By Tom Still

MADISON – Another race for Wisconsin Supreme Court and another round of ads, from candidates and special interests alike, that would have voters believe the April 7 general election is about being “tough on crime.”

Sure, criminal cases are among the 100 or so cases reviewed in a typical year by the state’s highest court, but that’s only on appeal – and rarely before those cases are heard by an intermediate Court of Appeals. The only time most Supreme Court judges see a criminal or a victim is when they’re inspecting one of Wisconsin’s 246 circuit courts, a state prison or a county jail.

Most of the judicial action in the criminal justice system takes place in Wisconsin’s circuit courts. While there are important Supreme Court rulings that can change how the lower courts, the police or prosecutors go about doing their jobs, the state’s highest court doesn’t hold trials and doesn’t hand down sentences.

Over time, the Supreme Court is more likely to deal with cases that can alter your automobile insurance policy, revise your city zoning laws or affect a myriad of laws covering families, businesses and individuals.

That little-understood fact about the Wisconsin Supreme Court emerged during Friday night’s “We the People/Wisconsin” debate between Chief Justice Shirley Abrahamson and Jefferson County Circuit Judge Randy Koschnick. An exchange over a controversial civil case illustrated the point.

Koschnick criticized Abrahamson during the debate for siding with the majority in a 2005 ruling best known as “the lead paint” case. Critics say the court’s ruling opened the doors for litigants to bring suit against a group of defendants without identifying the specific manufacturer of a defective product or a product that causes injury.
Because of the scope of the ruling, component manufacturers believe they’re at risk of pass-through litigation that could hold them liable, even if they produced an incidental and otherwise safe component of the product.

“Many innocent business owners in that situation could be subject to a requirement that they pay a judgment when though they have done nothing wrong,” Koschnick said. “(These) decisions create an unstable legal environment, an unstable economic environment, drive business from Wisconsin and contribute to the high unemployment rate.”

Abrahamson replied the ruling wasn’t an example of an “activist court” writing law, as others have charged since 2005, but a decision that rested on ample legal precedent.

“Who won the case?” she reminded Koschnick. He replied, correctly, that the makers of the lead paint won an appeal of the case brought by a brain-damaged youth. The manufacturers won on retrial because it was determined the youth’s brain damage was caused by something else – not the paint applied to his home decades earlier, when lead paint was legal.  As a result, the expanded liability language written by the Supreme Court during its review still stands.

The discussion continued when both candidates were asked what civil law trends they expected to confront the court in coming years.

“One can expect there will be cases from A to Z – from auto accidents to zoning,” said Abrahamson, who added she also expects insurance and family law cases will remain a big part of the civil case mix.

Koschnick said he expects to see more cases involving property rights, the “conflict of state and federal law” between the Internet and interstate commerce, and intellectual property. He predicted cases such as the lead paint ruling will prompt an explosion in litigation.

Through exchanges such as those, both candidates admit there’s a lot more to being a Supreme Court justice than handling the occasional criminal case appeal. Voters should remember that, too, when they vote on April 7. You’re electing a judge who will be expected to fairly and wisely rule on all of state law, not just that portion which makes for the most dramatic television ads.

Still is president of the Wisconsin Technology Council. He was a co-founder of “We the People/Wisconsin,” the nation’s oldest civic journalism project.