Some wisdom from Justice David Prosser

Very interesting language from Justice David Prosser, concurring in a decision that denied a motion to vacate an earlier decision of the Court, holding that an attorney named Bob Donohoo should be sanctioned for filing a frivolous defamation action action against Action Wisconsin, an organization promoting the rights and pertinent policy preferences of gays and lesbians. Donohoo argued that Butler was disqualified because he had not disclosed contributions from board members of Action Wisconsin (now known as Fair Wisconsin) and had appeared at a fundraiser for a PAC promoting the same issues as Fair Wisconsin and that later endorsed him. Butler also received (although he had disclosed) contributions from Action Wisconsin's attorneys, one of whom wrote an op-ed endorsing his candidacy for the Court.


I think that the Court got the original decision wrong. As I blogged at the time he was initially sanctioned, I would not have brought the case that Donohoo did because - putting aside whatever one thinks of his client who seems pretty unsympathetic - I don't believe that the likelihood of success for the client would have been worth the effort. But, in my mind, that's not the same as a claim being frivolous. I don't think that the statute forbidding such claims was intended to prohibit lawyers and parties from taking a long shot. There just has to be some real chance of prevailing and I think there was in the case that he brought. If I had been the judge, I think I would have dismissed it but I wouldn't have sanctioned him.

But the Court was right to deny his motion to vacate. Justice Butler was not disqualified from hearing the case. It was an ideologically charged matter. It's not surprising that people who are political liberals were associated in some way with Action Wisconsin. It's not surprising that some of those same political liberals would contribute to Justice Butler's campaign. To argue that a justice is disqualified as a matter of law in such cases would be to frustrate the will of the voters (and, in the case of an appointed justice who has not yet faced election, the Governor) who, under our state constitution, have the right to determine the composition of the court. Respecting that right means, I think, that Justices should recuse themselves (or be disqualified) only for the starkest conflicts or when the Justice herself believes that she cannot be open minded.

Justice Prosser takes aim at the pressure currently being brought to bear upon Justices and observes that it presents a danger that they will recuse themselves when they ought not to do so.

He then fires this shot across the bow of those who believe that judicial elections have become overly politicized:

¶62 It is entirely reasonable to have a dispassionate discussion on the role of public funding in judicial campaigns. But people who care about the judiciary must also look long and hard at why supreme court elections have become so contentious and expensive.

¶63 A court that is in the vanguard of making and changing law in a way that greatly benefits some interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections. Every litigant believes he is entitled to an impartial review of his case. If litigants do not believe they can get an impartial review of their cases, they will inevitably attempt to change the composition of the court.