Fair Courts E-lert: Wisconsin’s Spring Supreme Court Election Expected to be Contentious

December 12, 2012

Wisconsin’s Spring Supreme Court Election Expected to be Contentious
Wisconsin’s spring Supreme Court election has already started to make headlines as it is expected to be a contentious year. According to WUWM, Milwaukee’s public radio station, “Wisconsin could be in for another hotly contested Supreme Court race. At least three candidates have expressed interest in challenging incumbent Pat Roggensack for a ten year term on the court.” The article reports: “Wisconsin Supreme Court races are officially non partisan, yet the leanings of the justices are well known. The high court currently tilts conservative, with justices often voting four to three on cases. [Mike McCabe of Wisconsin Democracy Campaign] says, because of that one seat difference, the spring election will probably draw special interest groups, even from out of state, interested in influencing legislation nationwide.” The Beloit Daily News featured the headline “GET SET FOR A BRAWL” and included a quote from candidate Vince Megna saying he doesn’t see Roggensack as his opponent in the race, but rather “David Koch and the other out-of-state big money forces that will flood Wisconsin.” Megna is also quoted in the Milwaukee Journal-Sentinel as saying, “We must stop the fiction…Voters deserve the truth. They have the right to know who they are voting for. They have the right to see a letter designation behind the candidate's name. Not because nonpartisanship is wrong or evil, but because calling a seat on the Supreme Court ‘nonpartisan’ is a flagrant lie.”

Sources: Marti Mikkelson, State Supreme Court Race Could Get Nasty, WUMW Milwaukee, December 4, 2012; Get Set For A Brawl, Associated Press via Beloit Daily News, December 3, 2012; Patrick Marley, Supreme Court Candidate Declares Himself a Democrat, Opponent of Voter ID, Milwaukee Journal-Sentinel, December 7, 2012.

Minnesota: Public Debate on Merit Selection and Retention
Over the Thanksgiving Holiday, a retired judge published an op-ed calling into question the benefits of electing judges, especially in Minnesota where the elections are often uncontested. According to the judge, Dennis Challeen, “Most Minnesota judges are appointed by the governor, and thereafter run for election and serve 6-year terms. Judicial elections are ‘nonpartisan’ and no party affiliation will be listed on the ballot.” The op-ed advocates for a shift to simple retention elections with either a “yes” or “no” option. Jeff Thomson, chairman of the Minnesota District Judges Association (MDJA) Judicial Elections Committee, responded this week in his own op-ed saying, “The MDJA does not oppose a system of Retention Elections (the Missouri System), but we would only support such a system if it guaranteed a public, credible and securely funded judicial performance evaluation system; and, timely notice to incumbent judges that their retention was being challenged.” He adds, “Any claim that retention elections eliminate the influence of politics and campaign cash must be called into question by the results of Iowa’s retention elections in 2010. In that election, a conservative group defeated three Iowa Supreme Court Justices in order to send a message to the judiciary. Do we want our judges to decide cases on the merits or out of fear for their jobs?” The op-ed concludes, “The Minnesota System has served the people well, so far. We need to be assured that proposed changes are actual improvements.”

Dennis Challeen, Changing How Judges Are (S)elected, Winona Daily News, November 21, 2012; Jeff Thompson, Minnesota’s System Of Selecting Judges, Winona Daily News, December 2, 2012.


Budget Crisis: Possible Effect on Courts
With the potential for a budget crisis at the end of the year if an agreement cannot be reached in the senate, courts are facing large cuts in funding and other detrimental repercussions from the reductions. According to the Washington Post, “The federal courts, for example, would close some district courts one day a week, impose furloughs of up to four weeks and reduce the hours of security guards. The system would face a $555 million loss next year under an 8.2 percent cut to domestic agencies.” The Federal Times featured an article specifically on the impact to the federal court system that states, “Severe automatic budget cuts next month, if allowed by Congress to occur, would force federal courts to lay off up to 2,000 employees or furlough 20,000 employees for 16 days, according to the top executive at the agency that runs federal courts.” The article adds: “Although each individual court system would be responsible for deciding what furloughs or court closures are needed, the conference’s executive committee has developed a coordinated strategy to allow for some consistency and spread ‘the required sacrifices equitably across the judiciary family,’ [David] Sentelle, said. To minimize the impact on employees, the plan calls for significant reductions in spending on training and IT projects; travel limits; and freezes of promotions, step increase and cash awards, he added.”

Sources: Lisa Rein, Agencies Set Up Plans To Manage Cuts If Congress, Obama Fail To Reach Deficit Deal, Washington Post, December 7, 2012; Sean Reilly, Sequestration Will Mean Thousands Of Furloughs, Possibly Layoffs, At Federal Courts, Federal Times, December 7, 2012.

Lawsuit Over Federal Judge Salaries
Seven federal district and circuit court of appeals judges filed a class action suit hoping to recover increases in pay that were rescinded by the House of Representatives. According to a blog called the Progressive Pulse, “The judges rely on a decision from a full panel of the Federal Circuit Court of Appeals in October, Beer v. United States, in which six federal judges had sued individually to recover those raises. In Beer, the court held that federal judges were entitled to damages in the amount of pay raises they should have received, under the Ethics Reform Act of 1989, since 2003.” The case states, “When Congress promised protection against diminishment in real pay in a definite manner and prohibited judges from earning outside income and honoraria to supplement their compensation, that Act triggered the expectation-related protections of the Compensation Clause for all sitting judges. A later Congress could not renege on that commitment without diminishing judicial compensation.”

Sources: Sharon McCloskey, Now Appearing As Class Action Plaintiffs: Federal Judges, Progressive Pulse, December 7, 2012; See the Complaint here.


Judicial Nominations and Confirmations: Update
There has been some movement with judicial nominees in this lame duck session, as four nominees have been confirmed and there is hope that more confirmations could be coming. According to the Blog of Legal Times, so far only district court nominees have been confirmed and “[t]he bigger question among nomination watchers now is when will the Senate consider nominees to appellate courts, and if it will be during the lame duck session.” The post further notes, “Also Thursday, the Senate Judiciary Committee unanimously approved four district court nominees, making them ready for confirmation votes before the full Senate.”

(See previous elert coverage here)

Source: Todd Ruger, Senate Moving on Stalled Judicial Nominees, Blog of Legal Times, December 6, 2012.