Louis Butler
From Judgepedia
Louis B. Butler, Jr. is a former justice on the Wisconsin Supreme Court, having served on the court from August 2004-July 2008. Justice Butler was appointed to the Supreme Court by Governor Jim Doyle (D) in August 2004, becoming the first African-American Supreme Court justice in Wisconsin history. He subsequently lost his seat in a highly publicized Supreme Court race with Michael Gableman.
Legal Education and Experience
Born in Chicago, Justice Butler was raised on the city’s south side. He earned his bachelor’s degree from Lawrence University in Appleton in 1973 and his law degree from the University of Wisconsin Law School in 1977.
After serving as an assistant state public defender from 1979 to 1992, Justice Butler was appointed to the Milwaukee Municipal Court. He served as a municipal judge until 2002, when he was elected to Branch 9 of the Milwaukee County Circuit Court.[1]
In Front of the U.S. Supreme Court: 1998
Hear audio of Justice Butler before the Supreme Court in Ellis T. McCoy, Etc., v. court of Appeals of Wisconsin, District 1
Excerpts:
"During the oral arguments, Justice Scalia asked if he thought it was appropriate for state paid lawyers to file frivolous appeals."[1]
(5:10)
Butler: I can’t imagine a client paying a lawyer to go in and argue that his case is wholly frivolous.
Justice Scalia: What we’ve got a is case where the paying client, if he’s got a conscientious lawyer, would say to him you’re going to waste your money. I’m telling you that in advance. It’s not worth the five thousand dollars to file this. Of course, if you want to throw your money away, I’ll file your papers for you. What you’re saying is the poor defendant is entitled to have the state waste the same amount of money.
Butler: That’s correct.
(19:28)
Butler: If you liken this to a trial situation, this would be akin to a lawyer coming in a on the eve of the trial evaluating the case, telling the client, it’s obvious that you’re guilty, it’s obvious that we don’t have a prayer, we ought to plead and take the best deal possible and the client says no I want a trial and the lawyer says no I’m going to plead you guilty.
Justice Rehnquist: Mr. Butler, I think there is a good deal of difference between a trial situation where the burden of proof is always on the government and any competent attorney knows that he represents a defendant simply by putting the government to its proof, just by cross examining. On the other hand on appeal, you get into situations, which I dare say you’ve confronted some yourself having filed two Anders briefs, the burden of proof is no longer on the government, the burden of proof is on the appellant and there’s virtually nothing to complain about. Everything that you asked the trial court to do, the trial court did. The jury still returned a verdict of guilty.
Butler: It is precisely because in an appellate situation that the burden is now on the defendant, precisely because a defendant now needs a lawyer to act as a sword to overturn that appeal. It is for that very reason that role of counsel becomes critical in appeal. It’s critical at that point. He needs more help there so that he can come in and try to overturn the appeal.
In the end, Louis Butler lost his appeal when the U.S. Supreme Court upheld the Wisconsin Supreme Court ruling. Wisconsin taxpayers picked up the tab.[1]
The Supreme Court concluded:
We also do not find that the Wisconsin Rule burdens an indigent defendant’s right to effective representation on appeal or to due process on appeal. We have already rejected the contention that by filing a motion to withdraw on the ground that the appeal is frivolous counsel to an indigent defendant denies his or her client effective assistance of counsel or provides a lesser quality of representation than an affluent defendant could obtain. If an attorney can advise the court of his or her conclusion that an appeal is frivolous without impairment of the client’s fundamental rights, it must follow that no constitutional deprivation occurs when the attorney explains the basis for that conclusion. A supported conclusion that the appeal is frivolous does not implicate Sixth or Fourteenth Amendment concerns to any greater extent than does a bald conclusion. [486 U.S. 429, 444]
Wisconsin Supreme Court Races
2000 Election
In 2000, Justice Butler was a Milwaukee County Municipal Judge; he ran against Supreme Court Justice Diane Sykes for her seat on the Supreme Court and lost.
2004
In 2004, Butler became the first Wisconsin Supreme Court justice to be appointed by a Democratic Governor. Under the Wisconsin Constitution, the appointment did not require legislative approval.
At the time of the appointment, Governor Jim Doyle said: "I have known Judge Butler for many years. He is exceptionally qualified and highly intelligent. He is known for his fairness, his sense of justice, and his lifelong commitment to public service."[1]
Butler was appointed to take Justice Diane Sykes's vacated seat, as she had been appointed by President George W. Bush to serve as a federal judge to the United States Seventh Circuit Court of Appeals. He was sworn in on August 25, 2004.
2008
Justice Butler is seeking to renew his seat on the Wisconsin Supreme Court this year. He is challenged by Burnett County Circuit Court Judge Michael Gableman. The winner will serve a 10-year term. See the page for Wisconsin Supreme Court Race (2008).
Due to advertising tactics used on his behalf during the 2008 campaign, Justice Butler faces complaints filed with the state's Judicial Commission.[1]
Awards, Memberships and Civic Activities
Justice Butler is the recipient of numerous awards. In 2006, he was named “Humanitarian of the Year” by the American Federation of Teachers, Local 212. In 2005, he won the NAACP Foot Soldiers’ Award and the Outstanding Citizen’s Award from the Wisconsin Council of Deliberations, Prince Hall Masons. He also received the 2002 and 2004 Trail Blazer Award presented by Alpha Kappa Alpha Sorority.
Justice Butler is a permanent member of the faculty of the National Judicial College in Reno, where judges from around nation take continuing education classes, and serves as a member of the bench in the Southwestern Law School Moot Court Competition in Los Angeles. He also was an adjunct assistant professor of law at Marquette Law School. Justice Butler is a member of the State Bar of Wisconsin, Milwaukee Bar Association, NAACP, Wisconsin Association of African-American Lawyers, Community Brainstorming Conference, Personnel Review Board, and James E. Doyle Chapter of the American Inns of Court.
In the News: Articles
Since Butler joined the bench, much has been written about the advancement of judicial activism on the state's highest court. Rick Esenberg wrote for the Wisconsin Policy Research Institute:
"Public commentary about the Wisconsin Supreme Court as "activist" began in earnest following the 2004-2005 term, the first following the resignation of Justice Sykes...and her replacement by Justice Louis Butler....Susan Steingrass, a law professor at the University of Wisconsin, observed that '[i]t's an interesting court to watch now. Nothing's for sure....' Joseph Kearney [dean of Marquette University Law School] observed that 'by any measure, this was an extraordinary year at the Wisconsin Supreme Court.' According to Kearney, '[f]rom tort law to criminal law, the court was willing to depart from what had seemed to be settled approaches.'"[1]
Audio From March 28, 2008 Debate with Michael Gableman
Wisconsin Public Radio (Real Player needed)
Video From March 25, 2008 Debate with Michael Gableman
Campaign Videos
Justice Butler's Campaign Videos can be viewed on JUSTICE BUTLER'S HOMEPAGE, HERE
In His Own Words
Letter to the Milwaukee Journal Sentinel:
- Re: But they owe public a debate
- Published: January 21, 2000
In Wisconsin, justices of the Supreme Court are elected to 10-year terms. It is the people, not an appointive system, who determine who should sit on the high court. Inherent in the peoples’ right to vote is the need for an educated electorate. In order for the residents of our state to make an educated decision on April 4, it is the candidates’ responsibility to demonstrate who we are, why we are running, whether we are qualified and how we approach analyzing the law.
It is not a true election process if the voters have to guess candidates’ qualities and credentials. Nor should people have to depend on 30-second sound bites on television to determine who is qualified. Voters are entitled to a meaningful debate as a basic necessity of democracy.
That is why I agree with the fundamental premise of the Jan. 17 Journal Sentinel editorial “Voters need more than this.” Voters need to know whether we have the ability to interpret the law — not what we want the law to be, but what the law is.
So what does the judicial code say? The words of the judicial code of ethics preclude public comment about cases that are “pending or impending” if the comments could affect the outcome of the case. This requirement ends “upon final disposition,” when the case is over.
Furthermore, as judges we are not permitted to commit ourselves in advance with respect to “any particular case or controversy,” and we should not administer the office with bias or favor.
Legal commentary on the code acknowledges that we are entitled to our personal views on political questions, and the code allows us to speak and participate in other extra-judicial activities concerning the law.
Nothing in the code prohibits judges from commenting on legal issues or past cases. What does it say about a judge’s approach to interpreting the Constitution if he or she interprets this code as prohibiting us from discussing any legal issue?
The Jan. 19 letter to the editor from Thomas Shriner, in support of an approach that bars discussion of all legal issues, should be tempered by the fact that he served on the very judicial selection panel that recommended the finalists for appointment to the Supreme Court by the governor and has since endorsed the interim justice appointed by the governor, Diane Sykes.
Judges are not above the law nor are we a privileged class. No one is entitled to a job on the high court. The people determine who should serve and the people have a right to evaluate our abilities.
After all, if we cannot talk about the law, what criteria can a voter use to make his or her decision? While it is our responsibility to keep the election clean and dignified, this can be done while we educate the public in our ability to analyze the law.
Of course, my 20 years of legal experience, which includes my background as a trial judge, my extensive trial and appellate experience, and the fact that I teach judges across the nation, is important. But voters deserve to know more.
It is still an election — an election for the Supreme Court of Wisconsin. We must debate issues and debate in public forums. That is democracy in action.
For my part, I am willing to discuss all issues relevant to this election and allowed by the code. This includes discussions of the law and of past cases. This includes issues concerning campaign finance reform. This includes issues of open government.
I will not hide from the voter or from my opponent under a veil of secrecy that has no support in the wording of the code. While we must be prudent, I will discuss issues concerning justice for this state. And I encourage my opponent to do the same.
It’s the public’s right, and we owe it to the people we seek to serve.
Louis B. Butler Municipal Judge, Milwaukee
Quotes[1]
"I have trouble when different organizations take the time to write judges on whether a decision is in their interest ... I'm appalled talk show hosts give out the names and addresses of judges."
"Attacks on judges are an attack on the legal system and justice itself."
"Do you really want a court that is afraid to act because of popular opinion?"
"We are duty bound to protect our judges' integrity and the legal system."
"A judge's decision is to be to be fair, impartial and not according to a whim or fear of the latest opinion poll."
"Intimidation by extreme rhetoric and the threat of physical violence threatens judges as well as the Constitution itself."
Liability Expansion Rating
Judge Butler Earns Low Rating for Liability Expansion (Judicial Evaluation Institute)
On the Issues
On Abortion
On Criminal Justice
- Justice Louis B. Butler, Jr. dissented from the majority opinion, instead concluding that a criminal defendant who was convicted by a jury of being selling illegal narcotics was entitled to a new trial, because it was mentioned during the trial that a recipient of the illegal narcotics had died of a drug overdose from their ingestion, and that this information likely had an unduly prejudicial effect on the jury.
- Justice Butler authored the majority opinion, which concluded, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser, that Article I, Section 8 of the Wisconsin Constitution provided greater protection to criminal defendants than does the identically worded Fifth Amendment to the United States Constitution. In so holding the Majority found that a bloody sweatshirt was inadmissible as evidence in a murder case because the defendant told police officers of its location prior to being read his Miranda rights. The Court stated "[w]e conclude that the fruit of the poisonous tree doctrine applies under the circumstances of this case under Article I, Section 8 of the Wisconsin Constitution. Where physical evidence is obtained as the direct result of an intentional violation of Miranda rights, we conclude that Wisconsin Constitution requires that the evidence must be suppressed.
- Justice Butler concurred in the majority opinion, and wrote a separate concurring opinion, noting that a prisoner was entitled to raise the argument that he had recieved ineffective assistance of counsel at his trail sixteen (16) years after that trial was over.
On Class Actions & Class Action Abuse
- Justice Louis B. Butler, Jr. authored the majority opinion, which, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser, concluded that Retail buyer of used automobile was entitled to award of "reasonable costs," in pursuing claim under statute prohibiting unsavory practices in the retail sale or lease of a motor vehicle, and not just “taxable costs” as specified in the rule actually governing the matter in civil actions, even though such costs would possibly exceed the total recovery under the statute. The dissent heavily criticized the Majority decision, noting that it ignored the plain-language of the statute in order to obtain a plaintiff-friendly result.
- Justice Butler authored the majority opinion, which concluded, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser amongst other things, (1) that because [the plaintiff] cannot prove the specific type of white lead carbonate he ingested, he need only prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses' existence; and (2) Once [the plaintiff] makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. The Majority further opined that, if relevant records do not exist that can substantiate either defense, “we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers].”
* ON ALTERNATIVE REMEDIES AGAINST LANDLORDS: "Thomas claims his injuries were caused by two separate wrongs: first, by the negligence of his landlords; second, by the Pigment Manufacturers for negligently manufacturing and marketing white lead carbonate as safe. While we agree with the Pigment Manufacturers that landlords are in the best position to contain the dangers of lead pigment in paint once the paint has been applied, landlords are not to blame for the fact that the lead pigment in the paint is poisonous in the first instance.
* ON THE COMMON LAW AND PRECEDENT:'' "Th[e] 'common law,' however, is frequently refined by this court, consistent with the dynamic principle that “allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose.”
* ON CREATING ECONOMIC UNCERTAINTY: "Civil Trial Counsel's chief criticism is that this proposition cannot be maintained in some principled way, thereby creating uncertainty in a number of cases. Although this criticism carries facial appeal, the goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing. The common law develops to adapt to the changing needs of society. This is, as it has been called, its “'genius.'”
* ON THE COMMON LAW AND PRECEDENT: "Although there are those who champion rigid rules with clear delineations, the fact is that the “[c]ommon law is law subject to continuing judicial development, including abrogation.” Indeed, this process of continuing refinement is a vital component of judicial power. If in the name of certainty this court simply deferred to the eras of days passed, we would “ succumb to a rule that a judge should let others long dead and unaware of the problems of the age in which he [or she] lives, do his thinking for him [or her].” (Citations omitted).
* ON DICTATING SOCIAL POLICY: "Notwithstanding that the common law is designed to adapt to changing needs of society, the dissent declares that “[s]imply put, the majority opinion amounts to little more than this court dictating social policy to achieve a desired result.” Wilcox, J., dissenting. Further, the dissent states that the “majority cannot hide the fact” that the court's decision is “results-oriented.” This type of sensationalized judicial rhetoric is regrettably becoming all the more common, but it does nothing more than obscure the issue to be answered in the instant case."
* ON EXPANDING ON/DEPARTING FROM PRIOR PRECEDENT: "Although this case is not identical to Collins, we conclude that it is factually similar such that the risk-contribution theory applies."
* ON IMPOSING LIABILITY ON INNOCENT BUSINESSES: "As a prefatory note, as this court did in Collins with DES cases, we recognize that cases involving lead poisoning stemming from lead pigment pose difficult problems. The entirely innocent plaintiffs may have been severely harmed by a substance they had no control over, and they may never know or be able to prove with certainty which manufacturer produced or promoted the white lead carbonate that caused the injuries. (citations omitted). The Pigment Manufacturers are faced with possible liability for white lead carbonate they may not have produced or marketed. As this court did in Collins, we again conclude 'that as between the plaintiff, who probably is not at fault, and the defendants, who may have provided the product which caused the injury, the interests of justice and fundamental fairness demand that the latter should bear the cost of injury.'"
* ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING 'DEEP POCKETS': "Second, as compared to Thomas, the Pigment Manufacturers are in a better position to absorb the cost of the injury. They can insure themselves against liability, absorb the damage award, or pass the cost along to the consuming public as a cost of doing business."
* ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING: "[T]he Pigment Manufacturers note that the paint Thomas allegedly ingested could have been applied at any time between construction of the two houses in 1900 and 1905 and the ban on lead paint in 1978. This significant time span greatly exceeds the nine-month window during which a plaintiff's mother would have taken DES, the Pigment Manufacturers note. Given that Collins attempted to strike a balance between assuring a DES plaintiff had a remedy and providing a realistic opportunity to each DES pill manufacturer to prove that it could not have caused the plaintiff's harm (by establishing its DES could not have reached the mother during her pregnancy), the Pigment Manufacturers contend that Collins should not be extended given that they have no reasonable ability to exculpate themselves. We recognize that the window during which the possible injury causing white lead carbonate was placed in a house that eventually harmed Thomas is drastically larger than a nine-month window for pregnancy. However, the window will not always be potentially as large as appears in this case. Even if it routinely will be, the Pigment Manufacturers' argument must be put into perspective: they are essentially arguing that their negligent conduct should be excused because they got away with it for too long. As Thomas says, the Pigment Manufacturers “are arguing that they should not be held liable under the risk contribution doctrine because of the magnitude of their wrongful conduct.”
* ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING: Second, the record is replete with evidence that shows the Pigment Manufacturers actually magnified the risk through their aggressive promotion of white lead carbonate, even despite the awareness of the toxicity of lead. In either case, whoever had “exclusive” control over the white lead carbonate is immaterial.
On Contract Enforcement
On the Death Penalty
On Discrimination and Equal Protection
On Education
On Elections Law
On Employer and Employee Rights
- Justice Butler authored the majority opinion, which concluded, over vigorous dissent, that Wisconsin employers were required to extend "clemency" to employees who were absent from work for medical reasons, even where many of the absences are unrelated to medical reasons. In doing so, the Majority effectively eviscerates any employer attendance requirements. According to the dissent, authored by David T. Prosser, the Majority's rule "requires an employer to suspend its attendance requirements even if an employee fails to submit medical documentation confirming that his absence was disability related."
On Government Accountability
On Negligence
On Personal Responsibility
On Property Rights
Regulation
- Justice Butler authored the majority opinion, which concluded, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser amongst other things, (1) that because [the plaintiff] cannot prove the specific type of white lead carbonate he ingested, he need only prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses' existence; and (2) Once [the plaintiff] makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. The Majority further opined that, if relevant records do not exist that can substantiate either defense, “we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers].”
* ON ALTERNATIVE REMEDIES AGAINST LANDLORDS: "Thomas claims his injuries were caused by two separate wrongs: first, by the negligence of his landlords; second, by the Pigment Manufacturers for negligently manufacturing and marketing white lead carbonate as safe. While we agree with the Pigment Manufacturers that landlords are in the best position to contain the dangers of lead pigment in paint once the paint has been applied, landlords are not to blame for the fact that the lead pigment in the paint is poisonous in the first instance.
* ON THE COMMON LAW AND PRECEDENT:'' "Th[e] 'common law,' however, is frequently refined by this court, consistent with the dynamic principle that “allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose.”
* ON CREATING ECONOMIC UNCERTAINTY: "Civil Trial Counsel's chief criticism is that this proposition cannot be maintained in some principled way, thereby creating uncertainty in a number of cases. Although this criticism carries facial appeal, the goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing. The common law develops to adapt to the changing needs of society. This is, as it has been called, its “'genius.'”
* ON THE COMMON LAW AND PRECEDENT: "Although there are those who champion rigid rules with clear delineations, the fact is that the “[c]ommon law is law subject to continuing judicial development, including abrogation.” Indeed, this process of continuing refinement is a vital component of judicial power. If in the name of certainty this court simply deferred to the eras of days passed, we would “ succumb to a rule that a judge should let others long dead and unaware of the problems of the age in which he [or she] lives, do his thinking for him [or her].” (Citations omitted).
* ON DICTATING SOCIAL POLICY: "Notwithstanding that the common law is designed to adapt to changing needs of society, the dissent declares that “[s]imply put, the majority opinion amounts to little more than this court dictating social policy to achieve a desired result.” Wilcox, J., dissenting. Further, the dissent states that the “majority cannot hide the fact” that the court's decision is “results-oriented.” This type of sensationalized judicial rhetoric is regrettably becoming all the more common, but it does nothing more than obscure the issue to be answered in the instant case."
* ON EXPANDING ON/DEPARTING FROM PRIOR PRECEDENT: "Although this case is not identical to Collins, we conclude that it is factually similar such that the risk-contribution theory applies."
* ON IMPOSING LIABILITY ON INNOCENT BUSINESSES: "As a prefatory note, as this court did in Collins with DES cases, we recognize that cases involving lead poisoning stemming from lead pigment pose difficult problems. The entirely innocent plaintiffs may have been severely harmed by a substance they had no control over, and they may never know or be able to prove with certainty which manufacturer produced or promoted the white lead carbonate that caused the injuries. (citations omitted). The Pigment Manufacturers are faced with possible liability for white lead carbonate they may not have produced or marketed. As this court did in Collins, we again conclude 'that as between the plaintiff, who probably is not at fault, and the defendants, who may have provided the product which caused the injury, the interests of justice and fundamental fairness demand that the latter should bear the cost of injury.'"
* ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING 'DEEP POCKETS': "Second, as compared to Thomas, the Pigment Manufacturers are in a better position to absorb the cost of the injury. They can insure themselves against liability, absorb the damage award, or pass the cost along to the consuming public as a cost of doing business."
* ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING: "[T]he Pigment Manufacturers note that the paint Thomas allegedly ingested could have been applied at any time between construction of the two houses in 1900 and 1905 and the ban on lead paint in 1978. This significant time span greatly exceeds the nine-month window during which a plaintiff's mother would have taken DES, the Pigment Manufacturers note. Given that Collins attempted to strike a balance between assuring a DES plaintiff had a remedy and providing a realistic opportunity to each DES pill manufacturer to prove that it could not have caused the plaintiff's harm (by establishing its DES could not have reached the mother during her pregnancy), the Pigment Manufacturers contend that Collins should not be extended given that they have no reasonable ability to exculpate themselves. We recognize that the window during which the possible injury causing white lead carbonate was placed in a house that eventually harmed Thomas is drastically larger than a nine-month window for pregnancy. However, the window will not always be potentially as large as appears in this case. Even if it routinely will be, the Pigment Manufacturers' argument must be put into perspective: they are essentially arguing that their negligent conduct should be excused because they got away with it for too long. As Thomas says, the Pigment Manufacturers “are arguing that they should not be held liable under the risk contribution doctrine because of the magnitude of their wrongful conduct.”
* ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING: Second, the record is replete with evidence that shows the Pigment Manufacturers actually magnified the risk through their aggressive promotion of white lead carbonate, even despite the awareness of the toxicity of lead. In either case, whoever had “exclusive” control over the white lead carbonate is immaterial.
- Justice Louis B. Butler, Jr. concurred in the Majority opinion, but wrote separately. In this separate opinion, Justice Butler lables auto title companies as "predatory lenders," and notes that the interest rates the charge to consumers with low credit ratings are "ridiculous, unreasonable and unconscionable."
- Justice Louis B. Butler, Jr. authored the majority opinion, which, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser, concluded that Retail buyer of used automobile was entitled to award of "reasonable costs," in pursuing claim under statute prohibiting unsavory practices in the retail sale or lease of a motor vehicle, and not just “taxable costs” as specified in the rule actually governing the matter in civil actions, even though such costs would possibly exceed the total recovery under the statute. The dissent heavily criticized the Majority decision, noting that it ignored the plain-language of the statute in order to obtain a plaintiff-friendly result.
On Taxes
On Tax Increment Financing (TIF)
On Term Limits
On Tort Reform
* Justice Butler concurred in the Majority Opinion, written by Justice Shirley S. Abrahamson, but wrote a separate concurring opinion as well. The Majority held, in a medical malpractice action, that the recently-passed $350,000 cap, adjusted for inflation, on noneconomic damages in medical malpractice actions not involving wrongful death of the patient (1) was not rationally related to legislative objective of compensating victims fairly; (2) was not rationally related to legislative objective of lowering medical malpractice insurance premiums;(3) statute was not rationally related to legislative objectives of keeping Wisconsin Patients Compensation Fund's annual assessments to health care providers at low rate and enabling Fund, which provided excess liability coverage for health care providers, to operate on sound financial basis; (4) was not rationally related to legislative objective of lowering overall health care costs for consumers of health care; and (5) was not rationally related to legislative objective of ensuring quality health care by creating an environment in which health care providers were likely to move into, or less likely to move out of, Wisconsin.
* ON THE CONSTITUTIONALITY OF CAPS ON NON-ECONOMIC DAMAGES: "* * * I am convinced that the current cap on noneconomic medical malpractice damages is unconstitutional. The stated legislative objectives, when reviewed in accord with a rational basis test, provide insufficient justification for that cap under the equal protection clause and, further, the $350,000 cap is too low to satisfy the right to a jury trial as guaranteed in Article I, Section 5, when considered in conjunction with the right to a remedy in Article I, Section 9 of the Wisconsin Constitution."
* ON DEFERENCE TO THE LEGISLATURE: "In Wisconsin, the history behind the legislature's setting of caps for noneconomic damages in medical malpractice actions demonstrates arbitrariness, and leads to a conclusion that a rational basis justifying the present cap was, and is, lacking. When Wis. Stat. ch. 655 was first enacted in 1975, there was no cap on noneconomic damages, but a $500,000 conditional cap that could be triggered if the Wisconsin Patient Compensation Fund's cash-flow was in jeopardy. Then, in 1986, the legislature set the cap at $1,000,000. This $1,000,000 cap remained in effect until 1991, when a sunset provision became effective. There was no cap on noneconomic damages from 1991 until the legislature passed the current statutory cap of $350,000 in 1995. Thus, the caps changed from nothing, to $1,000,000, back to nothing, and finally to $350,000 over the course of 20 years."
*ON DEFERENCE TO THE LEGISLATURE: "The legislative history behind this current cap further reveals no rational basis justification for settling on the amount of $350,000. The bill involved, as originally drafted, set a cap on noneconomic damages at $250,000. However, a number of alternatives were suggested throughout the legislative process, ranging from $1,000,000, to nothing, to $250,000, to $350,000. The final act set the cap at $350,000, without providing any explanation for the jump from the original $250,000. It appears quite clear that the legislature settled on an amount for the noneconomic damage cap without a rational basis for doing so. It seems as if the $350,000 figure was plucked out of thin air. Such an arbitrary cap “is violative of the equal protection clause in the Wisconsin Constitution, since it unduly burdens medical malpractice claimants without a rational basis that justifies ...” its stated legislative objectives. ."
*ON CREATING NEW CONSTITUTIONAL RIGHTS: "I also conclude that this cap on noneconomic damages violates Article I, Section 5 of the Wisconsin Constitution when linked to Article I, Section 9 of the Wisconsin Constitution. Although the majority opinion does not fully address this issue, I conclude that these two provisions of the Wisconsin Constitution may be applied together to determine whether the noneconomic damages cap of $350,000 was set unreasonably low, thus making it unconstitutional on that basis as well."
*ON DEFERENCE TO THE LEGISLATURE: "In this case, the jury awarded Ferdon $700,000 in noneconomic damages. The circuit court, however, had no choice but to reduce these damages to $410,322-the equivalent of the $350,000 cap adjusted for inflation. Consequently, Ferdon lost a significant portion of the full damage award-more than 41 percent-as determined by the jury. The jury verdict for damages was reduced by $289,678 in light of the $350,000 cap. While I recognize that the legislature may place a statutory cap on noneconomic damages in medical malpractice actions, the cap cannot be set unreasonably low. If $1,000,000 was the appropriate figure for the cap in 1986, how can a $350,000 cap satisfy the constitutional requirements nine years later? “Such a low cap on noneconomic damages effectively denies plaintiffs the constitutional right to trial by jury under Article I, Section 5 of the Wisconsin Constitution]] and, in turn, to a remedy as guaranteed by Article I, Section 9 of the Wisconsin Constitution.”
*ON EQUAL PROTECTION UNDER THE LAW: I agree with the majority opinion that a statutory cap set too low may also violate the equal protection clause of the Wisconsin Constitution: “We have said that a statutory limit on tort recoveries may violate equal protection guarantees if the limitation is harsh and unreasonable, that is, if the limitation is too low when considered in relation to the damages sustained.”
*ON APPLYING OTHER STATE'S LAWS WHEN INTERPRETING THE WISCONSIN CONSTITUTION: Justice Butler relied upon decisions of the state Supreme Courts of Florida, Kansas, and Maine, finding that caps in their respective states violated their constitutions, to find that the particular ban at issue in this case violated the Wisconsin Constitution.
Endorsements
See Justice Butler's endorsement page for an extensive listing.
