leading to more resignations? Is it the length of a judge’s term? Does the fact of gubernatorial appointment create incentives for sitting judges to time their retirement in order to create an opportunity for lawyers of the same party?

Cross posted at Shark and Shepherd

Currently, the legislature is seriously considering public financing
of judicial elections (a topic on which Prof. Esenberg has written
extensively).  Rep. Gottlieb is offering his amendment as an alternative to public financing as it comes to the floor in the near future. Rep. Fred Kessler (D-Milwaukee) offered his own judicial selection amendment earlier this session. Both Gottlieb and Kessler differ from the typical “Missouri Plan” merit selection system. Under Kessler’s plan, the governor would appoint a justice with the “advice and consent” of a majority of the State Senate for a ten-year term. As that term is coming up for expiration, a justice who wishes to continue may do so unless at least thirteen senators reject the proposed renewal. Under Gottlieb’s plan, the governor must select his nominee from current circuit court and appellate judges who have served at least eight years on the bench. The nominee would then need to be confirmed to the ten-year term by a twenty-vote (3/5) majority in the state senate.  At the end of the ten-year term, and each subsequent ten-year term he or she desires, the justice would have to run in a retention election.  Neither the Kessler nor the Gottlieb plan would change judicial selection for the court of appeals or circuit courts.

Let’s start by stating what’s good about both of these proposals.

First, they’re constitutional amendments. In some states, it has been argued that a “retention election” fulfills a constitutional requirement to elect justices, and therefore a merit selection system may replace traditional contested elections by statute.  As a recent article in State Court Docket Watch (disclosure: I am employed by The Federalist Society, publisher of SCDW) points out, the history of efforts to change judicial selection in Wisconsin is that they have all been proposed amendments. Thus, if this change is to be made, it should be done by constitutional amendment, and these proposals recognize that reality.

Second, both of these proposals reject a flawed, elite/insider commission system in favor of a more politically accountable gubernatorial appointment model (although still less politically accountable than direct contested election by the people).

My own sense of the lay of the political land is that while the
Gottlieb and Kessler amendments are both thoughtful proposals to
change judicial selection, and have the added benefit of being free,
the major support for reform currently lines up behind public
financing. The Court endorsed it in a public letter last year, the major election reform groups are behind it, the various legislative committees are moving on it, and it can be done now by statute. Of course, there’s no guarantee it will be enacted, and even if it is, that it will work (I personally am sympathetic to many of the arguments that I expect will be made in Prof. Esenberg’s forthcoming HJLPP article).

In related news, the Supreme Court of Wisconsin will consider similar
questions next week when it takes up the Wisconsin Manufacturers & Commerce, Wisconsin Realtors Association, and Wisconsin League of Women Voters petitions for a rule regarding campaign contributions and judicial recusal. We’ll see many of these same issues aired in those briefs and discussions, and I’d be interested if any of the professors, either
the con law folks or the legal ethics folks, would blog on those three
petitions. Additionally, readers who are interested in these questions
should plan to attend Plenary Panel 1 at the upcoming MULS Conference on the Wisconsin Supreme Court.

The three primary methods of judicial selection in the United States are appointment (either by the executive or the legislature), election, and merit selection.  Appointment is viewed as the best method for promoting judicial independence.  Election is viewed as the best method for promoting judicial accountability.  And merit selection attempts to split the difference by having the executive make an appointment from a pool of candidates selected by representatives of the public.

When the issue of judicial selection comes up in a public forum, the focus of the discussion is typically on how to select judges to a state’s highest court.  Wisconsin experienced a public debate on the selection of Supreme Court Justices last spring because of the content of the campaigning and the influx of special-interest group spending during the Supreme Court elections of 2007 and 2008.  Judge Diane Sykes summarized the public debate that appeared in Wisconsin’s major newspapers in her speech published in the most recent issue of the Marquette Law Review.

Wisconsin’s system of nonpartisan elections is designed to promote judicial accountability by requiring sitting judges to take part in an election at the end of a judicial term. Wisconsin Circuit Court and Court of Appeals judges serve six-year terms. Wisconsin Supreme Court Justices serve ten-year terms.

In the past two years, Wisconsin’s Supreme Court elections have raised the question of whether electing justices makes them too accountable. The primary fear is that well-funded campaigns and significant special-interest group spending could result in the appearance that cases are decided to directly benefit a justice’s campaign contributors or a supportive special-interest group. In other words, the primary fear is that the justices would be perceived as too accountable — too responsive to public opinion.

But the situation is the opposite for the selection of judges to Wisconsin’s lower courts, the Circuit Court and the Court of Appeals. Instead of a fear that elections result in a Supreme Court that is too accountable, at these levels the fear should be that elections result in a judiciary that is not accountable enough. Elections that in theory increase judicial accountability actually result in lower accountability because, quite simply, most judges run uncontested. If judges run uncontested, the election cannot be viewed as increasing accountability — responsiveness to public opinion.  And because a decrease in accountability results in an increase in independence — immunity from extra-legal pressures — a system that is designed to promote accountability in practice promotes independence.  To support this theory, I reviewed Wisconsin’s judicial election results from 2000 through 2008 to determine how often an incumbent judge faces an opponent in a contested election.

From 2000 to 2008, there have been 369 Circuit Court elections in Wisconsin. In only 33 elections, or about nine percent of all Circuit Court elections, did the incumbent judge face a challenger. And in only eight elections, or about two percent of all Circuit Court elections, did the challenger unseat the incumbent judge.

From 2000 to 2008, there have been 26 Court of Appeals elections in Wisconsin. In only three elections, or about 11.5 percent of all Court of Appeals elections, did the incumbent judge face a challenger. And in only one election, or about four percent of all Court of Appeals elections, did the challenger unseat the incumbent judge. In fact, in 2007, an incumbent judge filed a notice of non-candidacy and the “election” for the open seat consisted of one candidate running for the open seat.

I did not review Wisconsin’s election results to disparage the members of the Wisconsin judiciary or question any judge’s fitness for office. Instead, I hope to highlight the disparity between what judicial elections are designed to promote — judicial accountability — and what Wisconsin’s elections appear to actually achieve — judicial independence. Because so few lower court judicial elections are actually contested, the judiciary is isolated from accountability much like a judiciary selected by an appointment system. When judicial selection again becomes a hot topic of public debate, it is important that any proposed reforms to Wisconsin’s election system extend to the selection of judges at all levels of Wisconsin’s judiciary and not just the Supreme Court level.

Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates.

This represents a sea change in the nature of judicial campaigns and may further dissuade lawyers from running for judge. Judge Crabb at least implicity recognized that — observing that the restriction may have had the “quaint” intent of protecting judges from the indignity of dialing for dollars -  but found this insufficient to justify the restriction. (Caution: following the link will take you to some rather raw language.)

But posited state interests in preventing actual or apparent corruption have been far more likely to justify restrictions on campaign conduct, and restrictions on contributions have been far more likely to be sustained.  It is not clear to me that prohibiting personal solicitation represents the same type of restriction on communication as a prohibition on identifying one’s partisan affiliation (or, as in White, one’s position on certain issues of public interest).  Nor am I sure that it is unreasonable for a state to conclude that personal solicitation of funds by a judge or judicial officer represents a substantial risk of actual or apparent corruption that is not presented by solicitation through a judicial committee.

* An homage to one of the greatest television series of all time.

Cross posted at Shark and Shepherd.

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant.

Tom is correct that this is the standard the majority announced. But is it the right standard? The majority cites no authority for it, and the cases (from outside Wisconsin) seem to have been based on the perceptions of a reasonable observer and not a reasonable observer in the position of the defendant.

More fundamentally, should the question be whether, to use the majority’s language, “there is a risk” that a defendant or a generic observer “might” infer that the judge improperly considered race?

Judge Brennan, in her dissent, comes at it in a different way, citing Wisconsin law that places upon the defendant the burden of proving that an improper factor influenced the sentence. Now, of course, one way to prove that is through the judge’s remarks. But here’s the thing: Not one of the three judges concluded that Judge Wall improperly considered race. Even the majority says that “[h]aving examined the entire sentencing transcript, we are satisfied that the trial court did not harbor bias against Harris because of his race.”

The majority seems to want to enforce a certain sentencing etiquette and I understand what’s behind that. There is resentment in the black community for the justice system and, while we can disagree about the extent to which it is justified or whether it is counterproductive, it ought to be seen as a reality that requires a response.

But sentencing judges are exposed to a parade of defendants who, and, again, we can argue about why, live irresponsible lives that are destructive of themselves and their families. It is reasonable to expect them to, from time to time, comment on that fact. If, in a particular venue, a disproportionate number of those defendants are African-American, it may be possible, as was done here, to tease those remarks and to place upon them a negative construction that might suggest racial bias. But won’t too much sensitivity lead to too many false positives and inefficiency? Where, as here. everyone seems to agree that race was not taken into account by the sentencing judge, is there really any value in vacating the sentence because the judge’s remarks might be susceptible to being taken in the wrong way?

Cross posted at Shark and Shepherd

As a result of those, I began to think again about the past judicial election, in which Butler lost his seat on the Wisconsin Supreme Court by about 20,000 votes to Michael Gableman. To summarize for those who didn’t follow this story in the news, Gableman attacked Butler with a flood of negative advertising, including one ad in which he suggested that Butler found a loophole that allowed a rapist to go free and molest another child. This was effective in getting Gableman the victory, but the “loophole” ad in particular has since been proven to be misleading, resulting in the appointment of a panel to review whether sanctions and/or impeachment is necessary. Of course, as we’ve seen in this presidential election, attack ads are nothing new. But somehow it feels different when it’s a judicial election, and particularly so when the attacks are as misleading as these were. And yet, at the same time, it’s almost shocking in that it doesn’t surprise me anymore (and I’m the same person who was heartbroken when the first McCain attack ads started rolling!). Hence, it begs revisiting the old question: is it better to appoint judges or to elect them?

There have been a wealth of studies done on this subject; a quick Google search on the topic turned up academic papers on the matter here and here. The general consensus in these papers can be summed up in arguably my favorite quote from the first link:

In particular, electoral systems would seem to attract politicians, while appointment systems are more likely to attract professionals. Politicians want to satisfy the voting public, and this might mean deciding cases expeditiously and in great number. Professionals are more concerned about their reputation among other lawyers and judges, and are more interested in delivering well-crafted opinions that these others will admire.

Now, not all elected judges aren’t partisan hacks or ideological puppets. In fact, while lawyers will inevitably complain about this judge being too lenient or that judge being too strict, I’ve never heard any accusations that any of the judges I’ve seen are simply fulfilling some political mandate. Furthermore, there’s a lot to be said for judicial accountability to some degree; if a judge is giving disproportionately lenient or harsh sentences, or is acting with disregard for rules of evidence or procedure, I believe that that judge should be forced to answer for his or her decisions.

But despite all that, the fact that it is now noteworthy when a judge makes the right decisions even when they are unpopular speaks volumes about the fatal flaw of an elected judiciary. When judges need to be repeatedly re-elected, we’re going to see them err toward the side that bolsters their future candidacy, even when it’s not the right decision. After all, no one ever lost an election for being “tough on crime,” and to do otherwise in our era of instant information is tantamount to political suicide. But the other — and perhaps far worse — problem is that situations like the Butler-Gableman election are going to inevitably sour some brilliant legal minds from seeking a place on a judiciary that would benefit greatly from their presence. How many public defenders are going to try for seats on the bench when they see what’s happened to Butler? Could Supreme Court justices like Louis Brandeis and Thurgood Marshall have survived the election gauntlet? If Earl Warren hadn’t been life-appointed, would he have made it through the election cycle past Brown v. Board of Education without Eisenhower trying to throw him off the bench?

The greatest decisions of our nation’s history have come when a judge has stood up and said, “I don’t care what the people say; this is wrong, and we need to do something about it.” But our system makes the judiciary a “king of the hill” game, where judges need to glad-hand and tout the things people want to hear in order to get on the bench, then need to do enough to keep the people happy so that they can stay there. If we ask the people to vote on judges — at least when it comes to positions like the Wisconsin Supreme Court — we have to expect the kind of partisan maneuvering that is present in any other election. And where does that leave us? With a brilliant and eloquent legal mind off the bench, a new justice being sworn in while facing potential impeachment, and a black eye for the Wisconsin judiciary.

Beth Hanan, managing member of Gass Weber Mullins and Vice Chair of the Wisconsin Judicial Council, kindly offered the following summary of the hearing and the court’s decision to amend the rule.  (Please note that these are Beth’s own, individual comments and are not the comments or thoughts of the Judicial Council.)

Taking a cautious step into a national trend, yesterday the Wisconsin Supreme Court voted 6:1 to permit citation of unpublished authored appellate decisions, with several limitations.  Amended Wis. Stat. (Rule) s. 809.23(3), like Fed. R. App. P. 32.1, will be prospective only.  This means that parties and courts will be able to cite those unpublished authored opinions which are released on or after the planned effective date of the amended rule, July 1, 2009.  When parties cite such opinions, they will have to file and serve copies of the opinions.  The rule specifically will  provide that parties are not required to cite unpublished opinions.  Finally, the supreme court has ordered that a committee be formed to plan the roll out of the rule and devise a means of tracking its effectiveness or particular difficulties it may create.  Those statistics will be used by the court to review the rule three years after its adoption.

The Wisconsin Judicial Council had petitioned for a broad rule change, but the version approved by all but Justice Ann Walsh Bradley bears little resemblance to the Council’s proposal.  Nonetheless, on this fourth consideration of the topic, the court saw value in permitting citation of some unpublished opinions as persuasive authority.  Especially compelling was the testimony of Judge Richard Brown, chief judge of the Wisconsin Court of Appeals.  Judge Brown, speaking on his own behalf, described the pride of authorship taken by court of appeals judges who write authored opinions, whether in one-judge cases or three judge panels.  Several other practitioners and citizens spoke at the hearing, some in favor, some opposed.

Particularly because the rule is prospective only, observers expect it will be quite some time before the effect of the rule change can be quantified.  Limiting citability to authored opinions released after July 1, 2009 means that unpublished opinions from the first 30 years of the court of appeals will remain off-limits for most citation purposes.  Statistics kept by the court system may reveal whether court of appeals judges will change their approach to deciding which unpublished opinions will be authored.  Overall, it appears the court struck a careful balance by permitting expanded citation but with a measured start.

–Beth E. Hanan

 

I was wondering when a convenient but much lower-cost legal research service like this would become widely available.  It seemed inevitable that it would eventually happen.  I haven’t tried Fastcase yet, but I am going to do so and will follow up with my thoughts about the interface and more details about the coverage.   In the meantime, I would be very interested to hear from anyone who already has experience using the service.

When asked by Mike Gousha to assess the justice system, Judge White indicated that she thinks the system is well designed, but she also noted that the system is lacking in diversity, which limits its ability to properly mete out justice. As an illustration, it was shocking for me to learn that Judge White is the only African-American female judge in Wisconsin. Judge White gave good advice for the significant number of students in attendance. She told students to focus on being the best law students they can be by working hard, playing fair, being nice, and maintaining their integrity. Judge White also encouraged students when they enter the legal profession to help others–whether that be with their time, money, or ideas–as such service to others will bring them greater fulfillment and success. Finally, she underscored the importance of keeping a balanced life as an attorney. Mike Gousha summed up the feelings of the entire audience–indeed, the entire Marquette community–by telling Judge White how proud we all are to call her a Marquette lawyer.

Pursuant to state regulations and the policies of the nursing home, the husband sometimes closed the door to his wife’s private room during his frequent visits.  Staff at the nursing home suspected “sexually inappropriate interaction” between the husband and his wife on one of these occasions. 

After receiving an administrative waiver from the state and a search warrant (which proved to be defective), local law enforcement set up a hidden video camera, which recorded events in the wife’s room over a three-week period.  The defective search warrant prompted the suppression of the video recording, the court having concluded that the husband had a reasonable expectation of privacy during his visits with his wife.

The case is fascinating in terms of the decisions and decision-makers involved, including the husband, the staff of the nursing home, the state agency that granted the waiver, the law enforcement officers that undertook the investigation, the court that issued the warrant, and the prosecutor who charged a serious felony.  Of course, it is essential to recognize that the unconscious wife was not a decision-maker at any stage of this unfolding drama.

The decision-makers, other than the husband, apparently regarded the wife’s freedom from sex without express consent to be the paramount privacy interest in these circumstances.  The wife’s privacy interest in marital intimacy was apparently an inferior interest to this, in their view.  They thought she was being sexually abused, and they acted to protect her, even at her dignitary cost of being surreptitiously filmed having sex with her husband.

And the Wisconsin sexual assault statute lends some support to their view, although quite ambiguously so.  The statute says only that the “defendant shall not be presumed to be incapable [of sexual assault] because of marriage to the complainant.”  Lots of wiggle room in the phrase “shall not be presumed to be incapable.”  And of course the wife has not complained, but apparently she would be unable to do so, even if she wanted to. 

These various decision-makers, except the husband, were prepared to end the sexual relationship between these spouses because one of them was unconscious.  Should the state declare an end to marital sex in such circumstances?

The court heard and rejected a similar petition in 2003. Then, as now, widespread electronic availability of unpublished opinions led many attorneys to believe that they should be allowed to cite the opinions in their arguments. Opponents of the amendment have claimed that permitting citation of unpublished opinions will make research more burdensome and costly, though, as Beth Ermatinger Hanan has noted in her helpful article on this topic, no legal aid or public interest groups came out against (or in favor of) the rule change proposed in 2003. The current petition seems more likely to be granted than the 2003 petition was, because of the recent change in the federal rules to permit citation of unpublished opinions in the federal courts. Fed. R. App. P. 32.1.

As a teacher of legal writing and research, I have some sympathy for the arguments against permitting citation of unpublished opinions, because allowing citation of these sources will expand the scope of relevant research on so many Wisconsin issues. Still, I support the petition and hope that the court changes the rule. I think that in reality, many practitioners already read the relevant unpublished opinions on a topic, because many of them are useful research tools even though they cannot be cited. During my own appellate work, for example, occasionally I have found unpublished opinions to be valuable resources, containing interesting arguments supporting or challenging my own position, or helpfully summarizing some area of the law. In any case, they are widely available, easily accessible, and often read. Permitting their citation seems unlikely to greatly increase the research burden on Wisconsin attorneys.