Abrahamson is top recipient; justices remain involved in 98 percent of cases involving attorney donors
Posted on October 20, 2013
by WisconsinWatch - 1 Comment
Justice Patrick Crooks said he would like the Legislature to create an objective standard forcing recusal whenever a reasonable person might perceive a problem. “Wisconsin is out of step with other states and with the feds in regard to our standard,” he said. Photo Aug. 21, 2013. Jake Harper/Wisconsin Center for Investigative Journalism
By Jake Harper
Wisconsin Center for Investigative Journalism
In January 2009, Milwaukee area attorney Mark Thomsen donated $5,000 to a Wisconsin official’s political campaign. Thomsen soon sent an additional $500 just eight days before the official cast a key vote on an insurance issue that greatly affected Thomsen and his clients.
The public official’s vote was not in the state Assembly, or the state Senate. It was in the state’s highest court.
When the Wisconsin Supreme Court decision came down in Thomsen’s favor, the majority included the recipient of Thomsen’s money: Chief Justice Shirley Abrahamson.
Abrahamson, in fact, is the top recipient of support from attorneys whose cases reach the Supreme Court, pulling in $188,650 over the past 11 years, a Wisconsin Center for Investigative Journalism analysis shows.
Those attorneys contributed a total of $210,750 to current justices, either before or after their cases were heard, from July 2002 through June 2013. Fifty-six percent of these contributions came in before the court’s rulings.
And as happened after Thomsen’s donations, the analysis found, justices tend to rule in favor of clients whose attorneys contribute to the justices’ election campaigns.
In instances where a contribution came in before a case was decided, justices favored those attorneys’ clients 59 percent of the time.
The Center’s analysis showed that the more money Abrahamson received from donor attorneys, the more likely she was to vote in favor of their position. Fifty-eight percent of her rulings sided with contributors overall, while the figure was 71 percent for cases in which a lawyer donated $1,500 or more to her campaign.
Joe Heim, political science professor at the University of Wisconsin-La Crosse, said that the Center’s findings suggest a possible problem because “the taint of — or at least the appearance of — the influence of campaign contributions can damage the image of the courts as a neutral and unbiased branch of government.”
Adam Skaggs, senior counsel at the Brennan Center for Justice, a national group that supports public financing of judicial elections, said that “the prevalence of lawyer contributions definitely raises questions.”
“I think the vast majority of judges are not going to be influenced by contributions, but the public is still going to think that there could be influence,” Skaggs added.
Mike McCabe, executive director of the Wisconsin Democracy Campaign, a nonpartisan watchdog group, echoed that view.
“Any research that shows a correlation between donations and a justice’s decision on a case is only going to create greater concern among members of the public,” McCabe said. “I don’t know what could possibly be worse for the Supreme Court than the impression that justice has been bought.”
McCabe endorsed the Center’s approach of tallying contributions made before and after a case was heard. “A lot of donors give to say ’please,’ and a lot give to say ’thank you,’ ” he said. “Both are very corrosive.”
Justices have the option of recusing themselves from cases involving donor attorneys but have rarely stepped aside, remaining involved in nearly 98 percent of such cases, the Center found.
Abrahamson did not respond to interview requests. But when asked specifically about her status as the court’s leading recipient of donations from attorneys with cases before the court, and the larger issue of recusal, Abrahamson wrote in an email: “(A) judge makes a recusal decision in each case taking into consideration all the particular circumstances involved.”
Chief Justice Shirley Abrahamson, shown here at a March 13, 2013, oral argument, took in the vast majority of donations from attorneys whose cases came before the Wisconsin Supreme Court over the past 11 years. Jake Harper/Wisconsin Center for Investigative Journalism
‘There is no correlation’
The issue of campaign donations to state Supreme Court candidates has sparked bitter division on the court. The court’s conservative majority has rejected efforts to tighten the rules for when justices must withdraw from a case.
Abrahamson, who is usually associated with the court’s liberal bloc, has proposed that an outside body determine when justices should withdraw from a case involving a conflict of interest.
In Thomsen’s insurance case, he represented clients, including Heritage Farms Inc., that lost 572 acres of land to a fire caused by an out-of-control burn pile on a Marquette County campground. The high court held in 2009 that Thomsen’s clients were eligible for attorney fees and double damages.
When the issue came before the high court a second time, Abrahamson in 2012 again sided with the majority in favor of Thomsen’s clients.
Thomsen did not respond to requests for comment.
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Besides Abrahamson, justices tending to side with donor attorneys were Annette Ziegler, who took in $8,300 from attorneys with cases that came before the court; Patience Roggensack, who accepted $7,966; Ann Walsh Bradley, with $3,260; and David Prosser, who took in just $225.
Justice Michael Gableman, who accepted $2,350 from such attorneys, did not make that list, having sided with his donors’ clients in exactly half of four cases.
The remaining justice on the seven-member court, Patrick Crooks, was not included in the Center’s analysis. Crooks, who ran unopposed and took in very little money in his 2006 election, was not required to file electronic campaign finance records.
Abrahamson chose to remain involved in two cases argued by personal injury lawyer William Cannon, a colleague of Mark Thomsen who made four donations totaling $7,000 to Abrahamson’s 2009 campaign.
Two of Cannon’s cases, a product liability case and a medical malpractice suit, were decided by the court after he donated the money. Attorneys working with Cannon on the cases, including Thomsen, contributed an additional $21,150 to Abrahamson.
The court ruled against Cannon’s client in one of the cases, but Abrahamson sided with his clients in both suits. Abrahamson ruled in his clients’ favor in four previous cases, as well. (Cannon has a history of political giving, and gave $500 to 2013 Supreme Court candidate Ed Fallone, as well as $4,500 to Justice Louis Butler, who lost to Gableman in 2008.)
Cannon, asked about the contributions to Abrahamson and the rulings in his clients’ favor, responded indignantly. “You sound so stupid,” he said. “There is no correlation. That’s an absolute lie.”
Justice Roggensack, often seen as a member of the court’s conservative bloc, offered a more diplomatic critique of the Center’s findings.
“It makes the court sound bought and paid for, and I don’t think that’s why the contributions come in,” Roggensack said in an interview.
Like several people interviewed for this report, Roggensack said that contributions to justices have more to do with shared viewpoints, rather than attempts to change justices’ votes: “People support me based on their view that (my) philosophy is appropriate for the job that I hold.”
Roggensack sided with her attorney donors 57 percent of the time. She said she insulated herself from campaign activities and asked a staffer to inform her of larger contributions when they were relevant to a pending case.
“If I had a $10,000 contribution from a person whose case was pending before me, I wouldn’t sit on that case,” Roggensack said.
Butler, the former state Supreme Court justice, said that justices were not likely to be influenced by money. “You decide a case based on your view of the law, whatever that might be,” he said.
Wisconsin’s justices have faced concerns over their relationships with attorneys before.
In 2011, Gableman cast a deciding vote in two cases being argued by attorneys from Michael Best & Friedrich, a firm that had represented Gableman for free in a 2008 ethics case.
The same year, Prosser was criticized for planning to participate in a case involving the Troupis Law Office, which helped handle Prosser’s recount effort in the 2011 election. He eventually withdrew.
Recusal reform bills go nowhere
Rep. Gary Hebl, D-Sun Prairie, introduced bills this year that would disqualify a judge or justice whenever a party in a case, including an attorney, has given more than $1,000 in financial campaign support or whenever “a reasonable person would question whether the judge or justice could act in an impartial manner.”
Another bill would require judges or justices to state in writing the reasons for not disqualifying themselves if asked to do so.
The bills are similar to legislation Hebl introduced in the 2011-12 session, which did not receive a public hearing.
In June, the State Bar of Wisconsin proposed limiting justices to one 16-year term, expressly to address the perception that justices are “motivated by concerns for re-election.”
But critics, including Hebl and McCabe, contend that public financing for judicial campaigns would better address the issue. This appears to be a lost cause: The legislature dismantled Wisconsin’s 33-year-old public financing system following the 2011 election.
‘Out of step’ with other states
Direct contributions to judicial campaigns are a small portion of overall spending in Wisconsin’s Supreme Court elections, as they have been dwarfed in recent years by outside spending. Attorney donations are an even smaller subset. (The Center’s analysis looked only at attorneys listed in case information, not their spouses, fellow law firm members or clients involved in the case.)
But such contributions are central to the ongoing debate over judicial recusal in Wisconsin — and across the nation.
Of the $22.3 million spent on the five Supreme Court elections since 2005, about a third went directly to campaigns, according to estimates from the Wisconsin Democracy Campaign. The rest came into the process as independent expenditures or “issue ads” by outside groups, such as the Greater Wisconsin Committee and Wisconsin Manufacturers & Commerce.
The U.S. Supreme Court, in the 2009 case Caperton v. Massey, ruled that a West Virginia state supreme court justice should have bowed out, having received $3 million in campaign support from Massey Coal Co.’s CEO and president. Instead, the justice voted to overturn a $50 million verdict against the company.
“In all the circumstances of this case, due process requires recusal,” the U.S. high court held.
In 2008, the League of Women Voters of Wisconsin asked the state’s Supreme Court to adopt a standard requiring recusal in any case involving a contributor of $1,000 or more.
“(T)he receipt of a lawful campaign contribution shall not, by itself, warrant judicial recusal.”
— Wisconsin Supreme Court rules written by the Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association
Instead, the court’s conservative majority chose rules written by lobbying groups Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association stating that “the receipt of a lawful campaign contribution shall not, by itself, warrant judicial recusal.”
Justice Bradley, joined by Crooks and Abrahamson, issued a forceful dissent: “There can be no doubt that the actions of the majority have substantially undermined the public trust and confidence in the judiciary’s impartiality.”
“Wisconsin is out of step with other states and with the feds in regard to our standard,” Crooks said in an interview. “I didn’t think we should have outside groups and organizations writing provisions of our judicial code for us. … We needed to have input from other persons that would be affected by the provisions we ultimately adopted.”
Part of the trouble, Crooks has written, stems from differences between state law and the Wisconsin Code of Judicial Conduct. The statute calls for recusal when “a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.”
The court has interpreted that as meaning it is up to the individual justice to make this call, while the judicial code relies on the perceptions of “reasonable, well-informed persons.”
Crooks said he would like the Legislature to create an objective standard forcing recusal whenever a reasonable person might perceive a problem.
Appearance of impropriety
Roggensack opposes changing the state’s standards for recusal, warning that adopting a mandatory disqualification rule could have an unintended consequence. “If a thousand dollars was the limit, you could give that amount to all the justices you don’t want on the case,” she said.
Jay Heck, executive director of Common Cause Wisconsin, found that scenario implausible. “Theoretically, an alligator could crawl out of my ear. It just doesn’t happen in the real world,” said Heck, whose non-partisan group has long pushed for public financing of judicial campaigns.
Heck supports the thousand-dollar limit, not because a contribution “necessarily influences the justice, but it’s the public perception,” he said.
Polling suggests that the public is indeed concerned about the effect of campaign contributions in the judiciary.
A survey performed in 2008 for Justice at Stake, a national coalition that advocates for fair and impartial courts, found that just 5 percent of Wisconsin residents believed campaign contributions had no influence on judges. And a 2009 USA TODAY/Gallup Poll found that 90 percent of those surveyed believed judges should withdraw from cases involving campaign donors.
Apart from its recusal standard, the judicial code also requires judges and justices to pass the “test for appearance of impropriety” to avoid creating “in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”
When Crooks was asked if there should be more donation-related recusals given that standard and the polling data, he replied: “Probably.”
Jake Harper is a Madison-based freelance journalist. He may be reached at email@example.com
This project was supported by The Joyce Foundation. The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication.
All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.