Lost in the smears, lies and distortions in the TV commercials run by special interests is the fact that the race for a 10-year term on the Wisconsin Supreme Court is a serious matter.
Our Supreme Court justices rule on the most important and difficult legal cases facing our state, and it’s imperative that Wisconsin voters select a justice with rock-solid integrity, a brilliant legal mind and a thorough understanding of the real-world issues facing residents.
That’s why we invited state Supreme Court Justice Louis Butler—the incumbent running against Burnett County Judge Michael Gableman—for an hour-long, everything-on-the-table interview: We wanted Butler to speak for himself, without interference from campaign handlers and distorted TV commercials.
So here’s a transcript of our conversation with Justice Louis Butler.
Shepherd: Many people may not know who you are, and how you got to where you are now. So who are you?
Butler: I’m a family man. I’ve got two lovely daughters and a stepson. I’ve got four grandchildren all under the age of 5. They’re the first love of my life. And I’m a justice on the Wisconsin Supreme Court. That’s the other love of my life. I love the law and I love doing what I do.
I think it’s important that we have a court that makes decisions based on facts and the law as applied to those facts. And that’s something that I have taken very seriously over the 30 years that I’ve been in practice, in my career, starting out representing poor people. I believe that every person has a right to a quality attorney regardless of why they’re in court. And I provided people with that. So I’ve been an attorney and done appellate practice and trial practice. I’ve been a judge, I’ve been a municipal court and circuit court and appellate court judge. I’ve been a domestic violence judge. I was fortunate enough in 2004, when the governor of this state, following a merit selection process—I know one of us in this race has gone through a merit selection process—appointed me to the Wisconsin Supreme Court and I’ve faithfully served the people of Wisconsin since August 2004.
It’s a collegial body. We have seven very outstanding legal minds, seven very stubborn individuals. We all think we are right. We are all trying to persuade the others to come to our point of view. But that’s the beauty of having seven in a collegial decision-making court. Hopefully all of us think that the citizens of Wisconsin are represented in the decision, when we make the difficult calls that we make.
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So, who is Louis Butler? I play softball, read science fiction, love my family and I play golf when I can, which I don’t have time to do these days because I’m busy on the campaign trail. But I am also one of the individuals who sit at the decision-making table and interpret the Constitution for all the people of the state.
Shepherd: The state Supreme Court is the highest court in the state, yet we have to admit that we know little about how the justices make their decisions. How exactly does the Supreme Court operate?
Butler: First, we have to decide which cases to take. We meet at least once a month, sometimes two or three days a month, when people can ask us to take a case by a variety of ways. When we decide which cases to take, we actually have a Dumpster that’s between each of two justices around a conference table. The Chief Justice [Shirley Abrahamson] will call a case and say, “OK, State v. Johnson, anyone want to talk about it?” We’ll go through 100 to 150 petitions. If no one says anything, into the Dumpster it goes. She pulls another case out until someone says that they want to talk about it, say, Jones v. Jones. Then everybody stops, we pull out our materials, and we have a stack for each case, and we talk about why it’s important to take this case. If three of us—for the vast majority of cases, this is the one hearing where the minority of the court has control. Three of us can take the case. And that’s how we take our cases. And we set up a briefing schedule, schedule it for oral arguments after the briefs are filed, and we actually have the justices listen to attorneys argue; it’s generally an hour per case, where you sit down and you go through the arguments. The attorneys will come in and make their best presentation.
When all three arguments are completed at the end of the day, we’ll go back into the conference room and then we’ll report, one justice at a time; we’ll go through and analyze the case. First we’ll go through our bottom line vote. Then we’ll talk about how we got there. And the chief justice will say, “Who is in the majority?” And now it’s time to assign the opinion. Ours is very different than the federal system. We don’t have the chief justice assign it. It’s much more complicated. Chief Justice Abrahamson pulls open her [desk] drawer and pulls out a box and dumps out onto the table seven poker chips that have smiley faces on them. They all have numbers on them. I’m not kidding. The numbers are turned face down. They are mixed up by Justice Ann Walsh Bradley, and she’ll select one. And if your number is pulled and you’re in the majority and you have not received a case this month, guess what—it’s your case. There are no specialties on the court. I don’t write all of one type of case and Justice [David] Prosser writes another type of case. Every individual on the court has equal opportunity to draft any opinion that comes before us. We even it out so that by the end of the year we all write the same number of majority opinions.
We write as many concurrences and dissents as we feel we need to. There’s a sort of rule—I think I heard it from [retired] Justice [Jon] Wilcox first, that you don’t write until the tips of your ears turn red. If you’re really angry, then you should write. So that’s how we handle concurrences and dissents. We send opinions back and forth. We constantly try to improve the opinion. We try to clarify it. We write against it. When everybody is done, what you see is the final product of the state Supreme Court. We go through that process with every single case we hear.
The interesting thing, what a lot of people don’t understand, is that you’ve heard a lot about all of the criminal cases [in the media], and “being tough on crime,” and things like that. That has very little to do with what we do on the court. Only about 25% of the cases we take are criminal. Most of them are civil or family or probate or children’s court cases.
And in terms of caseload, the case-deciding [aspect] is just one part of the job. We administer the justice system for all of the state of Wisconsin. We pass rules that govern attorneys. We regulate the State Bar. We regulate the state judges. We have public hearings and public conferences [regarding the State Bar]. This is a very large portion of the job that we do. These are the types of things that we do every day.
Shepherd: Your description of the court’s decision-making process conflicts with the popular conception of the court, which is that there are two voting blocs—a liberal and conservative bloc—with a swing vote.
Butler: That’s ridiculous. Absolutely ridiculous.
Shepherd: Why?
Butler: Nobody has taken the time, with only a few exceptions, to analyze how we vote. David Ziemer, in the Wisconsin Law Journal, which he does annually, is [one of the only people to] track the voting. I’ve heard the pundits out there, and most of the media, say, “You’ve got three to the left and three to the right and, oh my God, where’s [Justice] Pat Crooks?” That’s how the court is analyzed. That’s how we’re portrayed publicly. But in terms of the decision-making that takes place on the court, according to Ziemer’s article, no surprise, Pat Crooks is in the majority the most for the past year. I’m in the majority second-most.
I think many people would be surprised to see that because there’s the fiction of what we do—I think I know where it’s coming from. Most people see a black guy from Milwaukee, a former public defender appointed by a Democratic governor—he’s got to be liberal. And my political philosophy has nothing to do with my job as a Supreme Court justice. I have to interpret law based on the facts of the case. I have to do it based on the law that’s before me. So I’m not ashamed of the fact that I was a public defender. I was a doggone good one. But that is very different than what I do on the court. I have to analyze the cases and make decisions that are appropriate for the disputes that are before us. That’s one thing that tends to get lost. Ziemer has an analysis.
I was surprised to learn that the Wisconsin Realtors association had done an analysis. And they were surprised and it made a difference in their endorsement. They endorsed me. This is what I was told before I spoke to their organization a couple weeks ago—they told me that, “When it comes to personal property rights, you’re tied for No. 1 on the court from our perspective.” I never would have known that in a million years. I don’t go back and track my cases to see how I voted and I don’t vote based on any particular issues or cases or judicial philosophy. I take them one case at a time. And I never would have known that [I voted in favor of property rights] had they not told me after analyzing the cases.
I’ve kind of gone in and anchored myself in the middle of the court. I think that makes me an effective justice, because I am not seen within the court as being on one extreme or the other. And that allows me to work together to build majorities when deciding these difficult cases. And if you can’t build majorities, you’re not that effective. While I’m proud of that, I realize that it’s made me a target—because there are people who don’t necessarily like all of the decisions that the court has made. And they’re the ones who are spending millions of dollars on ads in this campaign.
Shepherd: Is that the biggest misconception about the Supreme Court?
Butler: Well, I think the biggest misconception about the Supreme Court is that—I think, quite honestly, people don’t know what we do. I think the campaigns that have been run in recent years add to that misconception. You see these, for example, tough law-and-order campaigns to get elected. But the Supreme Court doesn’t sentence anybody. We don’t enforce the law in that manner. Our job is to interpret and apply the Constitution to a given set of facts, or to apply the statutes to a given set of facts. And very little of what we do is in criminal cases. But I think that when most people think about the courts, what they’re used to seeing is “Judge Judy” [laughs] or “Law & Order.” My family really likes “Law & Order” and on the rare occasion that I watch it, I sit there and I listen to a judge ruling on an objection—“I’ll allow it”—but that’s not the sort of thing that you’ll hear in a courtroom. It’s “sustained” or “overruled.” But that’s what I think the public is used to.
So when these campaigns come out, and the independent groups weigh in, [they] foster this perception that it’s about locking up criminals. But that misconstrues the job of being on the state Supreme Court. You have to be neutral, impartial, nonpartisan and nonbiased in every single case. We can’t be looking over our shoulders and think that you’re going to upset this group or that group or that you’re going to lose a certain base of support. You can’t make decisions like that. Because the parties that are in [court] are looking for an answer to the problem that brought them to the court. And in finding that resolution we have to be fair.
Shepherd: How has your experience in Milwaukee informed your work on the Supreme Court?
Butler: I’ve lived in Milwaukee since the great snow of 1979. I love Milwaukee; I love where I live in the city. I’ve raised my children here, both of whom are MPS graduates; both of them went to Rufus King High School. I’ve got a daughter who right now is in law school at the UW and hopefully doing well.
So when I think about my living here and the services I have given people here in Milwaukee as an attorney and as a municipal court judge, where we help people get through their problems on a daily basis, to being a circuit court judge and hearing criminal cases and domestic violence cases, and having a presence in the courtroom and understanding the unique problems that our judges are having in Milwaukee—particularly given some of the acrimony with county government over the past few years—I think that my being on the [Supreme Court] has really helped me bring an understanding of what judges are going through and what’s happening in the city, taking that to the conference table at the Supreme Court level so that the other justices have a clear understanding of how this stuff is playing out, what’s really happening at the circuit court level in the city of Milwaukee.
And I think that my experience has given me an opportunity to give a different perspective on how our decisions are going to play out day to day on the lives of people who live in our community. So I think that’s been beneficial. I recall that in the past when we’ve had either appointments or elections to the court, there’s been this big emphasis that we should have someone from Milwaukee on the court. I don’t know that we should have districts, but it kind of makes sense that you should have the largest city sitting at the table. But I don’t hear people talking about that this time. I think it’s an important factor that I have this experience that needs to be at the conference table when we decide the cases. When we decide the administration of justice, it’s helpful there, too.
Shepherd: Do you like campaigning?
Butler: I love the job. You can have the politics. Particularly with the direction that the Supreme Court races have taken in the last two years. These things have gotten ugly. And it’s not appropriate for the dignity of the office that I hold. It’s not appropriate to send these messages out to voters, who get barraged with these messages, in the fashion in which it’s done. And people aren’t learning about the candidates. I am out there. I’m campaigning around the state and traveling all over and meeting people. I’ve gone out there and done what’s necessary to have visibility with the voters through these campaigns.
And my opponent hasn’t done any of that. I don’t know—we have our suspicions that perhaps he has turned his messaging over to these independent shadow groups who don’t have to disclose their donors and you don’t know who’s behind them, don’t know where their money is coming from. But we’ve gone out there and we’ve done what we need to do. But with so much independent money being spent, I’m not sure how many people are going to see the wonderful ads that we’ve put out there. That’s disconcerting.
I do like the part of campaigning that gets me out there with people around the state. I love our state. I go camping every year. So the fact that I get to see different parts of the state and meet with people is important. But I don’t like the stuff that’s being done, in particular the misrepresentation of records and the type of negativity that has gotten into our race.
And I’ve come to the point, quite frankly, where I’ve had enough. For the last month or so, we’ve been hit with these false claims from my opponent and by the independent groups. And we sat down and tried to get out our facts and be aboveboard and run a positive campaign. We’re going to run a positive campaign. But I finally just said, “We’re not going to sit back and be a punching bag for these people who are peddling these insane falsehoods to the public and are misleading them about a race that’s so important to our court.”
This goes to the very integrity of the justice system of the people of Wisconsin. And they have a right to know who we are and they have a right to get a message that’s clear and not misleading. Far be it from me to step on these First Amendment groups—I’m known as a First Amendment nut—but that [the First Amendment] does not give these organizations or my opponent the right to misrepresent and put falsehoods out about my record or about the court.
The only way we’re going to end up getting rid of this stuff is if the voters stand up and say we’re not going to accept this anymore. And if the media takes responsibility and says enough is enough. I mean, when in the history of this state have we ever seen a commercial for the Wisconsin Supreme Court, the highest court in this state, that has a dead body in it? That’s just outrageous. It’s outrageous. What about the family of the victim, who is going to see that ad? It’s running in Madison. That’s where the homicide occurred. What about the family of the victim? What about children who are turning on the TV in the early morning, before school, when that ad is running? What are they going to think about it?
And that doesn’t even go to the falsehoods in the commercial. Falsehoods about my voting record. To say that I side with criminals 60% of the time when analysis of the cases will show, of the cases that we’ve taken, I’ve only voted to overturn convictions 25% of the time. If you look at all of the issues, it’s less than that. When you look at all of the cases including petitions for review, it’s 13% of the time. Yet they’re putting up this 60% figure and it’s ridiculous. How do you combat that?
I’m not going to stand by and be a punching bag. I’m still going to run a positive campaign, but if they’re going to continue to put out falsehoods, we will refute them.
Shepherd: Considering the way that the recent Supreme Court races have become so divisive and influenced by these huge sums of outsiders’ money, do you think that Supreme Court justices and other judges should be elected?
Butler: Quite honestly I’ve always been a fan of having voters in Wisconsin have a say in the decisions about their future. But the operative word in there is “voters.” I don’t think what we’re seeing here is the appropriate way to elect judges or justices. When you see these types of outside shadow groups and the type of money that they’re spending for the express purpose of buying seats on the court—that to me is outrageous.
And that’s one of the reasons why all seven justices on the Supreme Court have signed a letter supporting the general concept of campaign finance reform for judicial races. We don’t support any particular bill or any particular style of proposal. That’s a matter that the Legislature can decide. But any campaign finance reform must be realistic and meaningful and it’s got to take into account First Amendment concerns and it’s got to be large enough to encourage the parties to want to be involved. And it has to deal with independents. And finally it’s got to take into account the taxpayers, which is because they’re going to have to foot the bill. If there is no taxpayer buy-in, it’s not going to work. But I think people are going to have to decide what’s more important—a court that is neutral and detached, nonpartisan, nonbiased and independent, or do you want to have a court where the more money you have, the greater chance you have of being elected? Particularly with these outside groups. That’s the decision that the voters will ultimately have to make. We have expressed a preference for finance reform, but I can’t tell you what that would look like.
Shepherd: What about the Wisconsin Judicial Campaign Integrity Committee (WJCIC), the newly formed independent, nonpartisan watchdog group that is monitoring this race? Is it effective?
Butler: It includes some of the most outstanding individuals in the state. The thing that perturbs me the most with what’s going on in this race—we signed the clean campaign pledge, put together by the State Bar committee, most of whom I don’t know and have never met. I wouldn’t know them if they walked in this room.
Even though I was nervous, because I strongly suspected that my opponent would not sign the pledge, and I was fearful that it would tie my hands behind my back in responding to the garbage that’s out there, we signed it because we thought it was the right thing to do. I signed it because I thought it was important to uphold the integrity of the office I hold. So I said, “I’m going to run a clean campaign.” We bought into it.
My opponent wasn’t going to sign it—probably was of the opinion all along that he wasn’t going to run a clean campaign. So what do you do if you have this group out there that’s going to call you on dirty ads? Well, you demonize the group. So there were these attempts to link the members of the [WJCIC] committee to me. And to show you how ridiculous this is—I was at a Wispolitics.com luncheon about two weeks ago, and this very subject came up. And I answered, “I don’t know most of the people on that committee.” And a woman came up to me afterward and said, “I thought it was interesting that you said you didn’t know the people on the committee.” I said, “Well, I don’t know most of them. I know a couple of them, either through State Bar matters or through my previous life as an attorney. But I don’t know who’s on the committee.” And she said, “I know—I’m one of the members.” To this day I don’t know who she is. I don’t know her name.
Yet [the WJCIC members] were demonized, and I suspect simply so they [the Gableman campaign] would not have to sign the statement and abide by the clean campaign promise.
So what happened then? I’m surprised the media hadn’t picked up on this. They [Gableman’s campaign] don’t sign the pledge that requires us to abide by the code of ethics and they go back to the privacy of their own campaign office and draft their own pledge and say with brazenness, “He [Butler] won’t sign my clean campaign pledge!”
I’m not going to sign onto his press release. We’ve signed onto a clean campaign pledge. It’s ridiculous, but it’s the kind of thing that we have to put up with. And this is a Supreme Court race? A race for the highest judicial office in the state? It doesn’t make sense to me.
Shepherd: Can we discuss a specific case?
Butler: Sure.
Shepherd: The lead paint case.
Butler:Thomas v. Mallett.
Shepherd: Exactly. The Supreme Court allowed a teenager who suffered damages from lead paint to sue paint manufacturers, even though he couldn’t prove which paint manufacturer produced the paint that harmed him. The business community claims that this decision opens up manufacturers to all sorts of lawsuits. Since you wrote the majority opinion for the decision, could you explain why the court decided in favor of allowing Thomas to sue the paint companies?
Butler: [The decision] was controversial because the headline got the decision wrong. I’ve been living in the wake of a headline since then. The reality is that it was an access to justice case.
We had a young child who was harmed by white lead pigment produced by white lead pigment manufacturers who, since 1904, according to their own internal memos, were aware that this product was dangerous and caused the kind of harm that this young man faced. Yet they [the manufacturers] took the position that you can’t bring this case to court against us unless you can prove my white lead pigment caused your harm—notwithstanding that we put this out there, we knew that we put this out there and marketed it as safe when we knew it wasn’t safe. But it’s your responsibility to prove that it was my product [that caused harm to Thomas].
The court looked at that as an access to justice issue. If you had that knowledge and you marketed it as safe and you knew it wasn’t safe, under our prior precedent, a case called Collins v. Eli Lilly, that you could bring an action to court under limited risk contribution theory and you could have the matter heard. You still had to prove that the company was at fault. They could show that it wasn’t their pigment. You had to prevail at trial.
We all know that in retrospect—I don’t want to comment on the merits of the case because it could come before us—but Stephen Thomas lost his case in the Milwaukee County Circuit Court. He could not meet his burden of proof.
We did not change rules of liability for the lead industry or for manufacturers in general. We provided access to justice for a child who had been harmed by a company that was aware that its product was causing harm. It’s as simple as that.
I understand what’s going on. I would be willing to bet that most people have not read the decision. It’s long. It’s 83 pages in length. I know. I wrote it. We felt it was important to outline all of the facts and all of the things that the companies knew when they put this product on the market. We were very careful about that. But because no one’s reading the opinion and everyone is aware of the headline, then the reaction is to the headline.
Then look at what happened. TheWall Street Journal [published an editorial claiming] that we became the “Alabama of the north.” I know my opponent is making a big deal out of this. That our rating for civil liability, according to the U.S. Chamber of Commerce survey, done by their in-house counsel, as a result of that and a couple of other decisions, dropped from 10th to 23rd. That was a big deal. I don’t know if you remember, but they put big billboards up all over the state: “Wisconsin, the Alabama of the north when it comes to the Supreme Court.” And that was it.
But what they didn’t tell you is that after the in-house lawyers had a chance to see our court in operation and they understood what we were doing and they understood the decisions as they were coming down, the vote changed. And in their own survey done in April 2007, according to their in-house lawyers, we have the 10th best litigation climate in the nation. Tenth best. They haven’t told anybody. They aren’t marketing it. They aren’t putting billboards up. In fact, they’re still marketing the fact that we’re the Alabama of the north. My opponent said it at the debate today. But we’re the 10th best in the Chambers’ eyes.
Now this is what we’re dealing with. You select the fact that most fits the argument you want to make and you discount everything else. That’s what we’ve got to put up with.
When we talk about the lead paint case and what it means, there was this big fear that we were going down a path that the court simply hasn’t gone down. That’s why I talk about the Realtors’ analysis. They looked at pro- vs. anti-business issues, and after they looked at it, they were very comfortable with me on the court. I don’t know if that’s a good or bad thing, but that’s the reality.
Shepherd: Are there any other decisions that you want to talk about or clarify?
Butler: I don’t think we need to clarify anything. The Wisconsin Supreme Court has made decisions interpreting the law for the people of Wisconsin. I think it’s ludicrous for my opponent to sit out there and throw mud at the cases without providing a legal analysis about why he thinks something is wrong with them. I think you should press him on it. You should ask him, “What’s wrong with the analysis? Why is this case incorrectly decided?”
My opponent is also claiming that this court released—past tense—a dangerous sex predator out onto the streets of Milwaukee when A, the individual was never released and B, the court never ordered his release. Margaret Farrow also wrote a letter making this claim. Yet when you call my opponent on it, the response is, “Well, the ultimate result of the court’s decision would have been a release but for some coincidence.” What coincidence? The coincidence was that the court didn’t do it. But that’s not what he’s telling you. So he won’t repudiate it, he’s not living by his pledge, he’s not taking back things that are knowingly false—this is what I have to deal with?
It’s kind of hard when you’re dealing with this moving target that every time something comes out, it’s false. And then when you nail him on it, another false thing comes out. I’m not quite sure how you deal with that. And it’s certainly hard to deal with it in 30-second sound bites. It takes too long to explain a decision to a lawyer, much less someone who hasn’t been trained in the law. So in 30 seconds, what do you do? “My opponent is an activist.” What the heck does that mean? You don’t like the result, that’s what it means. But to the average person out there, boy it sounds bad—the man is an activist. But no one knows what it means. It simply means that you don’t agree with the result.
I think it’s important and I think we all have the responsibility to send a very strong message to anyone who’s out there that, in the state of Wisconsin, justice is not for sale. Not now, not ever. I think we have to draw a line in the sand and say we’re not going to tolerate this anymore. This nonsense has got to go. And we’re going to look at the credentials of the candidates and vote for the best person for the court.
