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Friday, June 19, 2009

Buying Wisconsin’s Supreme Court

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What’s the point of spending millions of dollars to buy Wisconsin Supreme Court justices if those justices aren’t allowed to rule in your favor?

The U.S. Supreme Court may have robbed Wisconsin Manufacturers & Commerce (WMC), the state’s largest business lobby, of further profits from its purchase of the Wisconsin Supreme Court.

It’s a good thing for WMC that the state court already granted state corporations hundreds of millions of dollars in tax refunds before the U.S. Supreme Court got around to requiring state courts to be ethical.

In a 5-4 decision last week, the U.S. Supreme Court said judges must recuse themselves from participating in cases where one of the parties involved has spent huge amounts of money to get those judges elected. Writing for the majority, Justice Anthony Kennedy said the decision resulted from “extraordinary” circumstances in a West Virginia case where a corporate owner spent $3 million to elect a Court of Appeals judge who then reversed a $50 million judgment against the businessman’s company.

But anyone who has been paying attention to recent elections to the Wisconsin Supreme Court knows there is nothing particularly extraordinary about those circumstances. That’s business as usual in Wisconsin.

In 2007 and 2008, WMC spent more than $4 million to elect two ethically challenged judges—Annette Ziegler and Michael Gableman—to the Wisconsin Supreme Court. Within months of her election, Ziegler paid enormous dividends to the WMC by writing a majority decision granting $265 million in tax refunds to state businesses in a case that was one of the corporate lobby’s highest priorities.

Like the appeals court judge in West Virginia, Ziegler saw no reason to recuse herself even with the obvious conflict of interest of deciding in favor of an organization that spent millions of dollars to elect her to the court.

But then, Ziegler’s lack of judicial ethics is a matter of public record.

Last year, her colleagues reprimanded her for failing to recuse herself as a Washington County judge from cases favoring a bank where her husband was on the board of directors. And she failed to disclose that she and her husband had received a $3 million loan from the bank.

She also had no ethical qualms about sitting in judgment of cases involving companies in which she owned stock.

Continuing the pattern of paying millions of dollars to put unethical judges on the Supreme Court, WMC spent more than $2 million a year ago to elect Michael Gableman over Justice Louis Butler.

The Wisconsin Judicial Commission has charged Gableman with running a deceptive ad in which he knowingly lied about Butler. Like Ziegler, Gableman could face discipline from his colleagues on the Supreme Court.

After electing Ziegler and Gableman, the WMC sat out this spring’s election in which Chief Justice Shirley Abrahamson was reelected. Many thought the primary reason the WMC sat out the Abrahamson election was that the business lobby already had a majority on the court with the election of Ziegler and Gableman. It recalled John F. Kennedy’s joke back in 1960 that his millionaire father told him not to buy a single vote more than necessary.

But now the U.S. Supreme Court could prevent the WMC from reaping untold millions of dollars more in judgments from the best court money can buy.

What good does it do the WMC to buy seats on the Supreme Court for unethical judges like Ziegler and Gableman if those justices are required to recuse themselves from the cases that really matter, namely ones that put money into the pockets of members of WMC?

The Wisconsin Realtors Association already is complaining that it didn’t get its money’s worth—and it contributed far less to Ziegler’s election.

The Realtors Association objected when Ziegler recused herself from a case involving it after opposing lawyers for the town of West Point challenged Ziegler’s participation because the association had contributed $8,625 to Ziegler’s campaign. Without Ziegler, the Realtors lost on a tie vote.

Threatening big business’ best-laid plans to buy the Wisconsin Supreme Court, the U.S. Supreme Court decision comes along at a time when the state court is planning hearings this fall to rewrite its rules about when judges must recuse themselves from cases.

It also comes at a time when another case important to business is headed for the Wisconsin Supreme Court.

Last week, Milwaukee County Circuit Judge Thomas Cooper threw out as unconstitutional an ordinance requiring Milwaukee businesses to provide at least some sick leave to employees, commonsense direct legislation that was approved by 70% of the voters in a referendum.

But local judges don’t decide constitutionality. The Wisconsin Supreme Court does. And if the justices bought and paid for by business have to recuse themselves, we could even get a decision based on the Constitution.

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