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Tuesday, August 5, 2008

Ex-Wisconsin justice: 'A seat on the court was bought'

From our sister publication in Wisconsin, the Wisconsin Law Journal:

On his first day as a former justice of the Wisconsin Supreme Court, Justice Louis B. Butler, Jr., addressed the National Association of Criminal Defense Lawyers, which was holding its 50th annual convention in Milwaukee on Aug. 1.

Discussing the loss of his seat to Justice Michael Gableman in April, for the first time since the election, Butler laid the blame with Wisconsin Manufacturers & Commerce. He said the election sent a chilling message to judges: “Do not vote against business interests; and if you do, avoid having represented criminal defendants at any time in your career.”

Butler traced his defeat to three civil cases decided in 2005: the Miller Park case, which lowered the threshold for awarding punitive damages; the Ferdon case, which struck down the cap on medical malpractice damages for pain and suffering; and Thomas v. Mallett, which applied the risk contribution theory of liability to manufacturers of lead paint.

After those decisions, Butler stated, “A powerful special interest group, WMC, decided that I had to go. Because I sometimes ruled in favor of consumers, that was unacceptable.”He was targeted, he said, “simply because he did not support [business interests] 100 percent of the time.”

Noting that neither Justice Ann Walsh Bradley, nor Justice N. Patrick Crooks, were opposed, even though they had been in the majority in those cases, Butler posited that it was because neither had a criminal defense background.

Butler said, “WMC has no interest in criminal cases. But I could not be attacked because of the liability rulings. But I could be attacked, because I had the audacity to represent criminal defendants at one point in my career. I could easily be attacked for doing what I was supposed to do. WMC therefore recruited and found a candidate who had a prosecutorial background to contrast with his, and ran ads unfairly attacking him for representing a defendant on an appeal, falsely suggesting that it resulted in a child being raped.”

By using his earlier work defending criminal defendants as a means of affecting outcomes in civil cases, Butler claimed, “A seat on the court was bought. … They will continue to go around the country, purchasing judgeships one at a time.”


Anonymous said...

Hmmm...could that happen here? Or, has it? How many justices has Pawlenty made to the Minnesota Supreme Court? How many are 'friendly' to his campaign contributors? If anyone has any information on this it would be greatly appreciated.

Peter said...

I could not care less about Wisconsin politics and judicial election. However, this and other pieces are used to show us just how "bad" things could get here in Minnesota if we fail to enact whatever "reforms" Brian Melendez and the bar elites have decided are necessary.

On this particular issue, Minnesota Lawyer has been uncharacteristically one-sided, mirroring bar publications like Bench and Bar. There is no shortage of essays and reports on how "bad" it has gotten in other states and how we need to take action in Minnesota. What is missing is objective analysis of the issue.

Why was it that Governor Ventura's judicial appointments were, for the most part, praised? Does it have anything to do with the fact that he has no political allies and therefore could not appoint one? What does that say about other governors' appointments? Is every incumbent the most qualified person to be on the bench?

Especially in the area of tort law, are appellate courts sometimes in a position to make law, rather than interpret law? If so, should a lawmaking body be treated differently in an election than candidates for legislature?

Why would the rulings in the Miller Park, Ferndon, and Mallett cases be controversial? Do we accept the self-serving statement about "sometimes ruled in favor of consumers" without question or comment?

Any sour grapes on the part of Mr. Butler?

Could a story be written about filibusters and borking of federal judicial nominees?

Mark Cohen, editor said...


This was just posted for discussion. We have run pieces that have provided some more analysis, e.g. click here.

There are no easy answers to this stuff -- and I suspect most folks on both sides would acknowledge that.

Anonymous said...

How many justices has Governonr Pawlenty appointed to the Minnesota Supreme Court?

Mark Cohen, editor said...

Gov. Pawlenty has now appointed four justices to the seven-justice court.

The Pawlenty appointees are: Chief Justice Eric Magnuson, Justice G. Barry Anderson, Justice Christopher Dietzen and Justice Lorie Gildea.

One of those justices -- Lorie Gildea -- is up for election in the current election cycle.

Anonymous said...

How many of them worked at the Governor's old law firm?

Anonymous said...

only 1, the chief!

Anonymous said...

While only the Chief worked with the Governor at the good ol' firm, didn't the Chief (then acting as the Governor's aide on the topic) recommend the other 3 to the State's high court? Does anyong find this incestual?

Anonymous said...

Reminds me of Deliverance

bobby said...

I don't know much about three of them, but if anyone here is disparaging Eric Magnuson's abilities, qualifications, and general support among people who regularly deal with law - if there's a suggestion that he got in because he worked at Rider Bennett with Pawlenty - well, you'd better go check out his history, and figure out why so many lawyers over the past fifteen years knew his name and thought well of him.

As to the merits of the cases the former justice cites as having caused his downfall - well, the ruling in Thomas v. Mallett alone should've gotten him and a few friends into other lines of work. A short quote from the dissent:

"The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Even though the injury in this case is tragic, the plaintiff cannot demonstrate that he was lead poisoned as a result of white lead carbonate, much less the type of white lead carbonate produced by any of the respective defendants. More importantly, he cannot prove when the supposed white lead carbonate that allegedly poisoned him was manufactured or applied to the houses in which he was supposedly lead poisoned. However, none of these facts seem to matter to the majority."

Anonymous said...

And the majority of the court disagreed with the above interpretation. ...

More to the point, the campaign waged by business interests did not center on a reasonable debate around decisions such as this, but instead took a deceptive route. To get Butler out of office, many of their ads portrayed him as "soft on crime" for having had the audacity as a lawyer to do his job and defend individuals charged with serious crimes ...