Download PDF

After three years in a row of vigorously contested state supreme court races, numerous proposals have emerged to reform judicial selection in Wisconsin. Members of the legal, legislative, and policy communities have weighed the various options to improve the system by which Wisconsin selects its trial and appellate judges.

Since the state’s founding in 1848, the people of Wisconsin have elected their judges. Although judges were originally elected on a partisan basis, the state constitution was amended in 1878 to require that judicial elections be held separately from partisan general elections. In recent years, these non-partisan elections have increasingly assumed an ideological tone, pitting the “conservative” candidate against the “liberal” candidate, perhaps because of the perception that the court was engaging in an analysis better left to the legislature. In the spring 2007 race for an open seat on the court, the two candidates and outside groups spent approximately $6 million, four times as much as the previous record of $1.4 million, set in 1999. The following spring, a challenger upset an incumbent justice for the first time since 1967. The one television ad run by the challenger’s campaign drew national media attention for its aggressive tone. The spring 2009 race, which pitted the thirty-four year incumbent chief justice against a trial court judge, was tamer than the two previous campaigns, but still received significant media attention across the state.

The heightened level of rhetoric and spending in these three races has prompted many progressives to consider modifying the state’s current method of judicial selection. The three suggestions that are most widely discussed are the creation of a merit commission system, public financing of judicial elections, and the regulation of independent groups that run ads during judicial races.

A Commission Based System

The editorial board of the Wisconsin State Journal, the daily newspaper in the capital city of Madison, is the primary public proponent of enacting a commission based system in Wisconsin. During the past several elections, rather than endorsing a candidate for the supreme court, the paper has endorsed this system. The Journal believes that, under such a system, “merit trumps politics—so justices can be independent and impartial rather than soiled by the suspicion and partisanship that election campaigns create.”1 Under this system, sometimes referred to as “the Missouri Plan,” a commission of lawyers and non-lawyers would interview applicants for judicial vacancies and recommend a list to the governor, who would then pick one of the people on the list.2 After a certain number of years on the bench, each judge would face a “retention election,” an up-or-down vote by the citizens of the state or district, which would determine whether or not the judge would remain in office.

Critics charge that this system would take away the people’s right to elect their judges, who in turn can exercise tremendous power in our society. Moreover, the selection commissions usually operate in great secrecy, hiding the judicial selection process from the press and public. Some argue that this allows bar association insiders and trial lawyers to dominate the process and push judicial appointments sympathetic to their agenda.

This is not the first time that such a constitutional amendment has been suggested in Wisconsin. As early as 1934, a panel of the State Bar of Wisconsin considered a commission based system, determined that it would require an amendment to the constitution, and recommended that the Bar urge such an amendment.3 The Bar studied the matter for several years before concluding that “the Wisconsin judicial system is not in any dire need of change.”4

In 1949, the state Senate considered Senate Joint Resolution 43, which would have amended the constitution to create a nine-member commission that would give the governor a list of two to three names to choose from. After a candidate was selected, he or she would be subject to a retention election. The system would have only applied to supreme court justices and Milwaukee judges, although voters in other circuits could have chosen to have the plan apply to them as well.5 The Senate rejected the amendment.6

A similar bill was introduced in 1955 with the support of the State Bar. The bill passed the Assembly, but failed in the Senate.7 The same bill was reintroduced in 1969 at the urging of a local bar association, but died in committee.8 Two years later, a senator introduced an amendment to create two merit commissions, one for the supreme court and one for trial courts, but it died due to inaction.9

In 1971, Governor Pat Lucey established a blue ribbon commission to design a thorough constitutional reorganization of the judiciary. The Citizens Study Committee on Judicial Organization’s original report recommended that the constitution be amended to provide for selection commission based system with retention elections.10 However, due to pressure from organized labor’s representatives on the committee, the recommendation was removed for fear that it would scuttle the entire package.11 

The State Bar Board of Governors, after a contentious vote of 17 to 16, again endorsed such a constitutional amendment in 1981, following three years of study by a bar committee.12 Legislation to this end was introduced in the 1981 and 1983 legislative sessions, but failed to pass.13

In the past years, the Wisconsin State Journal has been a loud but lonely voice pushing for transformative change to the state’s judicial selection system. The proposal lacks a champion in the legislature. Moreover, as this history demonstrates, a commission system would require amending Article VII, Section 4, of the state constitution,14 a significant hurdle for any reform, particularly one that would require voters to choose to give up their right to elect their judges.15

Public Financing

Public financing of judicial elections came to the fore in December 2007 when the seven sitting justices of the Wisconsin Supreme Court signed a joint letter in support of public financing immediately before a special session of the legislature convened to discuss campaign finance reform.16 Although the session did not pass a final bill, legislators and outside groups, like the State Bar of Wisconsin and the League of Women Voters, continue to clamor for public financing.17

Proponents of public financing stress that judges occupy a different kind of office than politicians. They decry the millions of dollars spent on judicial elections and the accompanying perception that justice can be “bought” by those with deep enough pockets. Many who donate to judicial candidates are lawyers who appear before the court. A recent federal court decision,18 which allows Wisconsin judges to personally fundraise on behalf of their campaigns, will only expand opportunities for donors and judges to directly connect.

Opponents of public financing stress three major points. First, they argue that public financing will force state taxpayers to subsidize political campaigns at a time when the state budget is already under tremendous strain. Second, they argue that public financing will be ineffective at achieving its goal because most of the money spent on negative advertising comes from outside groups not affiliated with the campaigns. Third, they suggest that recent U.S. Supreme Court decisions may make public financing laws unconstitutional.19 Overall, the opponents fear that the government’s role in financing will lead to improper government entanglement in the campaign process.

Compelled Disclosure

Legislation is also pending to create significant new regulations of independent organizations that engage in “issue advertising.” According to the Legislative Reference Bureau’s analysis, “[Senate Bill 43] imposes registration and reporting requirement… upon any individual and organization that, within 60 days of an election and by means of communications media, makes any communication that includes a reference to a candidate at that election, an office to be filled at that election, or a political party.”20 The legislation would require disclosure of donors to organizations that run such advertisements. Separately, the Government Accountability Board, the agency charged with enforcing Wisconsin’s campaign laws, is seeking to implement a similar rule if the legislature approves.21 Legislative leaders and Governor Doyle have expressed support for the proposal.22

Those who favor the rule argue that significant amounts of money are channeled through these outside groups. They argue that this money, the sources and destinations of which are hidden from public view, is used to purchase advertising that affects elections without using the “magic words” that would make them campaign ads rather than “issue ads.” Proponents of disclosure are concerned that the current system allows special interests to impact elections without playing by the same rules as everyone else.

A coalition of organizations from both the right and the left oppose compelled disclosure on free speech grounds.23 These groups believe that citizens have a constitutional right to band together and draw voters’ attention to important public policy issues. They have specifi c concerns that this legislation runs afoul of the U.S. Supreme Court’s ruling in Fed. Election Comm’n v. Wis. Right to Life, Inc.,24 which said that citizen groups had a right to buy advertisements regarding pending legislation outside the strictures of the McCain-Feingold campaign finance reform.

Other Proposals & Conclusion

A few other proposals are also in the mix, but they are currently receiving less public attention than the three discussed above. State Representative Frederick Kessler (D-Milwaukee) has authored a bill to amend the state constitution regarding judicial selection.25 The bill proposes that the governor nominate, and a majority of the state senators confirm, a justice to a ten year term. At the expiration of the term, the justice would be automatically reappointed unless thirteen state senators voted against reconfirmation. Th e bill has only one cosponsor and it does not seem likely that the bill will reach floor consideration. Another constitutional amendment that some have suggested, most prominently current Wisconsin Supreme Court Justice N. Patrick Crooks, would remove the constitutional requirement that judicial elections happen on a different day than the fall general election for partisan offices.26 Such a change, proponents contend, would increase the number of citizens voting in judicial elections. However, it would result in supreme court elections being placed lower on the ballot and potentially getting lost among higher-profile races such as those for president, senator, or governor.

The people of Wisconsin have elected their judges for over one hundred and fifty years. Paging through old law reviews, one finds a cry for reform raised every decade or two after a particularly contentious election for the Wisconsin Supreme Court. Yet the system has endured, basically unchanged, and is likely to remain so. Current members of the court and the people of Wisconsin support judicial elections.27 Although the legislature may tinker at the margins, Wisconsin’s system of non-partisan elections seems likely to endure long into the future.

 

Endnotes

1 Merit Should Nix Nasty Campaigns, Wisconsin State Journal, Nov. 18, 2008, available at http://www.madison.com/wsj/home/ opinion/314873 (last visited Apr. 23, 2009).

2 Tim Kiefer, Debunking Myths on Judicial Merit Selection, The Capital Times, Oct. 15, 2008, available at http://www.madison.com/tct/opinion/column/309476 (last visited Apr. 23, 2009).

3 William R. Moser, Populism, A Wisconsin Heritage: Its Effect on Judicial Accountability in the State, 66 Marq. L. Rev. 1, 58 (1982); and Joseph Ranney, Trusting Nothing to Providence: A History of Wisconsin’s Legal System 598 (1998).

4 Id. (quoting Report of the Committee on Judicial Selection, 28 Wis. B. Rep. 56-63 (1938)).

5 Thomas E. Fairchild & Charles P. Seybold, Constitutional Revision in Wisconsin, 1950 Wis. L. Rev. 201, 213 (1950).

6 Id. at 234. Id.

7 Moser, supra note 3, at 59. 8 9 Id. at 59-60. 10 Id. at 60.

11 See, e.g., Nathan S. Heff ernan, Judicial Responsibility, Judicial Independence and the Election of Judges, 80 Marq. L. Rev. 1031, 1041-42 (1997); Moser, supra note 3 at 60.

12 Moser, supra note 3, at 61.

13 State Bar of Wisconsin, A History of the Organized Bar in Wisconsin (undated), available at https://www.wisbar.org/AM/Template.cfm?Section=BarHistory&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=48674 (last visited Apr. 23, 2009).

14 Thomas J. Basting, Sr., Gutter Politics and the Wisconsin Supreme Court, 81 Wisconsin Lawyer 5 (2008), available at https://www.wisbar.org/AM/Template.cfmSection=Wisconsin_Lawyer&template=/CM/ContentDisplay.cfm&contentid=72127 (last visited June 30, 2009) (The State Bar president called for a “very serious debate about amending the Wisconsin Constitution to create a merit selection process.”).

15 The Wisconsin Constitution requires that amendments pass two successive sessions of the legislature and that they receive majority support in a statewide referendum.

16 The letter is posted online at http://www.lwvwi.org/cms/images/stories/PDFs/Legislative/Campaign%20finance%20letter.pdf (last visited Apr. 23, 2009) (Since the letter was published, Justice Gableman has replaced Justice Butler on the court).

17 This session, they are backing 2009 Senate Bill 40, introduced by Sen. Pat Kreitlow and Rep. Gordon Hintz.

18 Siefert v. Alexander, 597 F.Supp.2d 860 (W.D. Wis. 2009).

19 See Richard Esenberg, The Lonely Death of Public Campaign Financing, 32 Harv. J.L. & Pub. Pol’y (forthcoming, 2009).

20 Legisative Reference Bureau analysis of 2009 Senate Bill 43, available at http://www.legis.state.wi.us/2009/data/SB-43.pdf (last visited Apr. 23, 2009).

21 Tony Walter, Disclosure Sought in State Supreme Court Elections, Green Bay Press-Gazette, Mar. 17, 2009, available at http://www.greenbaypressgazette.com/article/20090317/GPG0101/903170514/1207/GPG01 (last visited Apr. 23, 2009).

22 “Phony Issue Ad” Reform Measure Clears Government, Common Cause in Wisconsin, March 31, 2009, available at http://www. wispolitics.com/index.Iml?Article=153968 (last visited Apr. 23, 2009).

23 See Letter to the Government Accountability Board, Aug. 21, 2008, available at http://elections.state.wi.us/docview.asp?docid=14615&locid=47 (last visited Apr. 23, 2009) (on behalf of twelve industry associations and citizen groups).

24 551 U.S. 449 (2007).

25 2009 Assembly Joint Resolution 6. A similar bill was introduced one decade ago, 1999 Assembly Joint Resolution 63. See Mary Hubler, Governor Should Appoint Supreme Court Justices, 72 Wisconsin Lawyer 10 (Oct. 1999), available at http://www.wisbar. org/am/template.cfm?section=wisconsin_lawyer&template=/cm/contentdisplay.cfm&contentid=49082 (The bill died in Committee. See Legislative Reference Bureau, History of Assembly Joint Resolution 63, available at http://www.legis.state.wi.us/1999/data/AJR63hst.html (last visited Apr. 23, 2009)).

26 Kevin Murphy, Recent state Supreme Court races have turned ‘elections into auctions,’ panel says, The Capital Times, November 19, 2008, available at http://www.madison.com/tct/news/stories/315051 (last visited Apr. 23, 2009).

27 See, e.g., Shirley S. Abrahamson, The Ballot and the Bench, 76 N.Y.U. L. Rev. 973 (2001); Make impartial justice an election issue, The Capital Times, Oct. 6, 2008, available at http://www.madison.com/tct/opinion/editorial/308063 (last visited April 23, 2009) (stating that Justices Bradley, Crooks, and Roggensack oppose moving from elections to a commission based system); Re: Key Findings from a Survey of 500 Likely Voters in Wisconsin, The Polling Company, Mar. 2008, available at http://www.pollingcompany.com/cms/files/Fed% 20Soc%20Wisconsin%20Key%20Findings%20for%20Release.pdf (last visited June 30, 2009) (reporting that 66 percent of Wisconsinites approve of the state’s current method of judicial selection).

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].