By Tom Still
MADISON – During a week in which President Bush announced his choice for a seat on the U.S. Supreme Court, it would have been easy to overlook the storm building around the next election for a seat on the Wisconsin Supreme Court. If you’re a business owner worried about the next lawsuit, however, you should pay as much attention to recent decisions by Wisconsin’s highest court as you do the future of the federal court.
After several months of speculation he may retire, Justice Patrick Crooks of Green Bay announced he will seek re-election to a second, 10-year term on the Wisconsin Supreme Court. His decision surprised some court observers, who had noted Crooks wasn’t raising campaign funds and had been declining most speaking invitations.
Crooks’ announcement also came as Wisconsin Manufacturers & Commerce, the state’s largest business organization, became officially “fed up” with the state Supreme Court and blasted its recent decisions on key liability cases. Crooks, usually counted among the court’s judicial conservatives since his election in 1996, this month joined in two majority opinions seen as bad for business.
The first overturned Wisconsin’s cap on punitive damages in medical malpractice cases, which are “pain and suffering” damages awarded on top of actual damages. The second ruling allowed a lawsuit against lead paint pigment manufacturers to proceed, even when the plaintiff in the case could not identify which paint manufacturer had actually produced the paint. The latter case has implications for manufacturers who make component parts for larger products.
The one-two punch was more than WMC could stomach. President Jim Haney said the court had “put Wisconsin on course to having one of the worst legal climates in the country” with its rulings.
“The 4-3 activist court majority had made Wisconsin a magnet for trial lawyers seeking massive damage claims from manufacturers and other businesses,” Haney said. “The court’s recent rulings will make it easier and easier for clever lawyers to advance new theories to sue your business.”
Will WMC oppose Crooks’ re-election to the court? Not necessarily. Two potential opponents to Crooks — Linda Clifford and Mark Frankel, both of Madison — would need to prove they are not “activist” judges prone to overturning legislative intent. The only conservative candidate who had been positioning for a run, Michael Brennan of Milwaukee, said immediately he would not take on Crooks.
That doesn’t mean WMC won’t press its case for change, however. Look for product liability and malpractice reform to be an issue in the campaign, even if Crooks winds up running against a relatively unknown candidate.
In the meantime, WMC is pressing for a legislative remedy. It has launched a fundraising campaign, called the “WMC Job Defense Fund,” to fight for liability reform through a public-relations campaign and support for a Senate-passed bill (SB 58) that is awaiting action in the Assembly. That bill could receive a vote this fall.
The WMC isn’t picking this fight unarmed. It recently commissioned a study of how the Wisconsin Supreme Court handled more than 90 employment, insurance, malpractice, product liability, worker’s compensation and other liability cases.
The study, prepared by the Judicial Evaluation Institute in Washington, D.C., and Sequoyah Information Systems, ranked five of the seven current justices on “restraining the spread of liability.” Chief Justice Shirley Abrahamson received the lowest score with a 25 percent mark, followed by Justices Ann Walsh Bradley (31 percent), David Prosser (54 percent), Crooks (56 percent) and John Wilcox (70 percent). There were no ratings for Justices Pat Roggensack or Louis Butler, who were relatively new to the court.
Business is serious about what it believes is a huge threat to the Wisconsin economy. The good accomplished by cutting taxes and reducing regulation can be undone if companies are hurt by lawsuits that push the envelope of existing law. When judicial opinions actively expand on legislative intent, it’s only natural that business would ask the Legislature to tighten the law.