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From Scoop # 31 March 13, 2006
The four decisions are: Ferndon vs. Wisconsin Patient Compensation Fund, which eliminated the caps on non-economic damages in medical malpractice cases; Thomas vs. Mallet, which eliminated the need for people suing the paint industry to prove the accused company made the product that they claimed harmed them; State vs. Matthew Knapp, which expanded the Miranda warning to exclude physical evidence despite the US Supreme Court’s refusal to do so; and State vs. Tyrone Dubose, which banned the use of “show-up” identifications of crime suspects, regardless of their reliability. The effects of these decisions especially when combined is truly frightening. The Knapp & Dubose cases will erode the enforcement of the law and prosecution of criminals. The Ferndon & Thomas cases are already harming Wisconsin’s economy. Every business executive in the country saw the Wall Street Journal ridicule our new anti-business climate as “Alabama North.” Wisconsin has gone from a leader in tort reform to “Tort Hell Tundra” according to Wisconsin FreedomWorks. Before the cases, Wisconsin was one of several states the American Medical Association considered safe from “med-mal” crisis and the American Insurance Association calls “one of the country’s few stable medical malpractice insurance markets.” After the cases, Wisconsin threatens to become a textbook case of enriching trial lawyers at the expense of the economy. Even reliably liberal newspapers have criticized the decisions. The Milwaukee Journal Sentinel supported the cap on non-economic damages in medical malpractice cases and Madison's Wisconsin State Journal opposes the new “guilty until proven innocent” standard for lead paint makers established by the Court. What Changed? So how did this situation arise? There are two main causes. First, Governor Doyle appointed the very liberal and very activist Louis B. Butler Jr. to the Court to replace conservative Diane Sykes. She was promoted to the US 7th Circuit Court of Appeals by President Bush, leaving the Wisconsin Supreme Court in June of 2004. Justice Butler will always vote in the liberal bloc. The second reason is Justice Patrick N. Crooks. Although he usually (and previously) voted conservative, in the four cases announced on July 14th 2005, Crooks voted with the three liberal activist judges, turning the activist bloc into the new majority.
Crooks lost his
first campaign for Supreme Court in 1995, but succeeded in 1996 by
running as a more centrist candidate. After receiving Governor
Tommy Thompson’s endorsement, both parties supported his candidacy,
and he won easily. A few days after the four court cases we have
analyzed were announced, Crooks announced he would run for another
ten-year term, despite widespread rumors and speculation that he
would retire at the end of his term. Some critics suspect Crooks’ change is a further “evolution” of his leftward move that began in his 1996 race. Liberals applaud his change as “growth and development” while in office. His harshest critics portray it as a cynical tactic to curry favor with liberals and Democrats (especially the trial lawyer lobby) to prevent their running and funding a hard-core, real liberal activist candidate against him. But the real reason for his change is known only to Patrick Crooks. Even thought highly upset at his defection, conservatives were unable to find a candidate willing to run against him. A few names were speculated on in the media, but those names quickly made it clear that they would not run against him. None wished to face the name recognition and money raising ability of an incumbent judge. Results of the Four Decisions The terrible results of these four decisions were discussed in detail in previous articles. The Ferndon decisions removing the non-economic damages cap is already making doctors’ and hospitals’ liability insurance more expensive, and doctor recruitment to Wisconsin hospitals more difficult. It is only a matter of time before increased insurance costs will drive up the price of health care to patients and their employers. The fiasco of the Thomas decision is that its “guilty until proven innocent” standard can, and is expanding into other industries beside paint, as a Chicago law firm has filed suit in Milwaukee for asbestos damage claims, while admitting that the asbestos wasn’t manufactured by any of the named defendants. The two cases together have reversed twenty years of legal, tax, and regulatory reform aimed at improving Wisconsin’s business climate. Don’t expect any businesses to re-locate to our fair state. And the Knapp & Dubose cases made Wisconsin one the furthest left-wing state supreme courts in the country, up with Massachusetts and New York (with the added real world benefit of making prosecution of criminals much harder.) Judicial Activism The key issue underlining all these Wisconsin Supreme Court decisions is judicial activism. Judicial activism is basically the idea that judges can, and should, re-interpret the constitution to bring it in line with modern sensibilities, new social attitudes, and general changes in society since the constitution was written. The constitution should “grow” and “evolve” as society changes. The “original intent,” or meaning of the constitution when and as written, is not as important as what modern society currently wants the constitution to mean. The problem with this judging philosophy is no one knows what “modern society” wants - deciding how the constitution is to “evolve” is always up to the individual judge’s opinion, bias, interpretation and agenda. So as a result, what the constitution actually says in meaningless if every judge can re-interpret what the constitution means. A constitution that changes meaning so easily in reality means nothing. The entire basis of our Western society is the written law. The law is written down so everyone knows what it is. Everyone knows what is legal and what is illegal. Everyone knows what they may and may not do, and what the punishment is for breaking the law. People can’t be punished for breaking laws they didn’t know existed, or laws that didn’t exist when they “broke” them. But judicial activism destroys this simple idea. With activist judges, no one knows what is required of them. Instead of written in stone, law and constitution are now just a matter of a judge’s whim. Whatever a majority of judges on court feel like any given day decides how people and institutions must behave. Now groups can follow all the appropriate laws relating to their behavior, and still be found guilty of crime or tort (punishable behavior harming someone.) Just ask the paint manufactures. And the real problem is that no one knows what the law will be beforehand. Only when the court changes established law to punish you do you know what was expected of you - but then it’s too late. In criminal cases, this is unconstitutional. Article 1, Section 9 of the US Constitution prohibits Congress from passing “ex post facto” laws (laws that make an act illegal and also punish people for committing the act before it was made illegal.) But in civil cases (“tort” law), activist judges can still retroactively punish people and organizations for acts not illegal when they committed them. Checks & Balances Judicial activism also erodes our governments system of checks & balances (or separation of powers). As we all learned in government class, the US government was set up with 3 equal branches, each having different particular powers and each able to limit some of the powers of the other branches (checks). This ensures that power is shared between them, and no one branch becomes too powerful (the three are equally “balanced” in power). Our constitution’s writers’ goal was to prevent any branch of government from oppressing the citizenry, by using the other two branches to keep it in line. Judicial activism erodes this system by increasing the power of the judiciary, mainly at the expense of the legislative branch. Activist decisions usurp the legislator’s role of setting social policy based on majority rule. If lead poisoning caused by deteriorating paint is a problem, the people of Wisconsin, through their elected representatives should decide how to address the problem; not by the Supreme Court deciding the group they hate the most (business) has to pay for the clean up. Such judicial fiat is not only anti-democratic, it is oppressive of whatever group the court targets. Credibility Besides de-stabilizing the law and usurping the legislature's role (and hence the people’s majority rights), activist decisions create a serious credibility problem for the judiciary. It is essential to remember that the judiciary has no method of enforcing its decisions. It relies on citizens’, groups’, and government institutions’ goodwill, to obey its rulings out of respect for the judicial system. Every activist decision handed down damages that credibility a tiny bit. If a court’s rulings are so out of line, and out of the mainstream, a time may come when citizens simply ignore it. Such a development sounds impossible, of course. But I do know of one legal seminar held that debated whether Christians, in light of certain separation of church & state rulings, could still obey the US government and Supreme Court, or whether peaceful non-compliance (as a conscientious Objector”) was a preferred stance. Far-fetched I know, but becoming thinkable. New Federalism “New Federalism” is a legal philosophy providing an alternative criterion for judging legal cases, which we have briefly mentioned in previous articles. Basically, New Federalism doctrine says that State judges can find or create greater, more extensive, wider-ranging civil rights for criminals and suspects under their state constitutions than the US Supreme Court has found under the US Constitution, even if the two constitutions have very similar or identical wordings. As long as the US Supreme Court was solidly liberal, activist state supreme courts were happy to rule based on the US Constitution. But once the US Supreme Court became more balanced, and was not guaranteed to uphold their activist verdicts, liberal activist state supreme judges had to find a means to safeguard their decisions from possible overruling by the US Supreme Court. State constitutions, via New Federalism, provided that means. How and why Justice Patrick Crooks has become an enthusiast of this doctrine, usually unthinkable for a conservative, is known only to him. But he has. He sided with the three historically liberal judges to form a four-judge majority in all four of the cases we have examined. He even cited it in his written opinion in the Dubose case. The odd thing about “New Federalism,” is that it isn’t found in any law or any constitution. It is a legal theory, or perhaps a legal philosophy, propounded by various law colleges since the 1970’s. It was first defined by liberal US Supreme Court William Brennan, during the heyday of liberalism, in a legal journal article. Like all judicial activism, New Federalism also erodes the power of checks and balances. By ruling on a case based on their state’s constitution, state supreme court judges have found a way to ensure their verdicts aren’t changed. Because the US Supreme Court doesn’t review decisions based on state constitutions. With no such review, state supreme courts are essentially “unchecked” by any other branch or level of government. Solutions So what can the concerned Wisconsin citizen do about this situation? First of all, if you agree with the Wisconsin Supreme Court’s recent decisions, do nothing. Our Supreme Court will be more than happy to continue making such rulings, allegedly on our behalf. Also, our current Governor will be happy to continue vetoing bills, also on our behalf, which were passed to correct the Supreme Court’s actions. If, however, you opposes these rulings, if you believe in innocent until proven guilty; if you believe that the legislature should write Wisconsin’s laws; if you believe Wisconsin should limit “jackpot justice” lawsuit awards, not welcome trial lawyers with open arms; and you believe the US Supreme Court should have the final say in establishing the rights of the accused, there are three things I know of which you can do. First, I suggest you look at Wisconsin FreedomWorks website at: http://cse.org/wisconsin/index.php. FreedomWorks is a group committed to lower taxes, less government, and more freedom. Liability & tort reform is one of their pet issues (they have just launched lawsuit abuse campaign), so you should be able to educate yourself about the issues starting on their web page. A second option conservatives had was to support a conservative, non-activist candidate running for Supreme Court against Patrick Crooks. Unfortunately, the filing deadline for such candidates is well past, with no candidates taking up the challenge. So that option is a not feasible until another liberal activist supreme court justice is up for election. The third option is to support a conservative candidate running for Governor. Even though Crooks is running unchallenged, eventually the governor will appoint another justice to the Court. And then it will be essential to have a Governor in office who will appoint a conservative, judicially restrained Justice to the Court. Just as judicial appointments was single biggest reason for re-electing President George Bush, reigning in the out of control, out of the mainstream Wisconsin Supreme Court with common sense judges is the single biggest reason to vote next fall. Remember these four cases when you may be thinking “my vote doesn’t count,” or you don’t feel like going to the polls after a busy day at work when the next election comes around. This year’s Governor election is as important to the citizens of Wisconsin as 2004’s presidential election was to the citizens of this country.
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