In 1976, when Gerald Ford was President, Governor Pat Lucey appointed Shirley Abrahamson to the Wisconsin Supreme Court.

Justice Abrahamson has served the state a long - long time. Perhaps too long.

This week she gave a speech heavy on the need for the judical branch to be non-partisan and above all else non-political.

When approached after her elequent remarks by an admirer that congratulated her on the remarks she said:

“IT WAS JUST A SPEECH”.

Perhaps the voters of the great state of Wisconsin will Do The Right Thing and retire Justice Shirley Abrahamson in Spring of 2009.

Court elections give voters needed voice

By Maureen Martin

The polls had barely closed in Wisconsin ’s judicial election — in which the conservative beat the liberal for the second time in a row — when liberals began calling the election a “tragedy ” in a “broken ” judicial system and vowed to fix it. But the system ain ‘t broke. Actually, the election was a stellar example of democracy in action.

In the wake of the Supreme Court election April 1, some folks have argued we should stop electing judges.  Here’s a little history from the Wisconsin Bar Association.

Electing judges was considered a reform in 1846.  The first draft of the Wisconsin Constitution included a provision that all judges stand for
election.  That was an alternative to the appointment systems of the Eastern states.

 The first state constitution was rejected by voters due to a series of radical reforms for that era - women’s suffrage, a referendum for
African American Suffrage, a ban on banking, etc. The provision requiring an elected judiciary was included in the second draft of the Constitution in 1848 that was approved by the voters.So, judicial elections were not only envisioned by our founders, but those elections were a high priority.“Several of the reforms that the Barnburners succeeded in pushing through the convention, most notably a provision that the state’s judges
would be chosen by the people rather than the governor or legislature, generated little controversy.”Read the whole story at the link below.

Wisconsin’s Judicial Revolution

By JOHN FUND
April 5, 2008; Page A8

On Tuesday, for the first time in over four decades, Wisconsin voters turned out an incumbent justice of their state supreme court. The election showed that, given a clear choice, voters usually prefer a judicial conservative to one with an activist bent.

The Wisconsin Supreme Court certainly bent the rule of law over the past four years, as a 4-3 liberal majority became the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices. Thus the defeat of Justice Louis Butler at the hands of Burnett County Judge Michael Gableman has national implications. A recent study in the University of California-Davis Law Review found that Wisconsin is the eighth most-cited state supreme court by other judicial bodies. Its rulings play a larger role in shaping court decisions elsewhere than those of courts in states such as New York, Florida or Texas. In addition, 38 states elect all or part of their appellate-level judges by popular vote. Judge Butler’s defeat sends a signal that a judge who dramatically oversteps traditional boundaries can be brought to account.

When John Roberts was confirmed as Chief Justice of the U.S. Supreme Court in 2005, he noted “judges are like umpires. Umpires don’t make the rules, they apply them.” Most Americans agree, but the liberal majority on Wisconsin’s Supreme Court made so many suspect calls it seemed intent on rewriting the rules.

These calls began in 2004, immediately after Justice Diane Sykes stepped down to join a federal appeals court. Democratic Gov. Jim Doyle replaced her with Mr. Butler, a former Milwaukee judge and public defender who had lost to Ms. Sykes by a 2-1 margin in a nonpartisan race in 2000. Justice Butler soon wrote the infamous decision in Thomas v. Mallet, which created a guilty-until-proven-innocent approach to product liability. Wisconsin became the only state to adopt a “collective liability” theory in lead paint cases: Whether a company actually produced the lead paint that harmed a claimant was irrelevant to its to its guilt or innocence.

Then came Ferdon v. Wisconsin Patients, declaring unconstitutional the state’s cap on noneconomic damages in medical malpractice cases. It argued that the caps bore “no rational relationship to a legitimate government interest.” That the legislature had specifically passed the caps to make malpractice insurance “available and affordable,” and the caps worked. In 2004, the American Medical Association judged Wisconsin to be one of only six states not in a medical malpractice crisis. Marquette University law professor Rick Esenberg concluded that under the court’s reasoning in that case, “almost any law is subject to being struck down.”

The Wisconsin supreme court also expanded the U.S. Supreme Court’s interpretation of search and seizure law. Justice Butler wrote a majority opinion finding that the state constitution provided greater protection to suspected criminals, even though its wording virtually mirrored that of the U.S. Constitution. And so a bloody sweatshirt was ruled inadmissible in a murder case because the suspect told officers where it was before having his Miranda rights read to him.

Judge Sykes, now on the federal bench, felt so strongly about this decision she declared its reasoning “pure unvarnished result-orientation.” In a widely noted lecture at Marquette University, she lamented that the state supreme court had “manifested a cavalier, almost dismissive attitude toward the sources of legal interpretation generally thought to be most authoritative: the text, structure, and history of the constitution and laws, and the court’s own precedents.”

All of this meant that Louis Butler’s bid this year for a full 10-year term was bound to be contentious. Teacher unions, trial lawyers and Indian tribes (which had benefited from the court’s controversial expansion of casino gambling) poured money into third-party ads attacking Judge Gableman.

They were matched by business groups such as Wisconsin Manufacturers & Commerce, which ran ads noting that Justice Butler had earned the nickname “Loophole Louie” from fellow public defenders for winning reversals of his clients’ criminal convictions. Justice Butler made the mistake of embracing the nickname, claiming it was “affectionate.” Voters weren’t amused.In the wake of Justice Butler’s defeat, some liberals have declared that elections for the state’s supreme court should end, and its members be appointed by the governor. Tom Basting, president of the Wisconsin Bar, claims that “judges are different from other elected officials” and “that means some of the standards voters typically use when evaluating candidates don’t apply to judges.”The U.S. Supreme Court has rejected the distinction between judicial and legislative elections. In expanding the political free speech rights of judicial candidates, it declared in 2002 (Republican Party of Minnesota v. White) that completely separating the judiciary from the notion of “representative government” ignores the fact that state-court judges possess the power to “make” common law as well as to shape their state constitutions. Thus it is entirely appropriate for voters to have a say in whether that “immense power,” as the Supreme Court called it, will be used with restraint or abandon.

Wisconsin is in many ways a liberal state – it hasn’t voted Republican at the presidential level in decades – but its electorate showed this week that it favors judicial restraint over activism. This fall, voters in other states ranging from Louisiana to Michigan will face pivotal elections over what direction their own state supreme courts will go. Inevitably, a chorus will complain about the amount of money spent on those races by outside groups. No doubt the campaigns will be messy. But that’s a small price to pay to ensure that voters remain a check on the judiciary. If judges are umpires, the best way to ensure that they make the right calls is to bounce those who abuse their power from the game.

Mr. Fund is a columnist for WSJ.com.

State Chief Justice Says She’ll Run For Re-Election

Justice Says Recent Race Didn’t Impact Decision

MADISON, Wis. — Shirley Abrahamson, chief justice of the Wisconsin Supreme Court, said on Thursday morning she plans to run for re-election next year.

 Wall Street Journal

The Wisconsin ‘Tragedy’
April 3, 2008

Governor Jim Doyle called the result of Wisconsin’s state Supreme Court election “a tragedy.” It’s surprising to hear how little he thinks of his constituents, who had the sense to depose one of the court’s ultra-liberal justices and in the process helped toughen the standards for judicial accountability.

The election was a referendum on Louis Butler and the high court’s sharp political turn. Justice Butler was appointed by Governor Doyle, a Democrat, to fill a vacancy in 2004. This gave liberals a majority and Justice Butler proceeded to indulge the legal theories of the tort bar and activist left, for instance laying waste to Wisconsin’s medical malpractice laws and endorsing a “risk contribution” liability standard for lead paint that made the question of guilt or innocence irrelevant.

But Mr. Butler was required to stand for election, and on Tuesday he narrowly lost to district court Judge Michael Gableman. Mr. Gableman’s 10-year term will begin in August and probably tip the balance of the court to a 4-3 conservative majority.

Closely watched nationally, the election became a proxy war between third parties, with business interests lining up behind Mr. Gableman and trial lawyers and organized labor plumping for Mr. Butler. The hotly contested race supposedly shows the need for “merit selection” or public financing in judicial elections. But both sides leveraged roughly the same amount of money, and voters had a choice of two distinct legal philosophies.

The Wisconsin result should reverberate through the 39 states that elect some or all of their appellate-level judges. Mr. Butler is the first incumbent justice to be ousted in more than four decades there. A seat on the bench is not a sinecure, and justices who abuse or contort the law must sometimes answer for their actions.

Sloppy Kiss for the Trial Lawyers

Supreme Court Plants another Sloppy Wet Kiss on State Trial Bar

By Deb Jordahl

Friday, Wisconsin’s Supreme Court delivered another blow to Wisconsin business and industry.  In yet another far reaching 4-3 decision, allegedly written to protect Wisconsin consumers, the court has guaranteed higher costs for business and consumers and higher fees for trial attorneys.In Stuart v. Weisflog, the court determined that ANY business entity or person providing a home improvement could be sued for twice the amount of damages caused by simple negligence on the part of contractor. Prior to the case, litigants could be awarded double the amount of damages and court costs for damage caused by contractor misrepresentation.  Simple contractor negligence did not allow for double damages.   

The decision means the Stuarts and their attorneys will get $190,000 for $95,000 in actual damages awarded by the jury rather than the $118,750 under the old formula.  In the part of the decision addressing court costs, the majority really puckers up for the bar. 

According to the Milwaukee Journal Sentinel, “the trial court had awarded the couple’s lawyers a little more than $15,000 in fees based on a percentage of a lower damage award; the high court decision held that the fees should be based on the number of hours the lawyers worked multiplied by a reasonable hourly rate. At trial, the lawyers asked for more than $200,000. The Waukesha County trial court will have to reconsider attorney fees using the hours worked method based on the decision.”

Cha-ching!

Consider that home improvement is defined as everything from making an addition to your home to painting, landscaping and repairing driveways. Now ask yourself:  Will the Stuart decision encourage reluctant consumers to become private attorneys general and fight unfair trade practices which will deter future contractor malfeasance and promote the public good, as the majority asserts?

Or, will it place an unwarranted burden of possible criminal prosecution on the building trades and have far-reaching impacts throughout Wisconsin, as Justice Roggensack predicts in her dissent?[i]

Finally consider whether the lofty goal of turning reluctant consumers into attorneys general is an appropriate role for our state Supreme Court, because it sounds a bit like legislating from the bench to me.