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Butler speech attacks WMC

imageOn 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.


  1. All you ever hear from Louis Butler is HIS defeat was everyone else’s fault but his own. Perhaps with all his free time he can conduct some self reflection about himself. Also he could have showed a lot more grace in his defeat. Your reaction to your defeat months after the fact says a lot about you.

  2. And which defeat was he talking about? The first or the second?

  3. Butler’s bad record followed him from when he was a Milwaukee Municipal Judge and regularly dismissed shoplifting cases because, in his strange mind, the store security personnel had no right to detain shoplifters. It is this record, after being made public, that lead to his defeat. He could not and never did win an election when the voters saw who he really was. Contrary to the voters’ wishes, Butler was given two jobs by Governor Jim Doyle. That is not the only appointment mistake Doyle made, though.

  4. Jim Pugh sounds so innocent . He was the person who provided all of the research on the complaint with the GAB about the relationship between Freibert, Finerty et al and Louis Butler.

  5. I agree with Louis Butler. Doing the right thing for the people of Wisconsin cost him this election. It was also the second time in a row that a candidate for the high court won by attacking lawyers for simply doing their jobs. It’s a sad commentary on Wisconsin that we now have two justices who were elected by running against lawyers – in both cases lawyers for the common man and the poor. Nobody likes criminals, but if you represent white-color criminals, like all those corrupt legislators in Madison, you’re okay. representing street criminals is verboten.

    Race does matter and it once again reared its ugly head in this election. A white guy with a southern-plantation mentality who had absolutely no appellate law experience, and whose judicial hero Billy Rehnquist was a quintessential racist/fascist, defeated one of the most experienced appellate lawyers in Wisconsin who is black, by running a racist campaign to get elected. A sad day for all in Wisconsin.

  6. I’m not sure it’s Butler’s defeat that has him upset so much as why he was defeated. He was defeated because Gableman and the WMC painted Butler as someone who always votes to reverse criminal convictions, when indeed it is the exception, not the rule. The election became about Butler’s criminal law experience BEFORE becoming a Wisconsin Supreme Court justice. If the real problem was Butler’s business decisions, then why not have an open dialog about that? We all know why: there’s no better way to sway uninformed voters than make them think there lives are in danger. I actually think if Butler had lost in an election where there was a meaningful debate about the real issues, then he wouldn’t be as upset. You can think otherwise, but certainly, Pugh excepted, actually thinks this election was a real debate about the issues.

  7. It seems that by attacking WMC for running ads about criminal cases, when WMC did not run these ads, Justice Butler is perpetuating the myth of WMC being propagated by others in the Democrat community – to paint WMC as extreme, nasty, etc. Justice Butler in other words has his own political agenda, and as cheap as his whining about defeat is, politics enter into every election, and in fact every judge’s decisions. One’s political philosophy can be minimalist, and therefore conservative, or it can be expansionist and activist, as Loophol Louis’s is, or it can be informed by any of a number of basic tenets: these are up to the voter to determine and judge. I don’t think judge’s like being judged. For some reason they believe their objectivity is compromised by standing for election.Either you believe in your decisions or you don’t, and either you successfully convey that to the electorate (usually once every 10 years for the Supreme Court, how hard is that?). Butler did not. And Justice Butler: whine all you want about other judges not being challenged, or being unfairly depicted in ads, when you happily adopt the nickname Loophole Louis and see no problem with it as a moniker – you will have problems -rightly so – if you go before the general public for a vote.

  8. I need to correct an error on my part here, everybody. the article as originally written said that wmc ran the “the prosecutor” ad. I have since reviewed Justice Butler’s written speech, and he said WMC recruited his opponent, and his oppenent ran the ad.

    I’ve fixed the article to reflect that.

    My apologies to Justice Butler for my mistake, and to the rest of you for a misleading statement.

  9. Last year the WMC ran ads for Ziegler that attacked personal injury lawyers as being anti-social creeps who are harming society. This year the WMC egged on Gableman to make claims that criminal defense lawyers are bad people who harm society. Both lines of thought are outrageous.

    It’s ironic that when the right-wing wants to prosecute blacks, Constitutional rights are called “loopholes.” But when a fanatic like Oliver North commits crimes and is let off the hook by the exclusionary rule, that is called a “Constitutional freedom.” Clearly, Republicans, big business and the WMC see the same rights differently according to the type of defendant. Meanwhile, the public hasn’t a clue. As far as I can tell, by population, the Wisconsin Legislature has the highest percentage of criminals in Wisconsin. Almost every real crime that truly harms people is caused by white men, but according to Gableman the real face of crime is black. if he’s not a rascist, he surely has engaged in race-baiting which is just as offensive.

    I hope everybody noticed the second racial attack on Democratic Party headquarters in rural Wisconsin yesterday. This state is full of racists and a black candidate for the Supreme Court has to deal with that. it’s a disgrace and a fact. That Gableman would use race to get elected is more offensive than his attacks on criminal defense lawyers.

  10. Thank God he was defeated and we can only hope Shirley will be next.

  11. Justice Butler proven record shows his understanding of common law and that the law applies to everyone not just to certain interest to fit there needs. Justice Butler’s opinions at the highest court of the state will give needed guidance to young lawyers coming out of law school and those older lawyers that need to see that we have a foundation of common law and it must apply today not tommorrow.

    As Justice Butler stated in a March 21 opinion with the MJS,

    “The job of an attorney is to advocate for their client to the best of their ability. As a judge, or a justice, my job is to interpret and apply the law in a fair and impartial manner. In making those determinations, judges are involved in dispute resolution. Our job is to hear the problem that the parties bring to court and to apply the law to the facts of a given case. My process for doing that, is first to apply the U.S. Constitution, then the Wisconsin Constitution, which has a long and glorious history, third, to apply state statutes, then our common law, then finally our court’s prior precedent. Our goal is justice.”

    My hope is that Justice Butler keep his goals as a imparital and common law judge and the great people of Wisconsin push there State Sen, Federal Sen Kohl and Feingold to open the thought of fair Justice in Wisconsin by making a recommedation to the next president of the U.S. to appoint him to the Western District of Wisconsin opening with the retirement of District Jude Shabaz.

    I pray that united comes back to the common law grounds and that Justice Butlers name holds as high as the Late U.S.Supreme Court Justice Marshall.

    So young lawyers read for yourself and do the right thing not the costly thing.

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