April Foolscap in Wisconsin

By April 1, 2008Briefly Legal

Today is election day in Wisconsin, with a high-profile race for a seat on the state Supreme Court between sitting Justice Louis Butler, appointed in 2004 by Democratic Gov. Mike Doyle, and his challenger, Mike Gableman, a former Ashland County district attorney and current Burnett County judge.

The race has boiled down to your basic contest between an activist judge in Butler and a more rule-of-law oriented aspirant, Gableman. Wisconsin Manufacturers and Commerce has been active in support of Gableman, tired of the Wisconsin Supreme Court’s practice of expanding liability out of an ill-defined sense of “fairness.” The Wall Street Journal’s John Fund described a defining example in a column last year:

Mr. Butler soon became the fulcrum for a new majority that overturned the court’s own precedents and long-standing deference to the legislature’s policy choices. In 2005, he authored the infamous Thomas decision. The court ruled that a plaintiff — who claimed he had eaten paint chips containing lead pigment — could sue paint manufacturers and lead pigment suppliers if he could prove they had done business in Wisconsin, even if the pigments were not in the paint chips he claimed to have eaten. The ruling adopted a “risk contribution” theory of liability that allows a person who cannot determine which company caused his injuries to sue a variety of companies.

One of the Thomas dissenters argued that “the defendants . . . 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.” Another dissenter wrote that the case made it “nearly impossible for paint companies to defend themselves or, frankly, for plaintiffs to lose.”

You can see where manufacturers would prefer another, more restrained justice than Butler.

Unfortunately, as sometimes happens in Wisconsin’s self-regarding political class, the very act of criticism has been deemed somehow improper, the intrusion of (gasp!) politics into the judicial system. The Wall Street Journal editorialized on this dynamic and the activities of the supposedly nonpartisan Wisconsin Judicial Integrity Commission last week in “Wisconsin Bar Brawl.” The conclusion is one we share:

Judicial elections aren’t always enlightening, but they are a natural public reaction when courts usurp the power of legislatures. They can also be a check on a legal elite who think they should dominate the bench. Justice Butler picked this election fight when he and four colleagues decided, by judicial fiat, to make Wisconsin a national mecca for the trial bar.

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