On his first day as a former justice of the Wisconsin Supreme Court, Justice Louis B. Butler, Jr., addressed the National Association of Criminal Defense Lawyers, which was holding its 50th annual convention in Milwaukee on Aug. 1.
Discussing the loss of his seat to Justice Michael Gableman in April, for the first time since the election, Butler laid the blame with Wisconsin Manufacturers & Commerce. He said the election sent a chilling message to judges: “Do not vote against business interests; and if you do, avoid representing criminal defendants in your career.”
Butler traced his defeat to three civil cases decided in 2005: the Miller Park case, which lowered the threshold for awarding punitive damages; the Ferdon case, which struck down the cap on medical malpractice damages for pain and suffering; and Thomas v. Mallett, which applied the risk contribution theory of liability to manufacturers of lead paint.
After those decisions, Butler stated, “A powerful special interest group, [WMC], decided then that I had to go. It deduced that since my arrival on the court, our court's decisions sometimes favored the consumer, and that was unacceptable.”
He was targeted, he said. “I was called ‘a judicial activist’ simply because I did not vote with WMC 100 percent of the time.”
Noting that neither Justice Ann Walsh Bradley, nor Justice N. Patrick Crooks, were opposed, even though they had been in the majority in those cases, Butler posited that it was because neither had a criminal defense background.
Butler said, “WMC basically has no interest in the criminal law area. …WMC really couldn’t attack me or attack the court because of the liability rulings. … But I could be attacked because I had had the audacity to represent criminals at one point in my career. … I could be easily attacked for doing what I was supposed to do.”
WMC therefore recruited and found a candidate who had a prosecutorial background to contrast with his, and his opponent ran ads unfairly attacking him for representing a defendant on an appeal, falsely suggesting that it resulted in a child being raped.
By using his earlier work defending criminal defendants as a means of affecting outcomes in civil cases, Butler claimed, “A seat on the court was bought. … [They] will continue to go around the country, and purchase our court system one at a time.”
In an interview with Wisconsin Law Journal, Jim Pugh, Director of Public Relations for WMC, took issue with Butler’s characterizations of WMC’s role as “unfortunate and untrue.”
Pugh stated, “WMC never ran any ads discussing his work as a defense attorney, and never said it resulted in a child being raped.”
Pugh noted that, during his campaign, Butler embraced his former nickname, “Loophole Louie,” and thus, WMC’s use of the term in a television ad was contemporaneous with that. “But our discussion centered exclusively on his tenure on the court.”
Pugh called the three civil cases Butler mentioned as “massive power grabs by the court,” and added, “There was a very robust debate about these cases and his activist approach was repudiated by the voters.”
At the same luncheon, Milwaukee attorney James M. Shellow, of Shellow & Shellow, SC, was awarded NACDL’s Lifetime Achievement Award.
Shellow proudly declared that NACDL was the only legal organization of which he was a member and had ever been a member. After a pause, he sheepishly acknowledged that he was also a member of the Wisconsin State Bar, before defiantly explaining that it was only under protest that he belonged to the mandatory group.