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.