*1 Attorneys fees in: Matter plaintiff, E. v. Action Wisconsin Grant Inc. Storms, Christopher defendants. Ott, Appellant, James Donohoo, R.
v. Christopher Ott, Inc. Wisconsin, Action Respondents-Petitioners.
Supreme Court July 2006AP396. Decided No. 110WI 480.)
(Also reported in 754 N.W.2d *2 5, 2008, this court CURIAM. On June 1. PER decision, of appeals' reversing issued a decision *3 re- a which, turn, judgment reversed circuit costs and R. Donohoo Attorney pay James quiring maintaining a defamation for and attorney filing fees v. to be Donohoo that was found frivolous. lawsuit 704, 56,WI 309 Wis. 2d 750 Inc., 2008 Action Wisconsin vote, aby case decided 4-3 with 739. The was N.W.2d in which opinion, the Bradley writing majority Justice Crooks, Abrahamson, Justice and Justice Chief Justice dissent, authored a joined. Roggensack Butler Justice joined. and Ziegler Justice Prosser Justice which filed a motion to vacate the 2. Donohoo has the of Justice Butler disqualification based on decision are disqualification for by alleged grounds law.1 The serial contribu- accepted campaign Justice Butler disclosing those from Donohoo's without opponent tions 2008, 26, for reconsid June Donohoo filed a motion On petitions disqualification for and Justice Butler's eration pledge to Donohoo, contributions in violation of his not appeared so; to do that Justice Butler at a fund raiser (PAC) political supporting for a action committee les- (LGBT) gay, transgender rights;2 bian, bisexual and that Justice Butler the obtained endorsement of one of attorneys the for Action Wisconsin. appli- 3. Based on the record before us and the by alleged law,
cable conclude we that the facts Donohoo support finding do a not that Justice Butler was dis- qualified by participating law from in this matter. Consequently, deny we Donohoo's motion.
I complaint ¶ 4. Donohoo filed a defamation on against behalf of Grant E. Storms Action Wisconsin and Christopher Ott, its executive director. Action Wiscon- complaint sin filed an answer to the and motion for attorney pursuant §§ costs and fees to Wis. Stat. 802.05 granted and 814.025. The circuit court the motion, prior filing concluding that the lawsuit Donohoo knew or should have known that neither the facts nor supported the law malice, claim of actual which convincing would to be have shown clear and evi- dence. The circuit court also concluded that Donohoo inquiry had failed to conduct a reasonable into filing claim before the lawsuit and that Donohoo contin- though ued even he lawsuit knew or should have July 7, for rehearing. "stipulation On he filed a *4 reconsideration, dismissal" of motion in for which he stipulated that the motion for untimely, reconsideration was and a to request petitions. withdraw the two This court dis- missed the for motion reconsideration as and untimely granted request petitions July 30, Donohoo's withdraw on 2008. 2 The materials attached in support to the memorandum of identify Donohoo's motion the PAC as the "Center Advocates Political Action Committee-Wisconsin LGBT PAC." "without reason- brought was known that the claim The of appeals in equity." able basis law in a engage did reason- reversed, Donohoo concluding and that there were into the facts and law inquiry able whether regarding material fact issues of disputed reversed, conclud- This court there actual malice. was determining did err circuit court not ing that the and frivolously commenced suit was defamation continued. asserts that he has discovered Donohoo now law by was disqualified that Justice Butler
evidence his in this because of financial case participating of the matter and in the outcome interest personal memorandum of court rules. The his violation supreme attaches a detailed of motion Donohoo's support significant. that Donohoo deems of events chronology editing, minor is as follows: chronology, That with suit as Circuit court dismisses Donohoo's 2/2/2006 represented Wisconsin frivolous. Action Attorneys Tamara Lester Pines and B. Packard. appeal. of Action files notice Donohoo
2/16/2006 Fair as its forms Wisconsin Wisconsin Marriage Pro- opposing PAC Wisconsin's Amendment the 2006 election. tection files costs. Pines motion frivolous 9/11/2006 pays Task Force Fair Wisconsin NGL 11/3/2006 $27,000 $5,298. Fair transfers Wisconsin remaining debt to Action and all its Wisconsin. $27,590.66 transfers Fair Wisconsin
12/16/2006 debt Action Wiscon- cash related sin, changes its Inc. Action Wisconsin to Fair Wisconsin. name *5 Appeals court reverses order and judg- 5/30/2007
ment. Pines files notice of appeal. intent 6/29/2007 Bock, Peter Fair Wisconsin board mem- 6/30/2007 ber, contributes $125 Butler's cam- paign. Butler does not disclose contribu- tion. Pines petition submits supreme
7/13/2007
court review. Pines contributes to Butler's cam- $300 7/23/2007
paign. speaks Butler at LGBT PAC garden 8/26/2007 party. Supreme accepts review.
9/11/2007 Packard, Tamara Action Wisconsin at- 10/9/2007 torney, files motion for miscellaneous relief. Oral arguments assigned.
10/15/2007 Butler announces he par- will advise all 11/28/2007 having
ties of accepted contributions. previously Butler announced that while he accept campaign would not contribu- parties tions from to cases before the court, accept he would contributions attorneys representing parties in cases, but that he would disclose those contributions. Media reports indicate immediately Butler did not disclose that attorney an appearing before the court sat on campaign his finance committee and contributed to his $500 election campaign. Butler sends letter advising parties of
12/3/2007
the Pines contribution. Fair Wisconsin board Irvings, Ruth *6 12/7/2007 to Butler's member, contributes $100 not disclose con- Butler does campaign. tribution. heard. argument Oral
1/15/2008 PAC issues endorse- LGBT Wisconsin 1/22/2008 Supreme Court. Butler for ment of $1,000 But- to Irvings Ruth contributes 1/28/2008 disclose Butler fails to campaign. ler contribution. prohibiting in decision Butler concurs
2/7/2008 legislators and municipal governments v. Helgeland joining parties from as 9, 2008 WI Wisconsin Municipalities, 1, a 1, N.W.2d case Wis. 2d 745 to employees relating brought by State State benefits. absentee bal- announces Fair Wisconsin
2/19/2008 race and supreme for lot drive for ballot effort announces absentee election. spring general interview in which he gives radio Butler 3/24/2008 garden at LGBT appearing talks about party. writes editorial Wis- Tamara Packard
3/25/2008 Quest endorsing Gay News consin supreme court. Butler for 27, 2007, that on November Donohoo asserts that Justice the Milwaukee Journal-Sentinel reported from parties refuse donations he would Butler stated accept that he would before the court but had cases and representing parties from attorneys donations Dono- litigants. those contributions would disclose 2007, Justice that on December acknowledges hoo disclosing Butler sent him a letter Lester Pines' $300 informing contribution and Donohoo that the contribu- impartiality tion would not affect Justice Butler's participation in his in the case.3 Donohoo did not raise objection participation to Justice Butler's in the case receiving after the letter. approximately
¶ 7. Donohoo further asserts that two weeks before decision, this court issued its he Family 28, 2008, learned that on March Wisconsin request investigation Action, Inc., had filed a formal charging with the Commission, Wisconsin Judicial impaired Justice Butler had misled citizens and his ability impartial fair render decisions cases gay affecting rights marriage. *7 According
¶ 8. to Donohoo, the document filed Family with the Judicial Commission Wisconsin Ac- January tion stated that between June 2007 and Irvings, Peter Bock and Ruth two of the twelve board members Wisconsin, PAC, of Fair Action Wisconsin's made contributions to Justice Butler's election cam- paign. allegation Donohoo makes no that Justice Butler was aware of these contributions or that he was aware Irvings any that Bock or had connection to or interest in by accepting this case. Donohoo asserts that serial con- litigant tributions so, from a after he had vowed not to do by failing and to contributions, disclose the Justice deprived right object Butler Donohoo of the to Justice participation Butler's in the case based on the contribu- tions. alleges August
¶ 9. Donohoo also that 26,2007, on appeared Justice Butler at a fund raiser for the Center supports equality PAC, Advocates' which LGBT and the copy 3, 2007, A of Justice Butler's December letter is Appendix attached as A. their benefiting people LGBT of legislation
passage the PAC's sole purpose that alleges Donohoo families. including same equality, of LGBT to advance the cause working that the PAC was He also asserts marriage. sex Butler. re-elect Justice help fund raiser that while at the Donohoo asserts equality his for LGBT support Butler avowed Justice raise help group of his office to dignity and "lent the the fund that at says by appearing also money." Donohoo joined Butler "Justice delivering speech raiser and also to PAC, and consequently at the with the hip himself with Wisconsin's Wisconsin," and himself "aligned Action radical PAC and rights premiere homosexual premiere their common goals ... and advocacy group homosexual at that by appearing Donohoo also asserts agenda." his hand regarding Butler "tipped the fund raiser Justice his bias." personal 31, 2008, on March alleges 11. Donohoo also on its Web site indi- entry an posted
Action Wisconsin Butler and his surveys that it had sent to Justice cating Butler to the only responded and that Justice opponent to the response asserts his survey. Donohoo who family he had friends or Justice Butler said survey has affected if that relationship LGBT. When asked were Justice community, way injustices facing he saw an said, express opinion Butler "I decline to respectfully to rule." may required the court be on issue where *8 Justice But- this verified that response Donohoo asserts "garden party" at the fund-raising ler knew his speech was and unethi- inappropriate of LGBT support equality cal. 24, a March to a of According transcript 12. memorandum in
2008, interview attached to the radio his motion, when asked about of Donohoo's support 518 "I said, Butler Justice the fund raiser at appearance for candidacy my about own the organization at spoke involved, get I don't I did not get Court. the Supreme appro- I don't think it's cases. in individual involved Butler also to do that." Justice the courts for priate . . . me to reach out to said, important "I think it's 22, January that on Donohoo asserts all citizens." PAC endorsed Justice the Wisconsin LGBT candi- candidates, "These saying, other Butler, among LGBT advancing equality." of long history have a dates Fair that while Wis- also asserts 13. Donohoo Justice But- endorsing formally refrained from consin endorsement . . their "delivered. ler, Fair Wisconsin in the of an editorial in the form the back door" through News Gay of 25, 2008, edition Wisconsin March of Action Packard, one Tamara Quest in which for Louis readers to "vote urged attorneys, Wisconsin's Packard Attorney says 1." Donohoo April Butler on of Action Wisconsin of directors served on the board fees receiving firm be that her law will he asserts decision. majority of this court's as the result awarded Packard's Attorney result of that as the Donohoo asserts Wisconsin, "the appearance to Action connections Butler is palpable." of Justice part on impropriety Butler's appear- that Justice Donohoo asserts 60.05(1),4 SCRs raiser violated the fund ance at 60.05(1) provides: SCR judge all Extra-judicial A shall conduct in General. Activities they extra-judicial do none of the judge's so that of the activities following: (a) judge's capacity act on the reasonable doubt Cast judge. impartially aas
(b) judicial office. Demean the judicial (c) proper performance of duties. with the Interfere *9 60.05(3)(c)2.,5and 60.03.6 Donohoo contends that "[r]es- toration of public confidence in the of the impartiality decision in the petitioner's case demands that Justice Butler be disqualified by law." Donohoo further asserts that Justice Butler was by law disqualified pursuant
5 60.05(3)(c)2. SCR provides: Ajudge, in capacity: May organization planning a. the fund-raising assist in ac- may participate management tivities and in the and investment of organization's may personally the participate funds but not in the fund-raising activities, except solicitation of funds or other that a judge may judges solicit funds from judge other over whom the supervisory does appellate authority; not exercise or May public b. make private recommendations to and fund- granting organizations projects programs concerning on and .the law, legal system justice; the or the administration of May personally c. participate membership not in solicitation reasonably may if the perceived or, solicitation be as coercive except permitted 2,a, as membership subd. if the solicitation is essentially fund-raising mechanism; and May permit d. prestige judicial not use or the use of the of raising office for membership fund or solicitation. provides SCR 60.03 as follows: Ajudge impropriety shall appearance avoid impro- and the of priety judge's all of the activities. (1)Ajudge respect comply shall with the law and shall act all promotes public at times in a manner that confidence in the integrity impartiality judiciary. of the (2) judge may social, A family, political not allow or other relationships judge's judicial to influence judgment. conduct or Ajudge may prestige judicial not lend the officeto advance the private judge interests of convey permit or of others or convey impression they others to special position are in a judge. judge may testify to influence the A voluntarily not as a character witness. (3) judge may A membership any organization not hold practices race, gender, invidious discrimination on the basis of religion origin. or national *10 757.19(2)(f)7 of substantial § because his Wis. Stat. in the and interest the outcome of personal financial also lawby and that Justice Butler was disqualified case 757.19(2)(g),8 § which a prohibits to Wis. Stat. pursuant in a case the judge when judge participating he or she cannot retain his or her impar- determines tiality. Further, deciding asserts that in 15. Donohoo from par- Justice is law disqualified by
whether Butler § in this under this court 757.19(2)(g), matter ticipating test an test objective both a and apply subjective should Justice Abrahamson's concurrence as discussed Chief 654, 115 Harrell, 665, 2d 546 N.W.2d in State v. 199 Wis. (1996). Chief comment points He also to the Justice's that an test objective concurrence in Harrell her and the due of the federal by guarantees required process that 671. Donohoo contends state constitutions. Id. at of conduct "pattern guaranteed Justice Butler's was minimum, cannot create, appearance [he] at a the also raises in an manner...." Donohoo impartial act instant in the majority's various criticisms the decision "It decision does not the ... says, appear case or facts, existing on the law." logic, was based 7 757.19(2)(f) provides: Wis. Stat. judge any Any disqualify or civil or shall himself herself from following proceeding one of the situations
criminal action or when occurs: (f) judge significant personal a financial interest When has a or solely by
in the outcome of the mater. Such interest does not occur taxingbody party. judge being political a a a or that is the member of 8 "Any judge § dis 757.19(2)(g) provides: Stat. shall Wis. or or civil or criminal action qualify himself herself from following occurs:... situations proceeding when one of the cannot, that, any reason, determines or she judge he a [w]hen cannot, or in an manner." appears impartial it he she act 521 II This is first asked, 16. not the time we have been following decision, the issuance of to declare that a justice disqualified was law from participation the past matter. In the 20 we have been faced years with this issue times. three We undertook similar examinations in 175, State v. American & 2d TV 151 Wis. 443 Appliance, (1989), N.W.2d 662 City of Edgerton Co., v. General Cas. 190 (1995), Wis. 2d 305 N.W.2d and Jackson v. Benson, WI 14, 2d 681, 249 Wis. 639 N.W.2d In case, cases, the as in three present the we prior consider allegations Donohoo's decide the matter without need for case, further as in briefing.9 present *11 cases, three prior we determine from the face of motion Donohoo’s and accompanying that, documents true, even all of accepting allegations his as neither on the law asserted nor on the facts can it alleged be established that Justice Butler was disqualified by law from participating this case. 17. Donohoo that states he first became aware
of the basis for alleged disqualification Justice Butler's when he learned that Action, Inc., Wisconsin Family had formal filed a request investigation with the Wisconsin Judicial Commission. That request allegedly revealed the contributions made to Justice Butler's campaign election by members of Action Wisconsin's PAC and Justice Butler's attendance at the fund raiser. Edgerton, Justice Geske provided the court letter with a from Judicial the Commission stating that complaint the her against had been dismissed upon the Commission's determination that there was no prob-
9 On July filed requesting Donohoo a motion that the court a briefing establish we can schedule. Because resolve the briefing, matter without further we the dismiss motion as moot. whatsoever had to that violation cause believe
able 2d Similarly, 190 Wis. at 522. Justice Edgerton, occurred. his confidentiality a limited waiver of granted Butler has to Commission proceed- the Judicial rights respect with the with the Judicial furnished ings10 and has that, 28, 2008, stating April letter dated Commission's of matter has this Commission's examination "[t]he is no evidence of in a determination that there resulted Commission jurisdiction misconduct within the Commis- by further action or consideration warrant on the Commission's rely solely sion."11 We do not examined determination, carefully but have also he and all of the materials sub- Donohoo's allegations that so, too conclude Justice doing mitted. After we disqualified by participating was not law Butler case. this claim that Justice Butler 19. As to Donohoo's in the law from participating
should be disqualified 757.19(2)(f) § because he received case pursuant of Action from members contributions campaign we note attorney, PAC and its Wisconsin's Commission stated: Judicial or elsewhere There is no case in Wisconsin solely on justice based judge of a requires recusal of the judicial campaign. The amounts to a contribution *12 your are rela- presented submission contributions the tively They legal and well within insignificant. were Supreme maximum for individual contributions law. There were no as established state Court races the litigants in cases before from contributions 10 attached as limited waiver is copy A of Justice Butler's
B. Appendix
11 attached as letter copy A the Judicial Commission's of Appendix C.
court, but rather two board members out of twelve personal attorney. made did an donations as 60.04(4), SCR Wisconsin Code of Judicial Conduct requires recusal when the facts and circumstances reasonable, a indicate that person well-informed knowledgeable judicial about ethics the standards and justice system reasonably would question judge's the ability impartial. to be Supreme The Wisconsin Court Advisory Opinion Judicial Conduct Committee 03-1 says as follows: prior for, mere support
"[T]he fact of opposition to, judge's a election does not necessarily rise appear- to the level of an ance impropriety. of public Both the and knowledgeable persons judicial within the system, fully of, likely are aware com- with, fortable people sup- fact that will port judicial an individual for office with assistance, monetary various sup- levels port or endorsements. This fact in and of itself not special does create so close or relationship require so as to re- automatic cusal." In addition to there no being requirement
that a judicial candidate disclose all contributions to his or her campaign, record before us does not support Donohoo's assertion that Justice Butler violated his campaign promise regarding contributions. According to submitted, materials Donohoo has Justice Butler said he would refuse contributions parties with pending court, cases before the but would accept and disclose donations from attorneys with cases. pending From the record before it us, this appears is precisely what happened. Justice Butler accepted disclosed a contribution from Attorney $300 Pines. As the Judicial noted, Commission Bock and Irvings were not parties to pending addition, action. nowhere does Donohoo *13 Irvings Butler knew that Bock or that Justice assert The of Fair Wisconsin. code members were board candidates to require judicial conduct does not judicial possible organization to with every research attempt Such a have an affiliation. may contributors which to candidates unduly be burdensome requirement would we decline to it. judicial impose office and As Donohoo's claim that Justice Butler raiser, fund the Judi- attending in improperly acted noted and candidates for "[jjudges cial that Commission their on political office can announce views judicial as as are not or legal long they pledges promises issues addition, note we that way." decide cases a certain 60.05(3)(c)2.d provides: to SCR the Comment may guest or of honor at an judge speaker A be is fund-raising provided event there no organization's guest advertising judge speaker or of honor in of the as encourage people to attend and make contribu- order to provided contributions at the event tions and speech presentation as prior judge's made to the are judge's A attendance at such event guest of honor. chapter. this permissible if consistent with otherwise no in Donohoo's motion or allegation 22. There is complaint materials or Wis- accompanying Commission, Judicial Family Action filed with the consin the memorandum of which are attached to portions motion, that Justice Butler's atten- support of Donohoo's was advertised in advance. dance at the fund raiser 24,2008, in March radio When asked about the event that while at the event interview, Justice Butler stated candidacy. nothing find in the spoke he about his own We Butler's attendance at the suggest record to that Justice judicial the code of event, prohibited which is not him from conduct, disqualify partici- be held to should in this matter. pating *14 23. As to Donohoo's about complaints Attorney
Packard's endorsement of Justice candidacy, Butler's 60.06(5) SCR that a is not explicitly provides judge from prohibited soliciting and endorsements accepting 60.06(5) lawyers. Indeed, the comment to SCR states, "The receiving endorsements is an important informing method of the electorate of broad-based and informed for a presumably candi- support particular dacy." 24. While asserts that the Donohoo court should Chief
follow Justice Abrahamson's concurrence in Har- apply subjective rell and both objective standards in deciding required whether Justice Butler was to § himself disqualify under note that 757.19(2)(g), we the in majority Harrell forth opinion set the appropri- analysis ate employed be as follows:
In American stated (2)(g) TV we that subsection con cerns "not exists in what the external world... but judge's TV, exists in what the mind." American 151 182-83, 2d at explained: Wis. 443 N.W.2d We 662. Stats., 757.19(2)(g), Section mandates judge's only a disqualification when that that, judge makes a determination fact or in appearance, he or she cannot act in an impartial require manner. It does not dis- qualification in a situation where one other judge objectively than the believes there is appearance an judge the is unable to impartial manner; act an neither does it require disqualification... ain situation judge's impartiality which the 'can rea- sonably questioned' by be someone other the judge. than
526
183,
Id.
Appellate
662.
review of this
at
N.W.2d
establishing
"limited
subjective
determination
judge
requiring
made
a determination
whether
186,
(1991). objectively decide if reviewing The court must making required exercise of judge through went subjective determination. Harrell, 199 Wis. 2d at 663-64. us, From before we find the record *15 subjective Butler made a determination clearly
Justice in In the his case. ability to the regarding proceed 2007, to Justice 3, he sent the parties, December letter the executive consulting stated that after with Butler to disclose of the Judicial Commission he chose director campaign Pines' and said because Lester contribution as to no affect his way judgment contributions would in he the advising the of the was outcome proceeding, By in the case. participate of his decision to parties 2007, to 3, continuing the December letter and sending deter- case, clearly in the Justice Butler participate is he could This is all impartial. mined that be §by 757.19(2)(g). required to that a is judge required 26. We do not hold the notice to give letter or otherwise formal
send a made to that he or she has in order demonstrate parties ability his or her regarding a determination subjective Justice did send a to in the case. Since Butler proceed the serves as an in this case letter parties, letter to he he made determination subjective indicia that a cases, a subjective In other judge's could be impartial. For in may ways. be demonstrated other determination v. 111, 274 Wis. State 2004 WI 2d Carprue, example, 656, 684, 683 31, N.W.2d we that, assumed in the absence any objection, to continuing preside in the matter a judge believed she could act an impartial manner. 27. Donohoo to appears be this asking court to
overturn the decision in Harrell an impose objec- tive standard of review a judge's subjective initial decision not to disqualify himself or herself. We decline to do so. As we said in Harrell: §
Wisconsin 757.19(2)(g) Statute clearly drafted so as place the determination of partiality solely upon the judge. TV, See American 182-83, 151 Wis. 2d at fact, legislature N.W.2d 662. specifically included six other objectively determinable situations in subsec (2) tion require which withdrawal. These are the six situations on which it chose to focus. It is not this court's role under (2)(g) subsection expand this list by requiring judge to recuse himself or herself in all objective situations where an basis of impropriety may If general prohibition exist. in (2)(g) were read so broadly, specific the six situations enumerated in the statute superfluous. would become Id. at 664-65 (emphasis original). 28. We do not address Donohoo's arguments
about the merits of the court's June 2008, decision. Donohoo conceded that his motion for reconsideration *16 of the decision was untimely and should be dismissed. Consequently, arguments to going the merits of the decision are not before us. The only issue that is before us is whether Justice Butler was disqualified by law in participating the case. We conclude he was not. 29. In addition to
¶ concluding that none of Donohoo's allegations support his contention that Jus- tice Butler was disqualified by law from in participating case, the we are troubled the by timing of Donohoo's motion. On 3, December 2007, Justice Butler advised Pines' contribution. Donohoo the of campaign parties Butler's in Justice objected participation could have to so. that time did not do Donohoo states the case at but Action's com- learned about Wisconsin Family that he Justice Butler two weeks approximately plaint against the decision court issued its decision. Since before this 2008, Donohoo had presumably was on June issued in contained his motion and accom- all the information he third week in May, yet memorandum the by panying raise the issue of Justice Butler's participation failed to time rendered, in the was at a the case before decision with the presented when Justice Butler could have been or to recuse himself. decision whether not Jackson, in such as 30. As we noted "Motions ¶ the public's the to undermine this, having potential in the of this court's legitimacy trust and confidence the of this impartiality integrity decisions indeed, and, institution, very an are serious court as Id., be in a must raised fashion." accordingly, timely are of the fact that request- 22. While we appreciative very a law is a ing judge of disqualification court, matter, to the and the parties serious fairness that if a has information while a case is pending party justice's issue of a or goes judge's participation to the an to matter, obligation promptly has party justice's the matter the individual judge's bring has been rendered. attention before decision record estab- our review the summary, motion the claims made Donohoo's lishes Justice Butler's disqualifi- vacate the decision based on sought. relief are insufficient to warrant cation deny the motion. we Accordingly, J., BUTLER, JR., B. did not partici- 32. LOUIS pate. *21 (concurring).
¶ PROSSER, The DAVID T. J. 33. by presented the decision in the motion to vacate issue Wisconsin, 56, Inc., 2008 WI v. Action Donohoo Justice Butler 704, 750 N.W.2d is whether Wis. 2d participating disqualified in from this case as a was matter law. starkly puts
¶ the issue about as 34. The motion impartiality put, challenges the of a can be for it as it The motion should not come as a member of the court. surprise, given predicament in however, which frequency and the of similar movant finds himself on other members of the court. attacks response ¶ This, court's is a swift rebuff. 35. The surprise other re- too, should not be a because challenges disap- encourage sponse more from would litigants pointed apprehensive and others who seek political agenda at- to advance their interests or tempting justices targeted induce withdraw pressure. cases under exposes in a
¶ of the flaws 36. This case some opin- system justices elected. The court's are which campaign necessarily details ion, discloses the which challenge, likely giving not to enhance rise to this confidence the court. Why supreme finds itself this 37. position be to the court can
awkward and how elections analy- thoughtful questions are that deserve reformed sis. attempt to discuss will 38. This concurrence points in turn.
several of these
I Attorney filed a defama- James R. Donohoo 39. against the of Grant E. Storms tion suit on behalf February 23, The facts of the. case defendants on *22 are discussed in this court's Donohoo opinion, 704, 7-30; id., 2d J., Wis. 92-99 (Roggensack, ¶¶ ¶¶ and in the dissenting), unpublished decision of the Wisconsin, Inc., court of v. Action Donohoo No. appeals, (Wis. 2006AP396, and order unpublished slip op. Ct. 2007). 30, App., May 28, 2005, 40. On June the circuit court granted
¶ the defendants' for summary judgment. motion On 4, 2006, January circuit denied Storms's motion for reconsideration and granted defendants' attorney motion for costs and fees. 41. In original motion, their the defendants
¶ asked for attorney costs and fees from both Storms Attorney 6, 2005, Donohoo. In a September letter to the court, the defendants altered their request, asking costs and attorney only fees from Attorney Donohoo. The circuit court's of this approval request is embodied 23, 2006, its January order for judgment and 2, February 2006, result, As a judgment. Attorney Donohoo has been made solely liable for costs and attorney $87,452.59. fees of 42. 8, 2006, On February less than a week after the circuit court entered judgment, defendants filed a garnishment action against Attorney Donohoo's personal and business bank accounts. This action implicated Wisconsin, Donohoo's wife. See Action Inc. v. James (Milwaukee Donohoo, R. 2006CV1039 County, Feb. 2006); Cary Bice," & Dan Spivak 'Timing everything,' a lesson," 18, 2006, Feb. costly http://www. jsonline. (last com/story/index. aspx?id=402734&format=print 2008). July 22, visited Although this action was subse- dismissed, quently a similar action cannot be ruled out in the future. to message sends a Thus, chilling this case -42. and causes to represent persons who
attorneys agree correct. viewed as politically that are not is not oblivious to con- Donohoo Attorney years, justices recent developments. temporary legal demands subjected repeated have been of this court in pend- from participation recuse themselves they amplified by those demands are cases. Often ing who to believe appear sensation-seeking reporters with the tamper press right freedom of the entails these well- Sometimes justice. administration *23 justice a to withdraw demands have caused publicized is not in a to justice position because the from a case to comment appearing without allegations answer false pending litigation. on that his If Donohoo believed Attorney 45.
¶ he is reported, would be sympathetically claims of bias event, failed to In he has any to be likely disappointed. the court's decision. to vacate provide grounds
II Wisconsin, to the justices supreme In come 46. ¶ appoint- by gubernatorial either election or court Const, 4(1), a VII, justice 9. When Wis. art. secs. ment. he or she must vacancy, court to fill a to the appointed is year the the first position for the office to retain run illustrate, election. To there is not another which to the appointed Abrahamson was Chief Justice serving in 1979 while to run required in 1976. She was century, In past quarter of the court. the as a member then ran to the court and who were justices appointed (1984), J. Ceci are Louis serving for the while position (1997), Diane S. (1994), Jon E Wilcox Janine E Geske B. (2001), and Louis (2000), David T. Frosser Sykes (2008). course, Butler, justice Jr. Of who elected on serving the court will seek re-election while to S. Abrahamson Shirley court. Current are examples (1989, 2009), (2005), Ann and N. Bradley Walsh (2006). Patrick Crooks court, runs for the any sitting justice 47. When is confronted with the of how to justice problem for a money campaign and how raise
campaign a real or conflict of interest. creating possible without inevitably attorneys, attorneys Justices deal with and a role in always played significant funding judicial have campaigns. There are ethical rules that prohibit judges 48. contributions, see personally soliciting campaign 60.06(4),
SCR but there are no clear guidelines rules on when a commit- bright-line justice's campaign tee receive contributions from a a may party, party's firm. attorney, attorney's or members of the law Con- of contributions —which is ex- sequently, receipt in a pected probably necessary system judicial elections —is bound to raise questions generate differing reactions. however, the absence of clear guidelines,
members of this court are position not good *24 in second-guess colleague's a decision to a participate case after his or her committee has received contribu- instances, tions. In some there is no for justification a such review.
Ill 50. This case a publicly involves con- reported tribution from an a attorney party representing pending case as well as contributions from several members of that law firm. Lester attorney's Attorney Pines filed a for review in this petition case on behalf of 29, the defendants on June 23, 2007, 2007. On July Attorney Pines contributed to Justice Butler's $300 11, 2007, On campaign. September this court granted the for petition 3, 2007, review. On December Justice Butler advised the of the parties Pines contribution. On 15, 2008, January the court heard oral argument and tentatively 5, 2008, decided the case. On June the court issued its decision. Attorney Pines is a prominent who attorney appears before frequently the supreme court. There is no rule prohibiting the Pines contribu- tion, and no likelihood that the Pines contribution had on any influence Justice Butler's decisions. period the after the case was decided
internally and lot to Ann assigned by Justice Walsh Bradley, several members of the firm Cullen, law Weston, Pines & Bach LLP contributed money Jus- tice Butler's ($100, Jordan Loeb campaign: 2, February 2008), ($250, Alison TenBruggencate 25, February 2008), ($100, 6,2008), Terri Gabriel March Jordan Loeb ($100, 17, 2008), March ($100, and Nick Fairweather 2008). March Attorney Fairweather appeared court on behalf of Action Wisconsin in the garnishment action. These contributions all came after the case was decided internally and did not affect Justice Butler's decision.1 52. Attorney Donohoo also that Jus- complains
tice Butler's received contributions campaign two members of the Action Wisconsin board: Peter Bock and Ruth Peter Irvings. Bock's contribution to the $125 campaign came before the granted the petition
1 justice's A argument vote at conference after oral is a "tentative" justice may vote the sense that a revise his or her position, even if justice writing one opinion. Changes in position occur but are infrequent. *25 Bock is much better However, Peter case. in this
review who is from Milwaukee legislator a former known as Falk than Kathleen Executive County to Dane married board. Ruth the Action Wisconsin a member of as Butler's $1,100 campaign to Justice contributed Irvings the case was before contributed was only but $100 attor- a Milwaukee Ruth Irvings decided. and argued as such. herself and identified ney is not matter, justice a sitting As a practical 53. affiliations to all the litigants to disclose equipped well timely were if those affiliations contributor, even of a is no there At present, the contributor. disclosed requirement There is also no in law. such requirement Disclos- litigants. disclose contributions justice that a every litigant contributions relevant arguably ing closely with staff to work justice's professional forces a staff. campaign justice's to the fact Donohoo also Attorney points at fundrais- and spoke Butler appeared that Justice Action Com- Political for Center Advocates event ing PAC) (Center 26, 2007, on August Advocates mittee review was pend- for petition Action Wisconsin's while ing. 60.06(5) governs Court Rule 55. Supreme It of Endorsements." Acceptance
"Solicitation reads: may solicit or judicial for office judge
A or candidate or his or her election accept supporting endorsements through or his or her commit- appointment personally office, or her judicial or his judge, A candidate tee. soliciting accept- from prohibited not committee is judge A lawyers from and others. ing endorsements knowingly person- not judicial office shall candidate for parties who accept endorsements ally solicit or to which election the court pending have a case before *26 appointment sought. Nevertheless, or judge a or judicial may personally candidate solicit or accept en- from types organizations dorsements the of that ordi- narily make recommendations for selection to the of- fice. In soliciting accepting endorsement, judge an judicial or candidate for office should be mindful of the 60.04(4). requirements of SCR 60.03 and 56. The record shows that ¶ Action Wisconsin!s petition for review was received by our court commis- 13, sioners on July 2007. A recommendation was made to the court for the 13, 2007, court's August conference. The petition was held for our conference on September 10, 2007, at which time the granted court review. Justice Butler at appeared the Center Advocates PAC Garden Party Equality fundraiser on August 2007. he was Presumably, present his can- promote didacy, that he meaning solicited the organization's support. 57. Although Justice Butler's appearance might
seem problematic the Action Wisconsin petition was then pending, there are at least two reasons why this appearance First, was not prohibited. there is a distinction between Wisconsin, Inc., Action the party case, this and Center Advocates PAC. to a According news release Butler, Justice endorsing Center Advo- cates PAC is "affiliated with Advocates, Inc.," Center which is a corporation separate from Action Wisconsin. short, Center Advocates PAC was not a Sec- party. ond, Center Advocates PAC is the type organization that ordinarily makes recommendations for selection to both partisan offices, non-partisan including judi- Thus, cial offices. the is not organization implicated by 60.06(5). prohibition SCR 58. Because Justice Butler was not prohibited from appearing before and speaking Center Advo- their receiving PAC, prohibited he was not
cates unless question raises no appearance His endorsement. Butler to promote Justice used organization com- Butler Justice fundraising organization's and/or organi- to the of interest decide cases himself to mitted has no evidence way. The court in a certain zation event occurred. either that Justice complains Donohoo Attorney The Packard. Tamara by Attorney endorsed
Butler was this sought Butler that Justice has no evidence *27 he accepted, that is no evidence There endorsement. Packard's Attorney of even aware or was approved, endorsement. any of statute sum, there is no violation 60.
¶ basis on there is no rule, and, consequently, judicial decision. the Donohoo to vacate which IV jus- electing supreme of system 61. The ¶ However, eliminating judicial flaws. is not without tices prob- new series of entirely an would create elections funding lems, complete public notion of and meaningless and is both unrealistic judicial campaigns Constitution. in the United States changes without expendi- independent not eliminate Public will funding of a the control definition, tures, are, by beyond which candidate. a dispas- to have It is reasonable entirely 62. funding of public on the role
sionate discussion who care about people But campaigns. judicial why hard at supreme look and long must also judiciary expen- contentious and have become so court elections sive. of making in the vanguard A court that is 63. some benefits way greatly law in a changing seriously groups damages
interest others is a court actively, inadvertently, promoting politici- if Every litigant zation itsof own elections. believes he is impartial litigants entitled to an review of his case. If do they get impartial not believe can an review of their they inevitably attempt change cases, will the com- position of the court. respectfully For stated, the reasons I concur.