Tuesday, April 05, 2011

The Caperton Problem

On Charlie Sykes show this morning, we talked about Joanne Kloppenburg having a potential Caperton problem on the budget repair bill. Here's the low down. In Caperton v. A.T. Massey Coal Company, the United States Supreme Court held that a judge who has benefited from extraordinary spending by a party with a case that is pending or quite likely to come before the Court may have a constitutional obligation to recuse himself. This is particularly so when that spending and support has has a disproportionate effect on the election. In Caperton, Massey had a huge case that was almost certain to come before the West Virgina Supreme Court. Its CEO spent millions of dollars on behalf of a successful challenger and that challenger refused to step aside in Massey's case. He voted in Massey's favor and the US Supreme Court set aside the decision.

I have done some scholarly work on Caperton in which I argue that it should be read narrowly. But even a fairly narrow reading suggests a potential Caperton problem here. It is in fact a more extreme case than Caperton. Joanne Kloppenburg was almost certain to lose the election prior to the furor over the budget repair bill. In the February primary, Jusice Prosser waxed the field.

Since then public employee unions have, in President Obama's term, got all "wee-wee'd up." They have made a concerted effort to turn the race into a referendum on the budget repair bill and are pouring a lot of money into the race. The bill, while it will not devastate public employees, may well constitute an existential threat to the unions. In states where employees have been given a choice about whether to pay dues, as many as 95% have declined to do so.

Challenges to that bill are pending. In Caperton's terms, there is a potential for a "debt of gratitude" on the part of Kloppenburg to the unions such that there will be the potential for or appearance of a threat to her impartiality. She has, in fact, fanned that flame by winking at the "Prosser is Walker" theme and talking about listening to the voices of the protesters. But Caperton doesn't require that she be actually biased, only that circumstances are such that a jusge might be unable to hold the balance "narrow, straight and true." It is an objective test.

In fact, we may have a stronger case for recusal here than in Caperton. It was far from clear that the money spent in Caperton had an extraordinary impact on the election. Others spent large sums as well and there were all sorts of other reasons that the incumbent lost. If Ms. Kloppenburg wins today, it will be entirely due to the budget repair bill and ensuing efforts to turn the race into a referendum on that bill. Unlike Caperton (in which Massey's case was not an electoral issue), the election will have been about a matter likely to come before the Court.

How this will play out is unclear. The conservative wing on the Wisconsin Supreme Court has - wrongly in my view - said that the court has no power to enforce Caperton and Kloppenburg has - prematurely in my view because she cannot yet know all the pertinent facts - said that she will not recuse. In fact, saying that you won't recuse might be viewed as promising to rule in a certain way on a guestion likely to come before the court, i.e., the request to recuse. (Remember the fact that she believes she can be impartial is not dispositive under Caperton.) If she declines to recuse, the conservative wing of the Court would presumably still take the position that she cannot be compelled to do so.

But if she wins and does not step aside, any decision invalidating the budget repair bill may become subject to United States Supreme Court review. Again the breakdown of votes is confounding, since the conservatives on the Court dissented in Caperton.

But here's a potential scenario. I honestly don't know how David Prosser will vote on challenges to the budget repair bill. I wouldn't expect him to support the open meetings challenge but then I don't expect Pat Crooks to do so either. It's weak.

But I could be wrong. And maybe there are other challenges that will have more merit. All are likely to be based on structural limits on government action and a conservative jurist might be inclined to construe those limits broadly. If the unions defeat Prosser, might they be losing a fourth vote to invalidate the bill and electing someone who will be unable to sit?


Nick said...

Of course, isn't this one of the reasons why we ELECT instead of appoint judges? In a post a couple months ago regarding the "Candor" of Prosser, you stated:

"Judicial candidates who claim the mantle of restraint also tend to tell us how they will exercise whatever amount of discretion they have. They claim to be "conservatives" so that, it turns out, we know that when they feel free or compelled to make ideological judgments they will do so from a more conservative perspective. So Justice David Prosser tells us that he is a champion of judicial restraint. I think that he is. But he also tells us that he is a conservative.
But they don't tell us how they see things. We know, for example, that candidates such as Marla Stephens and Joanne Kloppenburg have problems with the current conservative majority on the Court. But they won't match Prosser's candor. They won't tell us that they are liberals."

So if we are to encourage candidates to tell us whether they are liberal or conservative, then why is it a problem (or a surprise) that liberal groups, or conservative groups, would then support them.

And in fact, if the point of a justice being candid about their view is to encourage people to vote for them because they want that view upheld on the court, then why is any of this a problem?

If a majority of Wisconsinites vote for Kloppenburg, and it is their understanding that doing so would mean she rules against the Collective Bargaining bill... isn't that the point of elected justices?

If not, then Justices should be running on the idea of being impartial, which actually Kloppenburg's latest commercials are trying to do. But then you'd say she's not being candid. Seems like a damned if you do, damned if you don't situation.

I do understand your point, and I actually agree with it for the most part. But that doesn't seem to be how our system is really set up.

Display Name said...

"Winking" isn't a form of speech?

A campaign manager's first press release saying the candidate will be a complement to Walker isn't a wink? More a nod? A dog-whistle to the annointed?

George Mitchell said...

Justice Prosser's "complement" comment was a mistake that I think he has acknowledged. Much more relevant are the several hundred decisions in which he has participated, establishing him as a judge who is hard to typecast. I am unaware of any rulings that Kloppenburg has objected to; perhaps there are some.

More to the point, if Kloppenburg is elected no reasonable observer will deny that it was due to the active support of groups with a specific agenda and a specific expectation of how she might rule. That is her "Caperton" problem. Justice Prosser, on the other hand, will not have a Caperton problem.

The Caperton decision, by the way, is regrettable.

I once shared Nick's view that it was no big deal if judges tip their hand. As a matter of free speech, I think they have the right to do that. But I was sternly lectured by a current and highly respected judge on the matter. This jurist said that while a judge might have the right to say something it was highly inappropriate to do anything beyond (1) citing one's actual record in decided cases and (2) explaining one's general judicial philosophy. This advice seems to make a lot of sense.

Anonymous said...

Puh-leez. Prosser's campaign manager says he'll be Walker's man on the Supreme Court, and it's Kloppenburg who's got the Caperton problem? And Prosser might vote to affirm Judge Sumi? Have ye taken complete leave of your senses, man? In your further flight of fancy, you imagine this case wending its way before Justice Kloppenburg next fall, and from thence to the U.S. Supreme Court, while Walker and the brothers Fitz stubbornly refuse a do-over. Walker says the budget repair bill would save the State $30 million by this summer and $300 million in the next two years, while it would save local governments $724 million in the next year. Is it the principle of the thing that's at stake? Or are the votes not there for the do-over?

Geo mitchell said...

Pls provide the campaign mgr's statement and any evidence that he speaks for prosser

Anonymous said...

"Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new administration and legislature."

He's the campaign manager. Duh.

Anonymous said...

Did George just fall off the cabbage truck?

seo ottawa said...

Let's vote on whether unions represent the working class. Wisconsin has a referendum. Let the people decide and not one man who never ran on this issue in the first place. Are you guys afraid of something?

xoff said...

I am truly puzzled that Prosser could benefit from $1.4-million in spending by WMC, which clearly has an interest in the budget review bill, but we are talking about a Caperton problem for Kloppenburg?

Rick Esenberg said...


As I said on WPR tonight, you have to hold the ideas of impartiality and perspective in your mind at the same time. Saying you are conservative is not the same as saying that you will support Scott Walker or vote to overturn the budget repair bill - or hinting at those results.

Beyond that, there is a difference between saying you have a perspective and getting the support of people who share that perspective and getting elected behind a particular case. I could go on - indeed I have a recently published scholarly article on Caperton and I am critical of the decison - but believe me she would have a Caperton problem if she wins. I'm not saying that it should go one way or the other. But if you take that case seriously, there is an issue. eginning to look unlikely.

Unknown said...

According to the Wisconsin Supreme Court rule on recusal, if it is a legal contribution, there is no need for recusal. There is no allegation that the contributions to a 504(c)(4) are illegal. Therefore, no problem in Wisconsin.

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