I had a very pleasant morning in Madison speaking about the Wisconsin Supreme Court with members of the Center Right Coalition. Denizens of the local blogosphere might have recognized attendees like Steve Eggleston, Brian Fraley, Christian Schneider, Jo Egelhoff and Deb Jordahl. (If I missed anyone, I apologize.) A number of other political movers and shakers were also present.
I then came home and hosted a very enjoyable and pleasant discussion of the presidential elections with some faculty colleagues of varying political bents and, finally, sat civilly at the US Cellular Arena while the Reddess, clad in the cardinal and white of her alma mater, cheered (kindly and gently) Wisconsin's obliteration of my inept and uninspiring Milwaukee Panthers. So I am feeling very civic.
Some of the questions and comments in Madison were around the newly formed Wisconsin Judicial Campaign Integrity Committee, a group of private citizens that proposes to comment on the nature of campaign discourse in the coming Supreme Court election.
One Wisconsin Now has apparently "filed" a complaint (actually asked this group to comment) on some campaign literature distributed by candidate Michael Gableman. It has announced that the group has "accepted" its complaint (more accurately, it has said it may comment on the issue OWN has raised).
I have not seen the literature in question but apparently it criticizes certain past decisions of the Court in which the incumbent Louis Butler was in the majority. OWN wonders whether (more accurately argues that) this is in violation of SCR 60.06(3)(b) which says that a judge or candidate for judicial office shall not "with respect to cases, controversies, or issues that are likely to come before the court, pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office." OWN suggests that some of these cases "concern" issues that could return to the court "in another consideration of the same issues."
A few things should be kept in mind as we work our way through this. First, this rule implicates First Amendment concerns. In a case called Republican Party of Minnesota v. White<, the Supreme Court considered a rule of judicial ethics in Minnesota that precluded judges or judicial candidates from announcing his or her views on disputed legal issues. It held the rule unconstitutional as an infringement of free speech unjustified by any state interest in ensuring judicial impartiality.
Here in Wisconsin, Wisconsin Right to Life send questionnaires to judicial candidates asking for their personal views on certain issues that might be involved in future cases. Some candidates declined to answer, stating that this rule (and a few others) precluded them from answering.
In Duwe v. Alexander, a federal district court held that this rule (and others) did not or constitutionally could not preclude answers to the relevant questions. With respect to 60.06(3)(b), the district court (Judge Shabaz) said that 60.06(3)(b) was constitutional on its face, but apparently only because he read it to apply only to an actual commitment to decide a case in a particular way. He held tht it could not be applied to bar answers to WRTL's questions. An opinion or statement of a predisposition on an issue was not barred by the rule.
I think, then, that it is highly unlikely that this rule could be constitutionally applied to prohibit judges or judicial candidates from discussing past decisions of a court. In fact, when Justice Butler spoke recently at Marquette University Law School, he discussed several of the more controversial cases from the past few terms and these cases did, as almost every case does, involve issues that might come before the court again, particularly "in another consideration of the same issues."
I don't criticize him for that. To the contrary, even though I strongly disagree with the outcome in at least one of the cases he discussed, I applaud him for his candor. It's what we ought to be talking about.