Wisconsin Supreme Court – Page 23 – Marquette University Law School Faculty Blog

Memo To The New Justices: That’s Not How We Do Things On The Court

Post author:Edward A. Fallone
Post published:November 25, 2009
Post category:Business Regulation Judges & Judicial Process Wisconsin Supreme Court

At last month’s Conference on the Wisconsin Supreme Court, the panel discussing the Court’s business law cases during the 2008-2009 term began with an observation and a question. The panel noted that there were three business law cases in which the votes of the Justices split on a 5-2 basis. These cases were Farmer’s Automobile Ins. Assn. v. Union Pacific Ry., 2009 WI 73; Krier v. Vilione, 2009 WI 45; and Star Direct, Inc. v. Dal Pra, 2009 WI 76. The question our panel asked was “Is this 5-2 split just a coincidence, or is something else going on?”

I cannot speak for my co-panelists, Tom Shriner and Leonard Leverson, and these comments should not be interpreted to reflect their views. However, I have concluded that, taken together, the three dissents filed by Justices Abrahamson and Bradley in the aforementioned cases can be read as an clear admonishment to their two newest colleagues on the Wisconsin Supreme Court.

The message that comes through to me, loud and clear, is one of disapproval of Justices Ziegler and Gableman for failing to adhere to the unwritten standards of professionalism that apply to the highest court in the State. It’s as if these two members of the “old guard” feel it necessary to remind their colleagues that they now sit on a Supreme Court, and that there are certain things that one just doesn’t do as a Supreme Court Justice. That the concerns of the dissenters have arisen in the context of three cases involving business law disputes is nothing more than a coincidence.

What Is a Lie and Is It Constitutionally Protected?

Post author:Richard M. Esenberg
Post published:November 17, 2009
Post category:First Amendment Legal Ethics Wisconsin Supreme Court

I think that the three judge panel’s decision to recommend dismissal of ethics charges against Justice Michael Gableman is the right outcome. I doubt that we really want tribunals passing upon the truth and falsity of campaign speech – even for judges.

There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for “finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that “the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence. It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal. We don’t, in common discourse, isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding seems itself to be a function of his willingness to apply the language of that Code in a more expansive way.

Public Financing of Supreme Court Races: The Legislature Whacks A Mole

Post author:Richard M. Esenberg
Post published:November 9, 2009
Post category:First Amendment Wisconsin Supreme Court

In a forthcoming article in the Harvard Journal of Law & Public Policy, I argue ( the metaphor is not original with me) that campaign finance reform is like a game of Whac-A-Mole™ in which the moles always win.

The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent “pro-criminal” or displaying photos of he sex predators that he did not send away for a long enough time.

The bill doesn’t restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These “matching” public funds are capped at three times the public financing benefit, e.g, $900,000 for the general.