Special Committee on Judicial Discipline and Recusal

One important, but perhaps underreported, development in our legal world is the work of the Legislature’s Special Committee on Judicial Discipline and Recusal. The committee grew out of a request from Justice Patrick Crooks for the legislature to consider amendments to statutes governing judicial discipline and disqualification. Both issues have been hot button items in the Wisconsin Supreme Court in the wake of hotly contested and exceedingly well financed campaigns for seats on the Court in the 2007 and 2008 election cycles. The committee, consisting of legislators and public members, is charged with studying both issues and, if appropriate, make recommendations to the legislature.

Yesterday, I had the privilege of being one of nine invited guests to testify before the Committee. Four of the nine witnesses were sitting Justices on the Court – Chief Justice Abrahamson and Justices Bradley, Crooks and Roggensack. The hearing can be viewed here. I am the last (or as I would prefer to say “clean up”) witness.

Yesterday’s hearing had to do with recusal although some of the speakers addressed matters of discipline, largely addressing issues concerning the deadlock in the Gableman matter and how that might be avoided in the future. Much of the discussion on recusal centered on whether the legislature should adopt an objective standard (presumably other than, as I pointed out, the one announced in Caperton v. A.T. Massey Coal Co.), how that standard should be enforced and what it should be.

More to follow.

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Who Cares If No One Cares About the Wisconsin Supreme Court?

On the website of the Wisconsin Policy Research Institute (WPRI), former Journal Sentinel columnist Mike Nichols asks: “Does anyone still care about the [Wisconsin] Supreme Court?”

He believes the answer is not really, and his evidence for this position is that the number of petitions for review of Court of Appeals decisions has dropped by about thirty percent since 2000. He acknowledges that several explanations for this drop are possible, but says the “precipitous” drop in the last several years “lends credence to the possibility, as former Justice William Bablitch hypothesized in an interview with me earlier this year, ‘that the acrimony on the court’” is to blame. According to Nichols, “This was not the attitude ten years ago.”

Actually, as Justice Bablitch ought to know, the acrimony on the court was just this bad (and just as public) ten years ago.  

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How Toxic is Thomas?

Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.

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