Costly fight shaping up for next Supreme Court seat

The more than $2.5 million pro-business groups spent on this spring's Supreme Court race could end up being just the warm-up act.

Unhappy with a string of decisions by the state Supreme Court loosening liability limits, Wisconsin Manufacturers & Commerce and the Club for Growth-Wisconsin jumped into this spring's race with both feet, using TV ads, mailers and automated phone calls to voters.

But while that effort was considered key in helping Annette Ziegler win a spot on the Supreme Court, it is likely to only maintain the status quo.

Ziegler, who was to be sworn in Aug. 1, billed herself as a strict constructionist on the campaign trail, a signal to court watchers that she would be a conservative jurist in the mold of Justice Jon Wilcox, the man she's replacing. If she holds true to expectations, that would leave the court split 3-3 among liberals and conservatives with Justice Patrick Crooks often the swing vote on big cases.

Battle for control ahead

That also means the real battle for control of the Supreme Court could be at stake next spring, when Justice Louis Butler goes before voters.

Appointed to the court by Gov. Jim Doyle in 2004, Butler has voted with the majority in decisions that have outraged business groups.

This spring's race was almost four times more expensive than the previous record Supreme Court campaign. But that record may not last long.

"If someone credible is persuaded to run, there will be a lot of money spent on the race," said Rick Esenberg, an adjunct professor at Marquette University who is teaching a course on the Wisconsin Supreme Court. He is also a conservative blogger and an attorney who has argued before the court.

"The balance of the court could shift again."

Court decisions assessed

Business groups have generally looked at three court decisions in 2005 as signs of a changing climate on the court.

The first came in a ruling over the crane accident in the construction of Milwaukee's Miller Park that made it easier to receive punitive damages.

Four months later, the court overturned caps on noneconomic damages in medical malpractice cases for things like pain and suffering and loss of companionship. The caps had been set at $350,000 in 1995 and adjusted for inflation each year, reaching $445,775 by 2005. The Legislature and the governor have since put into place new caps of $750,000, though those limits could be challenged in court some day as well.

That same year, the court ruled a Milwaukee boy could sue lead paint pigment manufacturers even though he could not prove which one of them made the paint that may have made him ill. That decision relaxed the burden of proof for plaintiffs to prove negligence.

Those decisions prompted a round of national stories about the court, including one Wall Street Journal editorial that proclaimed Wisconsin the Alabama of the North because of its worsening legal climate.

"Businesses need certainty and stability, and if the court doesn't provide that, it creates an environment that makes it hard for businesses to operate," said Jim Pugh, spokesman for Wisconsin Manufacturers & Commerce.

Pugh said Ziegler's election ensured the court did not expand into what he called a 5-2 activist majority. But he was coy about what plans the group may have for next spring's race when Butler goes before voters, insisting any efforts the group makes will be about educating voters on the issues.

Regardless of what WMC does, the state's liability climate is likely to surface in the race, even though Wisconsin ranked high in a recent survey on the topic.

The U.S. Chamber of Commerce's Institute for Legal Reform released its national rankings this spring for each state's tort liability system based off surveys of in-house general counsel or other senior corporate litigators with U.S. businesses.

After dropping Wisconsin to No. 23 last year following the Supreme Court decisions, the state was back up to No. 10 for 2007.

"This court has done a pretty good job giving us a playing field that is reliable and allows our clients to do their business with some level of certainty," said Milwaukee attorney Jeremy Levinson, who represents business clients on everything from contract disputes to employment matters and is active in Democratic politics.

"In that respect, I think the legal climate for businesses in this state is actually pretty positive."

Positive climate for business

Butler was a Milwaukee County Circuit Court judge when Doyle tapped him to fill the seat left vacant when Diane Sykes was appointed to the federal appeals court in Chicago. Butler also worked as a public defender and was serving as a Milwaukee Municipal Court judge in 2000 when he challenged Sykes and lost by an almost 2-to-1 margin.

Conservatives, who have already dubbed him "Loophole Louis," see the combination of Butler's experience as a public defender, his poor showing at the polls in 2000 and the 2005 decisions as ample reason to believe he could be vulnerable next spring. The fact he finished 2006 with less than $9,000 in his campaign account didn't diminish that view, either.

But Butler showed signs this spring that he was ramping up for a fight. In late spring, Butler announced he had hired an interim campaign director and a campaign coordinator. Both hires had worked for Doyle in various capacities, a sign to some legal observers that the governor would likely lend a hand to his appointee.

Butler followed that announcement up with news he had also hired a finance director, a sure sign that fundraising efforts were taking off.

Butler also has another factor working in his favor: It's been 40 years since a sitting Wisconsin Supreme Court justice lost an election. Then-Chief Justice George R. Currie's 1967 loss is usually chalked up to two reasons. He was nearing the mandatory retirement age in effect for judges at the time and would have only been able to serve two years of the 10-year term, and he signed onto a politically unpopular decision a year earlier that found antitrust laws could not be used to keep the Braves professional baseball team in Milwaukee.

None of the opinions Butler has signed onto have been as high profile as the court's decisions allowing the Braves to leave. But John McAdams, a Marquette University political science professor and conservative blogger, said unless conservatives fail to find a credible candidate to take on Butler in the spring, McAdams said the race is likely to eclipse the intensity - and expense - of this year's race.

"You're going to see a battle royale," he said.