What s On The Ballot? The Supreme Court A Guide to the Candidates and a Pending Constitutional Amendment

Transcription

1 Vol. 83, Number 2 February 2015 What s On The Ballot? The Supreme Court A Guide to the Candidates and a Pending Constitutional Amendment Voters will make two important decisions this spring affecting the Wisconsin Supreme Court. First, they will elect a supreme court justice to serve for the next ten years; Justice Ann Walsh Bradley is being challenged by Judge James P. Daley. Second, they will vote on a constitutional amendment that would change how the court s chief justice is chosen. This report provides backgrounds on the candidates, in their own words, as well as arguments for and against the constitutional amendment. This April, voters will make two decisions affecting the Wisconsin Supreme Court. They will elect a supreme court justice to serve for the next ten years; either Justice Ann W. Bradley or Judge James P. Daley (see page 5). They will also vote on a state constitutional amendment that would change the way the court s chief justice is chosen (see page 7). Surprisingly, Wisconsin has not always had a supreme court. When Wisconsin became the nation s 30th state in 1848, the constitutional convention simply preserved the existing territorial court system. The state s circuit court judges met in Madison each year to hear appeals of their own decisions. It wasn t until 1852 that the state legislature voted to create a separate supreme court, and in 1853, Wisconsin elected its first justices. SUPREME COURT The supreme court is the state s highest court; that means for state issues, its rulings are final. Almost all of the court s cases are appeals from lower courts (typically, courts of appeals), but it can hear original actions as well. In addition to ruling on cases, the Wisconsin Supreme Court administers the state judicial system. The court appoints the director of state courts and directs the Board of Bar Examiners, which regulates lawyers in the state. Composition and Selection Composition. The court has seven justices, each elected for a 10-year term. The table on page 2 lists the court s current members, the year their tenures began, and when their current terms end. The longest-serving justice serves as chief justice, though that could soon change (see page 7). The current chief, Shirley Abrahamson, recently passed Orasmus Cole Also in this issue: Supreme Court Candidates (page 5) Spring election: Constitutional Amendment (page 7) Cigarette Smuggling An Evolving Legislature Manufacturing in Wisconsin wis tax A service of the Wisconsin Taxpayers Alliance

2 Table 1: Wisconsin s Supreme Court Justices Justice Tenure Began Term Ends Residence* Shirley S. Abrahamson Madison Ann Walsh Bradley Wausau N. Patrick Crooks Green Bay David T. Prosser Appleton Patience D. Roggensack Madison Annette Kingsland Ziegler West Bend Michael J. Gableman Webster *At time of first election or appointment ( ) as the longest serving supreme court justice. Selection. Justices are elected in nonpartisan spring elections held on the first Tuesday in April. Terms begin in August following the election. If more than two candidates run, a primary election is held on the third Tuesday in February. Elections are staggered so that no two justices face reelection in the same year. If there is a midterm opening, the governor appoints a replacement, who serves until the next available spring election. For example, Governor James Doyle (D) appointed Louis Butler in Because seats for other justices were up for reelection in 2005, 2006, and 2007, Butler did not stand for election until 2008, when he was defeated. Initial appointment to the bench, rather than election, is rather common. Of 75 justices who have served since 1853, 45 (60%) were first appointed. However, only two current justices were initially appointed: Shirley S. Abrahamson by Governor Patrick J. Lucey (D), and David T. Prosser, Jr. by Governor Tommy Thompson (R). Although supreme court justices have always been chosen by popular vote in Wisconsin, judicial elections were not always nonpartisan. Political parties nominated the first three justices in 1852, although the 1848 constitution prohibited judicial elections from being held within 30 days of any state general election. It wasn t until 1913 that nonpartisan election was written into law, but the first nonpartisan election occurred 35 years before in Size and Tenure Wisconsin s first supreme court had only three justices. A constitutional amendment adopted in 1877 increased that number to five, and another in 1903 raised it to the current seven. Term length has also changed over the years. Originally, justices served six-year terms. The 1877 amendment increased that to 10 years, the current term length. Terms for appointed justices have also increased. Originally, an appointed justice would serve until the next available spring election, and then, if elected, would serve for the remainder of the retired justice s term. A 1953 amendment changed that so now appointed justices stand for a full 10-year term Session Review The Wisconsin Supreme Court has discretion over which cases it hears. Four or more justices must approve a petition for original jurisdiction in a case, and three or more justices are required to grant appellate jurisdiction to review a decision of a lower court. Cases. By at least one metric, the session, which ran from September 2013 through August 2014, was unusually busy. The court resolved 122 cases, up from 98 in The court THE WISCONSIN TAXPAYER February 2015 Vol. 83 Number 2 Publication Number USPS Periodical postage paid at Madison, Wisconsin Subscription Price: $17.97 per year Published each month, except July, by the Wisconsin Taxpayers Alliance, 401 North Lawn Avenue, Madison, Wisconsin Postmaster: Send address changes to The Wisconsin Taxpayer, 401 North Lawn Avenue, Madison, Wisconsin Phone: Fax: wistax@wistax.org Website: Officers and Board of Directors: T. L. Spero, Chair, Milwaukee; K. D. Nunley, Vice-Chair, Milwaukee; J. D. McGaffey, Secretary-Treasurer, Milwaukee. J. L. Adams, Beloit; D. L. Hughes, Milwaukee; J. J. Kita, Milwaukee; Carol Ward Knox, Fort Atkinson; R. A. Meeusen, Milwaukee; H. C. Newell, Mosinee; C. D. Fortner, Milwaukee; J. R. Riordan, Madison; C. A. Rooks, Milwaukee; D. R. Schuh, Stevens Point; M. D. Simmer, Green Bay. Staff: Todd A. Berry, President; Dale Knapp, Research Director; Melissa Minkoff, Executive Assistant; Stephanie Rubin, Research Analyst; Gina Staskal, Business Manager. Reproduction: Media is encouraged to quote contents, with credit to WISTAX. Electronic reproduction or forwarding is prohibited unless prior permission is granted. Send requests to wistax@wistax.org. Page 2 The Wisconsin Taxpayer

3 averaged 96 cases per year between and Figure 1 shows that, compared to the prior session, the court resolved more attorney discipline cases (52 vs. 42), civil cases (39 vs. 31), and criminal cases (30 vs. 25). When the court resolves a case, a justice is usually charged with authoring a majority opinion, which sets forth the decision of the court and often explains the rationale behind it. These are assigned at random. Justices that disagree with court decisions may author dissenting opinions at will. Authorship of majority opinions (61 total) was distributed fairly evenly among the justices, with Justice Abrahamson writing the fewest (7) and Justice Roggensack (11) the most. However, the majority of dissenting opinions (52 total) were written by either Justice Abrahamson (26) or Justice Bradley (11). Petitions for Review. Every term, the supreme court receives petitions to review previous rulings of the court of appeals. The supreme court does not have to grant these and, as a result, reviews only a small share of such cases each term. Additionally, many petitions filed in a given term are not considered until the next term. During , 792 petitions for review were filed: 381 civil cases and 411 criminal cases. Over the course of the term, however, the court disposed of 860 petitions, but granted only 65. By the end of the term, 295 petitions were still pending. Other Petitions and Requests. In addition to reviewing past rulings, the supreme court can also exercise authority in cases currently being heard or yet to be heard in a lower court. These are known as petitions for bypass and requests for certification, respectively. The court received 24 petitions for bypass, requesting it take jurisdiction of a proceeding in the court of appeals. In , the supreme court disposed of 16 but granted none of these petitions. By the end of the term, another 16 petitions for bypass were pending. The supreme court received three requests for certification in that asked it to exercise its appellate jurisdiction before the court of appeals heard the matter. Including four from the previous term, the court disposed of seven and granted five of these requests. Figure 1: Opinions Issued by the Wisconsin Supreme Court Through ISSUES The rules and operating methods of state supreme courts are not uniform across the country. In some cases, the traditions of the Wisconsin Supreme Court stray from national norms, leading some to wonder whether or not judicial reform is necessary. Selection Although supreme court justices are elected in Wisconsin, they are chosen by a variety of methods in other states. Which is best is a matter for debate. By State. Most states select justices in one of three ways: gubernatorial appointment, popular election, or legislative election (see Table 2 on page 4). Gubernatorial appointment is the most popular selection method, currently used in 26 states. In 22 of these states, the governor makes his or her selection from the recommendations of a nonpartisan commission which recruits, investigates, and evaluates applicants for judgeships. In 13 states, the governor s selection requires confirmation by the legislature, a nonpartisan commission, or the governor s council. In 22 states, supreme court justices are chosen by popular vote. Including Wisconsin, 15 states hold nonpartisan elections, although Ohio and Michigan have partisan primaries. Another seven hold partisan elections. Finally, in South Carolina and Virginia, the legislature elects justices to the supreme court. In South Vol. 83, Number 2 February 2015 Page 3

4 Carolina, candidates are nominated by a commission; in Virginia, by the governor. Independence vs. Accountability. Although popular elections are usually the most democratic approach, many say merit-based selection methods, such as gubernatorial appointment from independent recommendations, better preserve judicial independence by eliminating the need for candidates to raise funds, advertise, and make campaign promises. By allowing judges to rule without fear of losing campaign donations or votes, supporters of merit selection argue it minimizes politicization of court rulings. However, others are more concerned with judicial accountability than independence. By leaving the decision to voters, some contend, a supreme court is accountable to the citizens of the state. Retirement Mandatory retirement ages for justices also vary. Currently, justices in Wisconsin are not required to retire at any particular age, though the state has had an age limitation in the past. A constitutional amendment adopted in 1955 required justices to retire at the end of the month in which they reached 70 years of age. In 1968, the constitution was again amended, allowing justices to serve until July 31 following their 70th birthdays. A 1977 constitutional amendment ended this requirement and gave the legislature the power to enforce a mandatory retirement age of no less than 70 years. Since then, the legislature has not enforced such a requirement. However, some state legislators have recently voiced support for a mandatory judicial retirement age of 75. State supreme courts (31 of 50) generally have age limits (see Table 2). Most commonly, states require justices to retire when they reach 70 years of age (22 states). The age limit is higher in nine states; 72 in Colorado, Iowa, North Carolina, and South Carolina; 74 in Texas; and 75 in Indiana, Oregon, Utah, and Washington. Like Wisconsin, the remaining 19 states have no age limit. Concern over the age of justices is compounded by term limits, or the lack thereof. In 18 of the 19 states without mandatory retirement ages, justices serve for set terms, at the end of which they must be reappointed or reelected to remain on the bench. Only in Rhode Island does the supreme court have neither a retirement age nor a term limit. Upon appointment, justices there serve for life, as is the case with the U.S. Supreme Court. DATA SOURCES: American Judicature Society; The Council of State Governments; Willamette Law Review 1445 (2003); Wisconsin Appellate Law; Wisconsin Legal History Committee Table 2: Supreme Courts By State Age Limit, Term Length, Selection Method*, By State *NE=nonpartisan election, PE=partisan election, A=appointment, LE=legislative election Page 4 The Wisconsin Taxpayer

5 Supreme Court Candidates In an effort to inform voters, the Wisconsin Taxpayers Alliance asked supreme court candidates to share with voters their professional backgrounds and to author a letter of application explaining why voters ought to elect them. Below are their verbatim responses. JUSTICE ANN WALSH BRADLEY Candidate Background Professional Experience. For the past 20 years, I have had the honor to stand up for the people of Wisconsin on the Supreme Court. I was first elected to the Court in 1995 and was re-elected in Prior my election to the Supreme Court, I served as a Circuit Court Judge for ten years in Marathon County, as an attorney in private practice and as a high school teacher. Awards and Distinctions. Recipient of the American Judicature Society s Harley Award, a national honor that is reserved for judges whose outstanding efforts and longterm contributions have resulted in substantial improvements to the justice system; Named one of Wisconsin s outstanding Women in the Law by the Wisconsin Law Journal; Founded the chaired Hmong Task Force which received the National Foundation for Improvement of Justice Award; recipient of Athena Award and Business and Professional Woman of the Year Award. Professional Memberships. Vice-Chair of the Board of Directors of the International Judicial Academy; Wisconsin co-chair of icivics, retired Justice Sandra Day O Connor s nonpartisan effort to improve understanding of the role of the Courts; North American delegate to the Board of Directors of the International Women Judges Association; elected member of the American Law Institute; member, State Bar Bench-Bar Committee; Board of Visitors of the UW Law School; Judicial Conference Executive Committee; Federal-State Judicial Council. Extensive past service on boards and committees. Statement Like you, I care deeply about this state and the more than 5.7 million people that call Wisconsin home. My Wisconsin roots are strong and my extended family large. Many of the values I hold dear today are the same values I learned growing up in my hometown of Richland Center values of family, community, hard work and the JUDGE JAMES P. DALEY Candidate Background Professional Experience. Wisconsin Circuit Court Judge, Rock County Branch 1; Chief Judge Wisconsin 5th Judicial District; Rock County District Attorney ( ); United States Marine Corps ( ); Brigadier General; Army National Guard (honorably discharged completing 36 years of service); Private Practice Attorney ( ); J.D. Marquette University; B.A. Carroll College (Waukesha, Wisconsin). Awards and Distinctions. Chief Judge, Wisconsin s 5th Judicial District; Convicted over 30,000 criminals over the course of 26 years on bench; Established OWI Court (2013); Established Wisconsin s first Veteran s Regional Diversion Court in September (2009); 2009 Recipient of the Eisenberg Award from the Wisconsin State Public Defender Board; Established Drug Court (2006); Established Pro-Arrest Policy for suspected domestic abusers as Rock County District Attorney (1987); 2011 Induction into the Wisconsin Army National Guard Hall of Honor; Awarded the Purple Heart; Awarded the Bronze Star Medal with Combat V; Meritorious Mast. Professional Memberships. Member of the Rock County Bar Association; Member of the Voluntary Association of Trial Judges; Member of the American Legion; Member of the Veterans of Foreign Wars; Member of the Military Order of the Purple Heart; Member of the Disabled American Veterans; Member of the Marine Corps League; Member of the Marine Corps Association; Member of the Military Officers Association of America; Member of the Retired Reserve Officers Association; Member of the National Guard Association of the United States. Statement Dear Citizen, I am Rock County Circuit Court Judge Jim Daley and I am running to support the rule of law and a Justice s Constitutional integrity to the Wisconsin State Supreme Court. Vol. 83, Number 2 February 2015 Page 5

6 Bradley cont. importance of service to others. Both of my parents were born and raised in Richland County, as were my grandparents. My great-grandparents homesteaded in Southwest Wisconsin. Our family home in Richland Center has been in the family for over 90 years. I have carried those values with me when I taught high school in La Crosse, when I practiced law in Wausau and when I served for ten years as a Marathon County circuit court judge. My husband, Mark, and I live in Wausau, raised our four children here, and together passed those same values on to them. For the past 20 years, I have had the honor of serving on the Wisconsin Supreme Court. There, I ve worked to protect the people of Wisconsin, uphold their individual rights, make government open and accessible, and hold every branch of government accountable under the constitution. I am committed to maintaining a supreme court that is fair, neutral, impartial and non-partisan a court that is fiercely independent, not beholden to any political party, association or special interest group. That is critically important, not only in terms of how our courts function but also in terms of ensuring Wisconsin residents have confidence in our courts and confidence that they will receive a fair shake from those courts. The importance of a nonpartisan and impartial judiciary is a message I will continue to focus on during this campaign. I am honored to have earned the support of a growing list of bi-partisan supporters, including over 100 law enforcement professionals from all corners of the state. In addition, I am dedicated to promoting an understanding of the importance of the role of courts and the rule of law, both at home and abroad. Traveling to the four corners of this state and places in between, I have championed the teaching of civics education, serving as state co-chair of former U. S. Supreme Court Justice Sandra Day O Connor s civic education program. Traveling several continents, I have taught judges and lawyers in emerging and struggling nations about the importance of the rule of law as they endeavor to write new constitutions and to develop new procedures in their system of justice. That s who I am, and what I believe in. And, that s why I am asking for your support and your vote as I run for re-election to the Wisconsin Supreme Court. Daley cont. My judicial philosophy is quite simple. As a Circuit Court Judge, I have a record of applying the rule of law to the facts presented to me in all cases. A justice on the Wisconsin Supreme Court should be governed by the rule of law, and should not impose a personal or political agenda on which cases come before the Court and how they are decided. A Supreme Court Justice should never use their position to legislate from the bench. Independence as a judge is vital so long as the judge is properly constrained by their defined role as judges, not policy makers. My compass in all matters is the Constitution. The Supreme Court is tasked with first applying, then fairly interpreting the laws of our state and nation in a consistent and reliable manner without bias, prejudice, or partisan considerations. It is our job as judges to ensure that the people of Wisconsin, and its leaders, understand precisely what the law requires of them, as well as what the law restricts them from doing. When citizens seek office, they often recite a list of promises of all the great things they are going to do in their new position. Activism is not my role and should not be the role of anyone on the bench. My approach is different, and, I want to assure you of a few things I will NOT do if elected. I will not use my seat on the court to overturn the will of the people in favor of my own personal beliefs. Instead, I will hold fast to the rule of law and demand the same of our elected leaders. I will not use this position as a way to punish businesses with activist regulations, or Wisconsinites by socially engineering some type of liberal utopia. And I will not make more difficult the jobs of our dedicated law enforcement officers who go to work every day and risk their lives to protect our families. With a growing number of sheriffs and district attorneys from around Wisconsin endorsing my candidacy, I am law enforcement s choice to sit on the state Supreme Court. My campaign is about doing the right thing, because doing the right thing transcends partisan politics. Wisconsin is ready for a justice who is truly independent and adheres to the Constitution and legal integrity on the bench I m asking for your vote on April 7, Thank you. Sincerely, Judge James Daley Page 6 The Wisconsin Taxpayer

7 Spring Election: Constitutional Amendment In addition to supreme court candidates, a constitutional amendment is on the ballot this spring. As required by law, the amendment has been approved in identical form by both the senate and the legislature in two consecutive terms. If ratified by voters on April 7, the amendment will change the way that the chief justice of the supreme court is chosen. SENIORITY NO LONGER RULES? Currently, the senior-most justice serves as chief justice. The proposed amendment would require that the chief justice be chosen by a majority of justices currently serving on the court. It also introduces a term length of two years for the chief justice. Currently, the chief serves for the duration of his or her service on the court. The Question The proposed amendment will appear on the ballot in the form of a question: Question 1: Election of chief justice. Shall section 4 (2) of article VII of the constitution be amended to direct that a chief justice of the supreme court shall be elected for a two-year term by a majority of the justices then serving on the court? They point out that peer vote is the nation s most common method of choosing a chief justice, with 22 (44%) of the 50 states using it (see Figure 1). In another 13 (26%) states, the governor is charged with nominating or appointing the chief. A third, less popular method used in seven (14%) states leaves it to voters to choose. Wisconsin is one of six (12%) states, along with Kansas, Louisiana, Mississippi, Nevada, and Pennsylvania, where the chief justice is determined by seniority. Cons. Those on the other side of the debate contend that the amendment is politically motivated. If adopted, the amendment would likely remove Shirley Abrahamson, who has served as chief since 1996, from the position. They also note that the proposed two-year term limit is relatively short compared to other states. Chief justices in only seven (14%) states have terms lasting two years or less. In a majority of states (28), chief justices have terms of six years or longer, including 11 where they serve for the duration of their service on the court. Chief Justice Responsibilities. According to the state constitution, the chief justice is the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court. As such, the chief justice has no more ruling power than other justices on the court, but can schedule oral arguments and conferences, and, with unanimous approval from the court, make changes to the judicial calendar. History. Originally, Wisconsin s chief justice was chosen by voters. That system remained in place until an 1889 constitutional amendment provided that the longest-serving justice would serve as chief. Since then, the senior justice has become chief, although a 1977 constitutional amendment allowed the senior justice to decline irrevocably the position. Figure 1: Chief Justice Selection Method Method by State, Number of States Pro and Cons Pros. Many in support of the amendment insist that peer vote would increase collegiality among justices, by allowing them to choose their own head. DATA SOURCES: American Judicature Society; Wisconsin Government Accountability Board; Wisconsin Legal History Committee Vol. 83, Number 2 February 2015 Page 7

8 wis tax Wisconsin Taxpayers Alliance 401 North Lawn Avenue Madison, WI PERIODICALS USPS WISTAX NOTES Cigarette Smuggling. A 2013 study found that 31.2% of cigarettes consumed in Wisconsin were smuggled in from out of state. Wisconsin ranked 7th of the 50 states that year, up 11 spots from 18th in 2006, the last time the study was conducted. Wisconsin s cigarette tax rate was increased in 2008 from $0.77 per pack to $1.77, and again in 2009 to its current $2.52. Of surrounding states, Wisconsin has both the highest cigarette tax and inbound smuggling rate. However, after hikes in state and county excise tax rates, Illinois inbound smuggling rate jumped from 1.1% in 2006 to 20.9% in New York (58.0 percent), Arizona (49.3 percent), Washington (46.4 percent), New Mexico (46.1 percent), and Rhode Island (32.0 percent) have the highest inbound smuggling rates. The highest outbound smuggling rates are in New Hampshire (28.6 percent), Idaho (24.2 percent), Virginia (22.6 percent), Delaware (22.6 percent), and Wyoming (21.0 percent). An Evolving Legislature. The Wisconsin state senate is the oldest since at least The average age of senators in the new session is 57, with a range from 34 to 87. Only three senators are under 40, while 15 are 60 or over. The average age of state representatives is 48 years old, with a range of 24 to 76. The election of Senator Mary Lazich as Senate President in 2015 marks the first time a woman has served as presiding officer of either house. Currently, a total of 33 women are serving in the Wisconsin legislature: 11 in the senate and 22 in the assembly. The 11 female senators is the most in history, matching previous peaks in 1999 and The largest number of female representatives was 33 in Through history, 132 women have held seats in the state legislature. The number peaked at 37 in 1989 and (Legislative Reference Bureau) Manufacturing in Wisconsin. Recently released Census data show that Wisconsin had the 9th most manufacturing establishments of the 50 states in 2012 (see below). Of the top ten, Wisconsin s population is smallest. Figure 1: Top Ten Manufacturing States Total 2012 Establishments, Thousands In FOCUS... recently in our biweekly newsletter State of the State? Rhetorical and Statistical (#2-15) Update: State-local government spending in Wisconsin (#3-15) The state budget (I): Getting to now (#4-15) The Wisconsin Taxpayers Alliance, founded in 1932, is the state s oldest and most respected private government-research organization. Through its publications, civic lectures, and school talks, WISTAX aims to improve Wisconsin government through citizen education. Nonprofit, nonpartisan, and independently funded, WISTAX is not affiliated with any group national, state, or local and receives no government support. In accordance with IRS regulations, WISTAX financial statements are available on request.