Elections tilt Wisconsin's high court to the right
Associated Press, July 31, 2008
By Ryan Foley
There was no doubt Wisconsin's high court would shift to the right after the election of a conservative justice last year, but the state once dubbed "Alabama north" for its reputation as friendly to trial lawyers has significantly reshaped its image.
In the yearlong term that ended this month, the court's new 4-3 conservative majority issued rulings that will make it harder for victims to win damages in some medical malpractice, product liability and workplace discrimination cases.
Scot Ross, executive director of the liberal group One Wisconsin Now, said, "The conservative Supreme Court has fealty to the business community and not to the people of Wisconsin."
The term was the first after Justice Michael Gableman, a self-described conservative, replaced a liberal on the court to alter the balance of power.
Gableman and Justice Annette Ziegler, a conservative elected in 2007, joined the court after bitter campaigns that echoed a national debate over the proper role of judges. Both railed against "liberal activist judges" they said were writing law instead of interpreting it. Liberal groups accused them of being tools for big business, which spent millions helping get them elected.
Conservatives and business groups have welcomed the change in the state's legal landscape, which they say will help protect businesses from crippling lawsuits. Wisconsin was dubbed "Alabama north" by the Wall Street Journal a few years ago after the high court expanded corporate liability, a reference to Alabama's reputation as a haven for trial lawyers and big damage awards.
"It was a monumental term. The new majority clearly sent a message that the past liberal tendencies of this court are over," said Madison lawyer James Troupis, a conservative court watcher.
He said the court returned "to an appropriate and traditional role" of showing more restraint by deferring to lower courts and narrowly interpreting the meaning of laws. Justices also weren't afraid to rule against sympathetic victims when the law called for it, he said.
"That's exactly what the recent elections were about," he said.
Critics, though, say the justices ignored their campaign promises to fight "judicial activism" when it suited them in order to reach outcomes that they wanted.
"There is a pronounced 4-3 majority that is conservative that is closing the courthouse doors in a way that would limit juries from deciding claims generally," said Mark Thomsen, president of the Wisconsin Association for Justice, which represents trial lawyers.
He said he hoped spending by business interests didn't influence the court "but you have to wonder whether it did."
Scot Ross, executive director of the liberal group One Wisconsin Now, said, "The conservative Supreme Court has fealty to the business community and not to the people of Wisconsin."
The court's new philosophy was prominently on display in its 4-3 decision against a woman whose husband died after a botched surgery. The court dismissed her wrongful death lawsuit, saying it was filed days after the three-year statute of limitations ran out.
The court sided with an insurance company by ruling the clock started when doctors left a sponge in the man's abdomen, not when he died. Justice Patience Roggensack acknowledged the outcome was harsh and will prevent lawsuits by some victims, but said, "Harshness is not a permissible basis for reaching a different conclusion."
She was joined in the majority by Ziegler, Gableman and Justice David Prosser, the conservative bloc.
Dissenting Justice Patrick Crooks said the law was clear that statutes of limitations in wrongful death cases cannot begin until someone has died. The majority's ruling, he said, "unfortunately may foster a public perception that common sense sometimes is lacking in court decisions."
Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley, the two longest-serving justices who are seen as liberals, joined the dissent, as they did in many cases. Crooks wavered back and forth between the two factions during the term.
The court's decisions are usually the last word in legal disputes, but parties occasionally appeal to the U.S. Supreme Court.
Gableman defeated Justice Louis Butler in a hard-fought race and he is still facing the possibility of discipline for lying about Butler's record in a campaign ad. Butler had joined several rulings that angered Wisconsin Manufacturers & Commerce, the state's largest business group, which backed Gableman and Ziegler.
In a sign of the court's shift, it ruled unanimously that victims of lead paint poisoning cannot sue manufacturers for defectively designing the product. The decision limits the potential liability of companies that made lead paint and are facing lawsuits by Milwaukee children who ingested paint chips.
A 2005 decision that allowed those lawsuits in the first place helped spark the backlash from big business against the court.
Butler and three other justices ruled then that childhood victims of lead paint could sue the entire industry for conspiring to sell a product it knew was dangerous for decades. The ruling allowed victims to sue even when they could not pinpoint which company's product made them sick, a prospect that scared manufacturers of all sorts.
Butler, a finalist for a federal judgeship, declined comment on the court's recent term. But Thomsen said Butler's perspective is "dearly missed."
