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New high-court ethics rules should not, will not stand

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Mike McCabe
November 4, 2009

It was widely reported that the Wisconsin Supreme Court approved new rules Oct. 28 that allow judges to rule on cases involving their biggest campaign contributors.


Less widely noted was the fact that the rules were written by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association and adopted by the court without a single change. Thatís right, two of the most powerful lobbying groups in our state were allowed to write a major new portion of the state judicial ethics code.


Not found at all in the news coverage of the courtís action is an important question: When these new rules are applied in the future to real-life cases, will the results be in keeping with the U.S. Constitution?


Judging from the U.S. Supreme Courtís ruling this past June in a West Virginia case, Caperton v. Massey, the answer is clear.


A coal company executive spent $3 million getting a judge elected to the West Virginia Supreme Court, and that judge went on to cast the deciding vote to overturn a $50 million judgment against the company. The U.S. Supreme Court ruled that the conflict of interest should have resulted in the judgeís disqualification from the case and that the other side was denied a fair trial and had its constitutional right to due process violated by his participation.


Wisconsin saw a very similar scenario play out just last year. Wisconsin Manufacturers & Commerce was involved in a dispute over whether computer software purchased by a business should be taxed. A lower court said it should. The state Supreme Court reversed that decision. Justice Annette Ziegler supplied the deciding vote in a 4-3 ruling and wrote the opinion overturning the lower court just a year after WMC had spent some $2.2 million to help get her elected.


In the next election, WMC spent at least another $1.8 million to help get Michael Gableman elected to the state Supreme Court. Now if another case involving WMC comes before the court, the new rules that WMC and the Realtors wrote will allow Ziegler and Gableman to participate in the case even though WMC spent $4 million to put them on the court.


In Caperton v. Massey, the U.S. Supreme Court ruled that spending $3 million to elect a judge and then having that judge hear your case violates the Constitutionís guarantee of due process and denies the other side a fair trial. If what happened in West Virginia was unconstitutional, then spending $4 million to elect two judges and then having those judges take part in deciding your case is even more so.


Allowing judges to sit on cases involving their biggest campaign supporters is wrong on its face. That the Wisconsin Supreme Courtís majority allowed two powerful lobbying groups to write these new ethics rules for them adds insult to injury. And as the U.S. Supreme Courtís decision in Caperton makes very clear, the conduct being permitted in Wisconsin tramples one of our most basic rights.


Mike McCabe is executive director of the Wisconsin Democracy Campaign, 210 N. Bassett St., Suite 215, Madison, WI 53703; phone (608) 255-4260; e-mail wisdc@wisdc.org.

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