One Step Forward Toward a Fair, Impartial and Independent Supreme Court

By Mark L. Thomsen

Over the past several years campaigns for the Wisconsin Supreme Court have been expensive and often downright dirty.  That is why it is good news that the Impartial Justice Bill has finally passed the Legislature and is heading for the Governor’s desk for his signature.

Our courts need to be fair, impartial and independent, and the people of Wisconsin should have full faith in the integrity of the Supreme Court.  The Impartial Justice bill begins this process by creating a system of public financing for these critical races.  While some might not believe it is optimal for state dollars to be spent on such elections, the alternative – allowing partisan politics and multimillion-dollar campaigns into the courtroom – is far worse. 

Public financing of judicial campaigns for the Wisconsin Supreme Court is an important step in maintaining and even restoring the public confidence in the fairness and integrity of the elected justices.

At the same time the Legislature was passing the Impartial Justice legislation the Wisconsin Supreme Court considered several petitions on when justices should withdraw from cases. 

Currently judges disqualify themselves in cases for several reasons: previously served as a lawyer or judge in the case, has a significant economic interest in the outcome of the matter, is closely related to a party or lawyer in the proceeding or was a material witness concerning the matter. 

Another reason for disqualification is when the judge determines he or she cannot act impartially.  A new wrinkle has been added to the question of impartiality – the role of campaign contributions to a judicial candidate. 

The U.S. Supreme Court recently weighed in on this matter last June in Caperton v. A.T. Massey Coal Co., Inc.  This is the case where a jury assessed a $50 million jury verdict against the defendant company.  While the case was on appeal the chairman, chief executive officer and president of the defendant company spent more than $3 million in getting a justice elected to the West Virginia Supreme Court.

The $3 million in contributions were more than the total amount spent by all other supporters and three times the amount spent by the justice’s own campaign committee. It was also $1 million more than the total amount spent by the campaign committees of both candidates combined.

The new justice did not disqualify himself from the case after being requested to do so and was part of the majority that reversed the jury verdict.  The U.S. Supreme Court found the justice’s participation in the case violated the Due Process Clause. 

The Wisconsin Supreme Court adopted two petitions that said legal campaign contributions – contributions to a justice’s campaign fund, independent expenditure and issues advocacy – alone do not require justices’ to disqualify themselves from a case.

The contribution limits to Supreme Court justices is well known – $10,000 per individual.  However, there is no limit to what can be spent on independent expenditure or issue advocacy campaigns.  Furthermore, no one knows who is contributing to an issue advocacy campaign. 

If one looks at the Caperton case, no one was accused of making an illegal campaign contribution.  It was the size and the disproportionate impact of the contributions within the total campaign that caused the U.S. Supreme Court to decide the Due Process Clause was violated.

In Wisconsin, various organizations have participated in issue advocacy campaigns during the 2007 and 2008 Supreme Court races.  The public does not know who contributes to issue ads.   The groups have never disclosed who made the contributions to them or how much was contributed.  There is no way to know if a party with a case on appeal is contributing millions of dollars to this effort.  This has potential to undermine confidence in our judicial system.

The Wisconsin Supreme Court’s adoption of these rules does set some guidelines on impartiality.  But it still leaves open questions regarding due process concerns raised by Caperton.  Furthermore, there is no standard for when a justice should be disqualified for not being impartial.  The Court should adopt a standard that is objective, transparent and understandable to parties, attorneys and the public. 

The Wisconsin Legislature should also help the Court by requiring the reporting of contributions to issue ad campaigns.

Mark L. Thomsen is the President of the Wisconsin Association for Justice, the state’s largest statewide voluntary bar organization. WAJ is committed to a fair and effective justice system that ensures justice for all, not just the privileged few. 

 

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