Uppity Wisconsin
Making Wisconsin Progressive Again
US Supreme Court speaks to Ziegler, Gableman, and WMC
Tue, 06/09/2009 - 11:40am | xoff
The U.S. Supreme Court ruled Monday that Wisconsin Justices Annette Ziegler and Michael Gableman must disqualify themselves from hearing any cases involving Wisconsin Manufacturers and Commerce.
That is an oversimplification, but not by much. Here is how the NY Times summarized the decision in a front page story today:
Elected judges must disqualify themselves from cases involving people who spent exceptionally large sums to put them on the bench, the Supreme Court ruled on Monday in a 5-to-4 decision.The decision, the first to say the Constitution’s due process clause has a role to play in policing the role of money in judicial elections, ordered the chief justice of the West Virginia Supreme Court to recuse himself from a $50 million case against a coal company whose chief executive had spent $3 million to elect him.
The facts of the case are strikingly similar to what has happened in Wisconsin in the last three years. Here, WMC spent more than $2-million in 2007 to elect Ziegler to the State Supreme Court, and did the same in 2008 to elect Gableman.
Ziegler, who had a track record of ignoring conflicts of interest as a circuit judge, ignored calls to recuse herself from a case which WMC called a top priority, involving the Menasha Corp. and the question of whether corporations must pay sales tax on customized software.
Ziegler not only participated and cast the deciding vote in the 4-3 decision, but wrote the opinion -- worth an estimated $350-million to WMC, which filed an amicus brief in the case, and its members. Not a bad return on a $2-million investment.
As an aside, the lawyer who could have asked Ziegler to recuse herself from the case was Atty. Gen.J. B. Van Hollen. But WMC spent $2.5-million to get Van Hollen elected, so he didn't make a peep.
There's another case, Virnich and Moores, in which a decision is expected soon, described as "a case that could rewrite corporate law in Wisconsin."
At issue is whether business owners can enrich themselves at the expense of others, including workers and creditors, who have a stake in the business. In plain language, it's whether they can pocket all the money personally, see the business fail, and screw everyone else out of what is due them. WMC filed a brief favoring the business owners at the appeals court stage, but has been quiet at the Supreme Court level so as not to remind people of the huge conflict Ziegler and Gableman ignored when they participated in hearing oral arguments in January, despite an effort to get them to recuse themselves.
Despite its obvious application to Wisconsin, the U.S. Supreme Court decision got scant notice in the state's press. The Journal Sentinel offered a story that mentioned Ziegler and the Menasha case, and said the state court is considering some new rules, but not much more, and nothing on the pending Virnich and Moores case.
Meanwhile, WisPolitics includes this:
Attorney Mike Wittenwyler, who closely follows election and campaign laws, said the federal ruling will give new ammunition to parties before the state Supreme Court seeking to force a justice off a case. But the difficulty could be finding an example as extreme as the West Virginia case in which one person spent $3 million on a campaign.Wittenwyler also noted Chief Justice John Roberts, writing for the minority in the 5-4 decision, listed 40 questions he would raise in developing a standard for recusal, all factors that the state justices will have to consider as they ponder developing regulations for state courts.
To say that Wittenwyler "follows election and campaign laws" is like saying that Rahm Emmanuel follows politics. Wittenwyler is a specialist in campaign finance law who represents a broad spectrum of clients -- including WMC, whom he should have billed for that quote.
Hard to find an example as extreme as the West Virginia case where someone spent $3-million to elect a supreme court justice? Anyone who closely follows elections and campaign laws should be able to cite a couple of examples in Wisconsin. Wittenwyler must be laughing all the way to the bank.
As to the 40 questions Justice Roberts posed, the key word is "minority." His questions, which got a mention in the 24th paragraph of the NY Times story, are hardly the issue.
You don't need to be a lawyer or a judge to understand that WMC may have wasted more than $4-million to elect two justices who won't be able to repay the favor by ruling on their cases. Of course, there's already that $350-million from the Menasha case, so maybe the investment has already paid for itself.
If this decision doesn't produce some tough, clear rules about when Wisconsin judges must disqualify themselves, there can be no acceptable excuse.
Tags:
I think you are misreading, or at least projecting, the ruling. It is going to have little if any impact on Wisconsin court campaigns. Wisconsin already mandates what the WV ruling does, judges need to recuse themselves from a case when one of the parties is a donor, but does nothing when the party spent independently of the campaign.
The WV case involved an executive who donated $1000 to the justice's campaign and spent $3-million on an independent media campaign through a 527. Then the justice ruled in the exec's favor on a big case.
That is almost exactly parallel to what happened when the WMC spent $2-million plus on Ziegler as an independent expenditure, after which she wrote the opinion favoring WMC's position, which was worth something in the neighborhood of $300-million to those on WMC's side of the case.
reads a Wisconsin Democracy Campaign headline on the 2008 SC race.
See
http://www.wisdc.org/pr072208.php and
http://www.wisdc.org/hijackjustice08.php
"... Leading the phony issue ad groups in the 2008 race was Wisconsin Manufacturers & Commerce, the state’s largest business group which spent nearly $1.8 million mostly on television ads that supported Gableman or disparaged Butler. This follows an estimated $2.2 million they spent in the 2007 Supreme Court race to back Annette Ziegler, who won...."
As Justice kennedy writes: "... We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. ..."
http://supct.law.cornell.edu/supct/html/08-22.ZO.html
Placing the judge on the case certainly includes electing her/him to the bench to hear the case.
at Caperton v. A.T. Massey Coal, et al. (08-22).
These are circumstances “in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Withrow, 421 U. S., at 47. ...
The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. See Tumey, 273 U. S., at 532; Mayberry, 400 U. S., at 465–466; Lavoie, 475 U. S., at 825. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U. S., at 47.
We turn to the influence at issue in this case. Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case. Cf. Mayberry, supra, at 465 (“It is, of course, not every attack on a judge that disqualifies him from sitting”); Lavoie, supra, at 825–826 (some pecuniary interests are “ ‘too remote and insubstantial’ ”). We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
Can we get politicians to not vote on projects supported by their financial backers? Such as the Trial Lawyers, Teachers Unions and Indian Tribes? Or would this not apply to the Legislature?
How about, instead of WMC promoting 'their' candidate, they just spend a million or so 'supporting' a judge they know will vote against them, just to force the judge to recuse (one less vote against is just as good as a vote for).
What am I missing here? Or do you just really hate WMC?