SUPREME COURT OF WISCONSIN
In the matter of attorneys fees in:
Grant E. Storms, plaintiff v. Action
Wisconsin Inc. and Christopher Ott, defendants.
JAMES R. DONOHOO,
Appellant,
vs.
Appeal No. 2006AP000396
ACTION WISCONSIN, INC. and
CHRISTOPHER OTT, Circuit Court
Case No. 2004CV002205
Respondents.
APPELLANT'S (PETITIONER'S) MEMORANDUM IN SUPPORT OF
PETITION FOR DISQUALIFICATION OF
JUSTICE LOUIS B. BUTLER, JR. BY LAW
AND IN SUPPORT OF PETITION FOR REHEARING
James R. Donohoo, Appellant (Petitioner), has filed with the Court a Petition for disqualification of Justice Louis B. Butler, Jr. by law, and a petition for rehearing. This memorandum is submitted in support of said petitions.
The Court's decision on the petition for disqualification of Justice Butler by law will establish the ethical standards regarding campaign contributions for all future elections. The questions are:
(1) Is it acceptable for a Supreme Court Justice to continue to participate in a pending case where, while campaigning for reelection, the justice accepted serial contributions from a party in a pending case before the Court and did not disclose the contributions to the opposing party, especially in a situation where that justice publicly vowed to refuse contributions from parties that had pending cases before the Court, and where it appeared that the acceptance of the contributions and the failure to disclose them to the opposing party cast serious doubt on the justice's impartiality on the pending case, and where the conduct created the appearance of impropriety which would undermine the public's confidence in the integrity and impartiality of the judiciary?
(2) Is it acceptable for a Supreme Court Justice to continue to participate in a pending case where, while campaigning for reelection, the justice appeared before a PAC and avowed the justice's support for the PAC's goals and agenda to garner the PAC's endorsement, which endorsement was subsequently obtained, and where the justice failed to disclose this to a litigant in a pending case where it appeared that the justice's appearances and remarks would affect the justice's impartiality on the pending case, and gave the appearance of impropriety, and thereby undermined the public's confidence in the integrity and impartiality of the judiciary?
(3) Is it acceptable for a Supreme Court Justice to continue to participate in a pending case where the justice violated the Code of Judicial Conduct by appearing at a PAC fundraiser and lending the prestige of the justice's office to help raise money for the PAC at the fundraiser, and failed to disclose this to the parties, where it appears that the justice's violation of the Code of Judicial Conduct cast serious doubt on the justice's impartiality, and gave the appearance of impropriety, and thereby undermined the public's confidence in the integrity and impartiality of the judiciary?
Background.
Grant Storms (Storms) filed a complaint against the Respondents, Action Wisconsin, Inc. and Christopher Ott, alleging defamation on February 23, 2004. Storms was represented by the Petitioner. Summary judgment motions were filed by both parties. On June 28, 2005 the trial court, the Honorable Patricia D. McMahon presiding, issued a decision and order granting the Respondents' motion for summary judgment and dismissing the action.
The Respondents previously filed a motion requesting their actual attorney's fees and costs pursuant to Wis. Stat. § 802.05 and § 814.025. On January 4, 2006 the trial court entered an order granting the Respondents' motion for costs and attorneys fees, awarding the Respondents attorney's fees and costs in the sum of $87,452.59. Said fees and costs were awarded against the Petitioner only, and not against Storms.
The Petitioner appealed the awarding of fees and costs to the Court of Appeals, District 1. On May 30, 2007, the Court of Appeals issued its opinion reversing the decision of the trial court awarding fees and costs against the Petitioner, and finding that the trial court erred in ruling that the Petitioner filed and continued the lawsuit without a sufficient factual and legal basis. Not only did the Court of Appeals find that the commencement and continuation of the action was clearly not frivolous, but additionally found that the trial court erred in dismissing the lawsuit, and that the lawsuit should have been allowed to go to a jury for decision. However the Court of Appeals did not reverse the summary judgment finding because the dismissal of the lawsuit had not been appealed by Storms.
The Supreme Court issued a decision on June 5, 2008, reversing the Court of Appeals. This decision was a 4-3 decision. Justice Ann Walsh Bradley authored the majority opinion, and was joined by Chief Justice Abrahamson, and Justices Crooks and Butler. The dissent was authored by Justice Roggensack, and was joined by Justices Prosser and Ziegler.
In the matter of attorneys fees in:
Grant E. Storms, plaintiff v. Action
Wisconsin Inc. and Christopher Ott, defendants.
JAMES R. DONOHOO,
Appellant,
vs.
Appeal No. 2006AP000396
ACTION WISCONSIN, INC. and
CHRISTOPHER OTT, Circuit Court
Case No. 2004CV002205
Respondents.
APPELLANT'S (PETITIONER'S) MEMORANDUM IN SUPPORT OF
PETITION FOR DISQUALIFICATION OF
JUSTICE LOUIS B. BUTLER, JR. BY LAW
AND IN SUPPORT OF PETITION FOR REHEARING
James R. Donohoo, Appellant (Petitioner), has filed with the Court a Petition for disqualification of Justice Louis B. Butler, Jr. by law, and a petition for rehearing. This memorandum is submitted in support of said petitions.
The Court's decision on the petition for disqualification of Justice Butler by law will establish the ethical standards regarding campaign contributions for all future elections. The questions are:
(1) Is it acceptable for a Supreme Court Justice to continue to participate in a pending case where, while campaigning for reelection, the justice accepted serial contributions from a party in a pending case before the Court and did not disclose the contributions to the opposing party, especially in a situation where that justice publicly vowed to refuse contributions from parties that had pending cases before the Court, and where it appeared that the acceptance of the contributions and the failure to disclose them to the opposing party cast serious doubt on the justice's impartiality on the pending case, and where the conduct created the appearance of impropriety which would undermine the public's confidence in the integrity and impartiality of the judiciary?
(2) Is it acceptable for a Supreme Court Justice to continue to participate in a pending case where, while campaigning for reelection, the justice appeared before a PAC and avowed the justice's support for the PAC's goals and agenda to garner the PAC's endorsement, which endorsement was subsequently obtained, and where the justice failed to disclose this to a litigant in a pending case where it appeared that the justice's appearances and remarks would affect the justice's impartiality on the pending case, and gave the appearance of impropriety, and thereby undermined the public's confidence in the integrity and impartiality of the judiciary?
(3) Is it acceptable for a Supreme Court Justice to continue to participate in a pending case where the justice violated the Code of Judicial Conduct by appearing at a PAC fundraiser and lending the prestige of the justice's office to help raise money for the PAC at the fundraiser, and failed to disclose this to the parties, where it appears that the justice's violation of the Code of Judicial Conduct cast serious doubt on the justice's impartiality, and gave the appearance of impropriety, and thereby undermined the public's confidence in the integrity and impartiality of the judiciary?
Background.
Grant Storms (Storms) filed a complaint against the Respondents, Action Wisconsin, Inc. and Christopher Ott, alleging defamation on February 23, 2004. Storms was represented by the Petitioner. Summary judgment motions were filed by both parties. On June 28, 2005 the trial court, the Honorable Patricia D. McMahon presiding, issued a decision and order granting the Respondents' motion for summary judgment and dismissing the action.
The Respondents previously filed a motion requesting their actual attorney's fees and costs pursuant to Wis. Stat. § 802.05 and § 814.025. On January 4, 2006 the trial court entered an order granting the Respondents' motion for costs and attorneys fees, awarding the Respondents attorney's fees and costs in the sum of $87,452.59. Said fees and costs were awarded against the Petitioner only, and not against Storms.
The Petitioner appealed the awarding of fees and costs to the Court of Appeals, District 1. On May 30, 2007, the Court of Appeals issued its opinion reversing the decision of the trial court awarding fees and costs against the Petitioner, and finding that the trial court erred in ruling that the Petitioner filed and continued the lawsuit without a sufficient factual and legal basis. Not only did the Court of Appeals find that the commencement and continuation of the action was clearly not frivolous, but additionally found that the trial court erred in dismissing the lawsuit, and that the lawsuit should have been allowed to go to a jury for decision. However the Court of Appeals did not reverse the summary judgment finding because the dismissal of the lawsuit had not been appealed by Storms.
The Supreme Court issued a decision on June 5, 2008, reversing the Court of Appeals. This decision was a 4-3 decision. Justice Ann Walsh Bradley authored the majority opinion, and was joined by Chief Justice Abrahamson, and Justices Crooks and Butler. The dissent was authored by Justice Roggensack, and was joined by Justices Prosser and Ziegler.
Justice Butler Accepted Campaign Contributions From Litigants In Pending Case After Publicly Proclaiming He Would Not Do So, And Failed To Disclose Those Contributions To The Petitioner James Donohoo.
The Petitioner has discovered evidence that Justice Butler was disqualified by law from participating in Petitioner's case because of his financial and personal interest in the outcome of the case, and his violation of the Supreme Court Rules (SCR). Justice Butler was appointed to the Supreme Court bench by Governor James Doyle in August of 2004, and was involved in November of 2007 in an election campaign against Judge Michael Gableman. The Milwaukee Journal Sentinel reported on November 28, 2007 that Justice Butler had told the Journal Sentinel that he had adopted a new policy on disclosing campaign contributions. Justice Butler said he would refuse donations from parties that had cases before the Court, but that he would accept donations from lawyers representing those parties, but he would disclose them to the litigants(Exhibit 1).
The Journal Sentinel also reported that Justice Butler did not immediately disclose that an attorney appearing before the Supreme Court on a tax case had not only contributed $500 to his election campaign, but additionally had sat on his campaign finance committee. The Journal Sentinel reported that Justice Butler eventually disclosed those details to the parties in the tax case just hours after the Journal Sentinel inquired about it. A campaign spokesman for Justice Butler additionally said Justice Butler's disclosure system was working (Exhibit 1).
The Respondents, Action Wisconsin Inc. and Christopher Ott, are represented by the law firm of Cullen, Weston, Pines & Bach. Attorneys Lester A. Pines and Tamara B. Packard from the law firm specifically appeared on the Respondents' behalf. On June 29, 2007, Attorney Pines filed on behalf of Action Wisconsin Inc. and Christopher Ott, its executive director, a petition for review of the Court of Appeals' decision reversing the award of the attorney's fees and costs against the Petitioner. On July 23, 2007, Attorney Pines contributed $300 to Justice Butler's election campaign. On September 11, 2007, the Supreme Court accepted review of the Court of Appeals' decision in the Petitioner's action.
On December 3, 2007, Justice Butler sent a letter to the Petitioner disclosing the $300 contribution from Attorney Pines, and informing the Petitioner that said contribution would not affect Justice Butler's impartiality in his participation in the Petitioner's case. Justice Butler did not disclose any other contributions.
On March 28, 2008, Wisconsin Family Action, Inc. filed a formal request for investigation with the Wisconsin Judicial Commission, charging that Justice Butler had misled citizens and impaired his ability to render fair and impartial decisions in cases affecting the so-called "gay rights and marriage" (Exhibit 2). The Supreme Court issued its decision on the Petitioner's case on June 5, 2008. Approximately two weeks before the decision was issued, Petitioner discovered, for the first time, the judicial complaint of Wisconsin Family Action against Justice Butler. Petitioner discovered this complaint by searching the Internet under Petitioner's name. Prior to that time, Petitioner had no knowledge of any of the relevant facts contained in the judicial complaint, except that Attorney Lester Pines contributed $300 to Justice Butler's reelection campaign on July 23, 2007.
Since requesting a disqualification of a judge at law is a serious matter, the Petitioner needed some time to research the matter and evaluate all of the information. Therefore the Petitioner was not able to make an immediate decision on requesting disqualification at law. The Petitioner also discovered during this time the additional facts cited in this memorandum. Before the Petitioner could make a final decision on filing a petition for disqualification at law, the Supreme Court issued its decision on June 5, 2008.
That complaint documented that on June 30, 2007, one day after Action Wisconsin had filed with the Supreme Court its petition to review the Court of Appeals' decision reversing the awarding of approximately $90,000 in costs and fees against the Petitioner, that Peter Bock, a board member of Fair Wisconsin had contributed $125 to Justice Butler's election campaign. Furthermore Ruth Irvings, another board member of Fair Wisconsin, had contributed $100 to Justice Butler's election campaign on December 7, 2007. Also on January 28, 2008, Ruth Irvings contributed an additional $1000 to Justice Butler's election campaign, said contribution occurring 13 days after the oral arguments were held on the Petitioner's case on January 15, 2008.
Fair Wisconsin and Action Wisconsin are the same entity. In February of 2006, Action Wisconsin formed Fair Wisconsin as its PAC opposing Wisconsin's marriage protection amendment in the 2006 election. In November of 2006, Fair Wisconsin transferred $27,000 and all of its remaining debts to Action Wisconsin. In December of 2006, Action Wisconsin changed its name to Fair Wisconsin (Exhibit 2). Therefore when Peter Bock and Ruth Irvings made their contributions to Justice Butler's election campaign, they were for all purposes board members of the Respondent, Action Wisconsin, Inc.
The Petitioner has discovered evidence that Justice Butler was disqualified by law from participating in Petitioner's case because of his financial and personal interest in the outcome of the case, and his violation of the Supreme Court Rules (SCR). Justice Butler was appointed to the Supreme Court bench by Governor James Doyle in August of 2004, and was involved in November of 2007 in an election campaign against Judge Michael Gableman. The Milwaukee Journal Sentinel reported on November 28, 2007 that Justice Butler had told the Journal Sentinel that he had adopted a new policy on disclosing campaign contributions. Justice Butler said he would refuse donations from parties that had cases before the Court, but that he would accept donations from lawyers representing those parties, but he would disclose them to the litigants(Exhibit 1).
The Journal Sentinel also reported that Justice Butler did not immediately disclose that an attorney appearing before the Supreme Court on a tax case had not only contributed $500 to his election campaign, but additionally had sat on his campaign finance committee. The Journal Sentinel reported that Justice Butler eventually disclosed those details to the parties in the tax case just hours after the Journal Sentinel inquired about it. A campaign spokesman for Justice Butler additionally said Justice Butler's disclosure system was working (Exhibit 1).
The Respondents, Action Wisconsin Inc. and Christopher Ott, are represented by the law firm of Cullen, Weston, Pines & Bach. Attorneys Lester A. Pines and Tamara B. Packard from the law firm specifically appeared on the Respondents' behalf. On June 29, 2007, Attorney Pines filed on behalf of Action Wisconsin Inc. and Christopher Ott, its executive director, a petition for review of the Court of Appeals' decision reversing the award of the attorney's fees and costs against the Petitioner. On July 23, 2007, Attorney Pines contributed $300 to Justice Butler's election campaign. On September 11, 2007, the Supreme Court accepted review of the Court of Appeals' decision in the Petitioner's action.
On December 3, 2007, Justice Butler sent a letter to the Petitioner disclosing the $300 contribution from Attorney Pines, and informing the Petitioner that said contribution would not affect Justice Butler's impartiality in his participation in the Petitioner's case. Justice Butler did not disclose any other contributions.
On March 28, 2008, Wisconsin Family Action, Inc. filed a formal request for investigation with the Wisconsin Judicial Commission, charging that Justice Butler had misled citizens and impaired his ability to render fair and impartial decisions in cases affecting the so-called "gay rights and marriage" (Exhibit 2). The Supreme Court issued its decision on the Petitioner's case on June 5, 2008. Approximately two weeks before the decision was issued, Petitioner discovered, for the first time, the judicial complaint of Wisconsin Family Action against Justice Butler. Petitioner discovered this complaint by searching the Internet under Petitioner's name. Prior to that time, Petitioner had no knowledge of any of the relevant facts contained in the judicial complaint, except that Attorney Lester Pines contributed $300 to Justice Butler's reelection campaign on July 23, 2007.
Since requesting a disqualification of a judge at law is a serious matter, the Petitioner needed some time to research the matter and evaluate all of the information. Therefore the Petitioner was not able to make an immediate decision on requesting disqualification at law. The Petitioner also discovered during this time the additional facts cited in this memorandum. Before the Petitioner could make a final decision on filing a petition for disqualification at law, the Supreme Court issued its decision on June 5, 2008.
That complaint documented that on June 30, 2007, one day after Action Wisconsin had filed with the Supreme Court its petition to review the Court of Appeals' decision reversing the awarding of approximately $90,000 in costs and fees against the Petitioner, that Peter Bock, a board member of Fair Wisconsin had contributed $125 to Justice Butler's election campaign. Furthermore Ruth Irvings, another board member of Fair Wisconsin, had contributed $100 to Justice Butler's election campaign on December 7, 2007. Also on January 28, 2008, Ruth Irvings contributed an additional $1000 to Justice Butler's election campaign, said contribution occurring 13 days after the oral arguments were held on the Petitioner's case on January 15, 2008.
Fair Wisconsin and Action Wisconsin are the same entity. In February of 2006, Action Wisconsin formed Fair Wisconsin as its PAC opposing Wisconsin's marriage protection amendment in the 2006 election. In November of 2006, Fair Wisconsin transferred $27,000 and all of its remaining debts to Action Wisconsin. In December of 2006, Action Wisconsin changed its name to Fair Wisconsin (Exhibit 2). Therefore when Peter Bock and Ruth Irvings made their contributions to Justice Butler's election campaign, they were for all purposes board members of the Respondent, Action Wisconsin, Inc.
Despite The Fact That Justice Butler Cast The Deciding Vote Against The Petitioner James Donohoo, A Case Where Petitioner's Professional Reputation And Financial Livelihood Were At Stake, Justice Butler Failed To Disclose To The Petitioner That He had Accepted Campaign Contributions From Petitioner's Opponent In The Lawsuit.
The compromise of Justice Butler's impartiality by accepting serial donations from a litigant in a case pending before him as a Supreme Court justice, in violation of his November 2007 proclamation not to do so, was further compounded by his failure to disclose to the Petitioner these contributions. The Petitioner's professional reputation and financial livelihood were on the line regarding the Supreme Court's ruling, yet despite this, Justice Butler accepted the contributions from Action Wisconsin and failed to disclose them to the Petitioner. The concern of the Petitioner is with the apparent inconsistency of Justice Butler in his believing it necessary to report to the Petitioner the $300 donation from an attorney for the litigant, but not contributions in excess of $1,200 from the litigant. It would appear to the Petitioner that Justice Butler deliberately sought to create the impression that he was transparent and completely forthcoming in his integrity, and that his impartiality had been proven by divulging the initial $300 contribution from Attorney Pines.
By Justice Butler accepting serial contributions from a litigant after he had vowed to not do so, and by his failure to report the acceptance of these contributions from the litigant to the Petitioner, Justice Butler deprived the Petitioner of the opportunity to object to Justice Butler's participation in the Petitioner's case based on these contributions.
Even after Justice Butler was notified of the judicial complaint which was filed against him on March 28, 2008, (related partially to the Petitioner's case) and the donations from Action Wisconsin (Fair Wisconsin) board members, he still failed to disclose the contributions to the Petitioner.
The compromise of Justice Butler's impartiality by accepting serial donations from a litigant in a case pending before him as a Supreme Court justice, in violation of his November 2007 proclamation not to do so, was further compounded by his failure to disclose to the Petitioner these contributions. The Petitioner's professional reputation and financial livelihood were on the line regarding the Supreme Court's ruling, yet despite this, Justice Butler accepted the contributions from Action Wisconsin and failed to disclose them to the Petitioner. The concern of the Petitioner is with the apparent inconsistency of Justice Butler in his believing it necessary to report to the Petitioner the $300 donation from an attorney for the litigant, but not contributions in excess of $1,200 from the litigant. It would appear to the Petitioner that Justice Butler deliberately sought to create the impression that he was transparent and completely forthcoming in his integrity, and that his impartiality had been proven by divulging the initial $300 contribution from Attorney Pines.
By Justice Butler accepting serial contributions from a litigant after he had vowed to not do so, and by his failure to report the acceptance of these contributions from the litigant to the Petitioner, Justice Butler deprived the Petitioner of the opportunity to object to Justice Butler's participation in the Petitioner's case based on these contributions.
Even after Justice Butler was notified of the judicial complaint which was filed against him on March 28, 2008, (related partially to the Petitioner's case) and the donations from Action Wisconsin (Fair Wisconsin) board members, he still failed to disclose the contributions to the Petitioner.
Justice Butler Appeared At An Intimate Garden Party Fund Raiser For The Homosexual PAC And Avowed His Support For LGBT Equality, And Undoubtedly Helped Raised Funds For The PAC In Violation Of SCR 60.05(1) and SCR 60.05(3)(c)2.d., And Obtained The PAC Endorsement.
But there is more. Another disturbing piece of evidence has come to Petitioner's attention that constitutes not just another illustration of Justice Butler's financial interest in Petitioner's case, but also his personal interest in Petitioner's case. The Center Advocates Political Action Committee (hereinafter PAC) as of August 2007, was the only PAC group in Wisconsin supporting "LGBT (lesbian, gay, bi-sexual, and transgender) equality" and the passage of legislation at the local, state, and federal level benefitting LGBT people and their families. The PAC's sole purpose is to advance the cause of LGBT equality, including same-sex marriage. Similarly at the same time, Action Wisconsin (Fair Wisconsin) was the only Wisconsin non-PAC group committed to promoting LGBT equality and the passage of legislation advancing that cause. The PAC and Action Wisconsin (Fair Wisconsin) work together for the same goals.
The PAC on January 22, 2008, seven days after oral argument on the Petitioner's case, endorsed Justice Butler, among other candidates, for the Wisconsin Supreme Court. Their endorsement noted "these candidates have a long history of advancing LGBT equality through legislation or support of current legislation that protects LGBT people. Each one has either voted in their position against the amendment to ban same-gender marriage or have spoken out on behalf of fair and equal treatment of LGBT families in Wisconsin" (Exhibit 3).
An additional PAC Internet posting in March of 2008 endorsing Justice Butler indicated: "PAC endorsed candidate support LGBT equality and the passage of legislation at the local, state, and federal level to protect LGBT people and their families. Each have committed to work towards this goal of equality for the LGBT community. Wisconsin Court Races. Justice Louis Butler - Wisconsin Supreme Court. Justice Butler is the only WI Supreme Court judge from Milwaukee and (sic) first African-American to serve on the highest Wisconsin court. This past summer, Justice Butler attended and spoke at the Center Advocates PAC Garden Party for Equality. Justice Butler spoke in support of LGBT equality and protection for LGBT people and their families." (Exhibit 4)
The PAC "Garden Party" was held on August 26, 2007. The "Garden Party" was obviously a hardcore intimate fund raising event. The PAC's website reporting on the event had color photos of supporters of the PAC, and additionally had a color photo of Justice Butler, in casual attire, addressing the attendees of the fund raiser. See http://www.hrl-pac.org/id53.html (Exhibit 5).
SCR 60.05(3)(c) 2.d. forbids a Supreme Court justice, in any capacity, from using or permitting the use of the prestige of the judicial office for fund raising. Petitioner has attached hereto a copy of Opinion 98-3 issued on February 19, 1998 by the judicial conduct advisory committee regarding the interpretation of this Rule (Exhibit 6). The Opinion discussed SCR 60.05(1) in relation to justices' involvement in a fund raising event. SCR 60.05(1) states in part that a judge shall conduct all of the judge's extra judicial activities so that they do none of the following: (a) cast reasonable doubt in the judge's capacity to act impartially as a judge.
The Opinion further discussed problems, namely an impression being given that there was a special or "cozy" relationship between the judge and other persons at a fund raiser. Regarding Justice Butler's appearance at the fund raising "Garden Party" and speaking in favor of LGBT equality, the impression would go far beyond the appearance of a cozy relationship. Can there be any legitimate debate concerning whether Justice Butler's appearance at the fund raising event avowing his support for LGBT equality drummed up additional funds from the partisan crowd. Additional funds were probably drummed up by the subsequent website posting of the photo of Justice Butler at the fund raiser, and his identification as a Wisconsin Supreme Court justice, and also the PAC endorsement website posting that touted his appearance at the fund raiser and his speech. As the opinion indicates if it is unethical for a judge to act in a comedy skit for non profit fund raiser, what is it for a sitting justice to appear as an attraction at an advocacy group's fund raiser. Justice Butler knowingly used the prestige of his office to assist the PAC in fund raising. By appearing at the fund raiser and by delivering his partisan speech, Justice Butler joined himself at the hip with the PAC, and consequently also to Action Wisconsin.
The PAC on January 22, 2008, seven days after oral argument on the Petitioner's case, endorsed Justice Butler, among other candidates, for the Wisconsin Supreme Court. Their endorsement noted "these candidates have a long history of advancing LGBT equality through legislation or support of current legislation that protects LGBT people. Each one has either voted in their position against the amendment to ban same-gender marriage or have spoken out on behalf of fair and equal treatment of LGBT families in Wisconsin" (Exhibit 3).
An additional PAC Internet posting in March of 2008 endorsing Justice Butler indicated: "PAC endorsed candidate support LGBT equality and the passage of legislation at the local, state, and federal level to protect LGBT people and their families. Each have committed to work towards this goal of equality for the LGBT community. Wisconsin Court Races. Justice Louis Butler - Wisconsin Supreme Court. Justice Butler is the only WI Supreme Court judge from Milwaukee and (sic) first African-American to serve on the highest Wisconsin court. This past summer, Justice Butler attended and spoke at the Center Advocates PAC Garden Party for Equality. Justice Butler spoke in support of LGBT equality and protection for LGBT people and their families." (Exhibit 4)
The PAC "Garden Party" was held on August 26, 2007. The "Garden Party" was obviously a hardcore intimate fund raising event. The PAC's website reporting on the event had color photos of supporters of the PAC, and additionally had a color photo of Justice Butler, in casual attire, addressing the attendees of the fund raiser. See http://www.hrl-pac.org/id53.html (Exhibit 5).
SCR 60.05(3)(c) 2.d. forbids a Supreme Court justice, in any capacity, from using or permitting the use of the prestige of the judicial office for fund raising. Petitioner has attached hereto a copy of Opinion 98-3 issued on February 19, 1998 by the judicial conduct advisory committee regarding the interpretation of this Rule (Exhibit 6). The Opinion discussed SCR 60.05(1) in relation to justices' involvement in a fund raising event. SCR 60.05(1) states in part that a judge shall conduct all of the judge's extra judicial activities so that they do none of the following: (a) cast reasonable doubt in the judge's capacity to act impartially as a judge.
The Opinion further discussed problems, namely an impression being given that there was a special or "cozy" relationship between the judge and other persons at a fund raiser. Regarding Justice Butler's appearance at the fund raising "Garden Party" and speaking in favor of LGBT equality, the impression would go far beyond the appearance of a cozy relationship. Can there be any legitimate debate concerning whether Justice Butler's appearance at the fund raising event avowing his support for LGBT equality drummed up additional funds from the partisan crowd. Additional funds were probably drummed up by the subsequent website posting of the photo of Justice Butler at the fund raiser, and his identification as a Wisconsin Supreme Court justice, and also the PAC endorsement website posting that touted his appearance at the fund raiser and his speech. As the opinion indicates if it is unethical for a judge to act in a comedy skit for non profit fund raiser, what is it for a sitting justice to appear as an attraction at an advocacy group's fund raiser. Justice Butler knowingly used the prestige of his office to assist the PAC in fund raising. By appearing at the fund raiser and by delivering his partisan speech, Justice Butler joined himself at the hip with the PAC, and consequently also to Action Wisconsin.
Justice Butler Interviewed By Jim Schneider Regarding Appearance At Garden Party And Delivering Partisan Speech Avowing Support For LGBT Equality.
On March 24, 2008, Justice Butler was interviewed by Jim Schneider, a radio host on WVCY America, a local radio station based in Milwaukee. The interview is available at http.//vcyamerica.org/index.php?option=com_content&task=view&id=125&Itemid=132. Mr. Schneider noted that the PAC fund raising event ("Garden Party") had raised $21,000 for the PAC and LGBT causes. Justice Butler never denied that he knew that the "Garden Party" was a fund raising event. Also Schneider referenced the PAC endorsement of Justice Butler, and confronted Justice Butler with the language of the website posting that Justice Butler had attended the PAC's "Garden Party" and spoke in support of LGBT equality. Justice Butler hesitated in his response, and indicated that he spoke at the event about his candidacy and that he didn't get involved in individual causes, but he never specifically denied that he spoke at this fund raising event in favor of LGBT equality. Finally Justice Butler told Schneider that he was not even aware of the endorsement until he was informed by Schneider in the interview, even though the endorsement had been issued on January 22, 2008. Subsequently Justice Butler voted to reverse the Court of Appeals' decision in the Petitioner's case, casting the deciding vote, and thereby advancing and promoting LGBT equality as he promised the PAC he would in August of 2007. See attached transcript of Question and Answer (Exhibit 7).
On March 24, 2008, Justice Butler was interviewed by Jim Schneider, a radio host on WVCY America, a local radio station based in Milwaukee. The interview is available at http.//vcyamerica.org/index.php?option=com_content&task=view&id=125&Itemid=132. Mr. Schneider noted that the PAC fund raising event ("Garden Party") had raised $21,000 for the PAC and LGBT causes. Justice Butler never denied that he knew that the "Garden Party" was a fund raising event. Also Schneider referenced the PAC endorsement of Justice Butler, and confronted Justice Butler with the language of the website posting that Justice Butler had attended the PAC's "Garden Party" and spoke in support of LGBT equality. Justice Butler hesitated in his response, and indicated that he spoke at the event about his candidacy and that he didn't get involved in individual causes, but he never specifically denied that he spoke at this fund raising event in favor of LGBT equality. Finally Justice Butler told Schneider that he was not even aware of the endorsement until he was informed by Schneider in the interview, even though the endorsement had been issued on January 22, 2008. Subsequently Justice Butler voted to reverse the Court of Appeals' decision in the Petitioner's case, casting the deciding vote, and thereby advancing and promoting LGBT equality as he promised the PAC he would in August of 2007. See attached transcript of Question and Answer (Exhibit 7).
Justice Butler's Responses To Fair Wisconsin (Action Wisconsin) Survey.
Fair Wisconsin (Action Wisconsin)posted an entry on their website March 31, 2008 indicating that they had sent surveys to Justice Butler and his opponent, Justice Gableman, and that only Justice Butler responded to their survey. They posted Justice Butler's responses to their survey (Exhibit 8).
Justice Butler answered the questions about why he wanted to be a Supreme Court justice, described his legal philosophy, and was asked the following question: "Surveys have shown that people who have friends or family who are lesbian, gay, bi-sexual, or trans-gender (LGBT) are more understanding of the prejudices LGBT people face and are less likely to accept negative stereotypes about LGBT people. Do you have any friends or family who are LGBT, and if so, has that relationship affected the way you see injustices facing the community?" Justice Butler responded, "Yes, but I respectfully decline to express an opinion on any issue where the Court may be required to rule." Trying to garner favor with the group by answering "yes" to the first part of the question, Justice Butler's response to the second part of the question confirms that he knew it would be improper to avow his support or favoritism for LGBT equality. This response verified that Justice Butler knew his speech at the fund raising "Garden Party" in support of LGBT equality was inappropriate and unethical.
Fair Wisconsin (Action Wisconsin)posted an entry on their website March 31, 2008 indicating that they had sent surveys to Justice Butler and his opponent, Justice Gableman, and that only Justice Butler responded to their survey. They posted Justice Butler's responses to their survey (Exhibit 8).
Justice Butler answered the questions about why he wanted to be a Supreme Court justice, described his legal philosophy, and was asked the following question: "Surveys have shown that people who have friends or family who are lesbian, gay, bi-sexual, or trans-gender (LGBT) are more understanding of the prejudices LGBT people face and are less likely to accept negative stereotypes about LGBT people. Do you have any friends or family who are LGBT, and if so, has that relationship affected the way you see injustices facing the community?" Justice Butler responded, "Yes, but I respectfully decline to express an opinion on any issue where the Court may be required to rule." Trying to garner favor with the group by answering "yes" to the first part of the question, Justice Butler's response to the second part of the question confirms that he knew it would be improper to avow his support or favoritism for LGBT equality. This response verified that Justice Butler knew his speech at the fund raising "Garden Party" in support of LGBT equality was inappropriate and unethical.
Interview With Glen Carlson, Fair Wisconsin's (Action Wisconsin's) Executive Director.
Glenn Carlson, Fair Wisconsin's (Action Wisconsin's) executive director, was interviewed by Quest, a Wisconsin gay news organization, in April of 2008, after Justice Butler was defeated in his election bid. In that interview, Carlson admitted Fair Wisconsin (Action Wisconsin) refrained from a formal endorsement of a candidate in the Supreme Court race(everyone knows if they had made a formal endorsement it would have been Justice Butler) because the Wisconsin Supreme Court had pending before it Petitioner's case, in which Fair Wisconsin (Action Wisconsin) was a party (Exhibit 9).
Glenn Carlson, Fair Wisconsin's (Action Wisconsin's) executive director, was interviewed by Quest, a Wisconsin gay news organization, in April of 2008, after Justice Butler was defeated in his election bid. In that interview, Carlson admitted Fair Wisconsin (Action Wisconsin) refrained from a formal endorsement of a candidate in the Supreme Court race(everyone knows if they had made a formal endorsement it would have been Justice Butler) because the Wisconsin Supreme Court had pending before it Petitioner's case, in which Fair Wisconsin (Action Wisconsin) was a party (Exhibit 9).
Endorsement Of Justice Butler By Attorney Tamara Packard, Attorney For Fair Wisconsin (Action Wisconsin) In Pending Lawsuit Against Petitioner, And Board Member Of Fair Wisconsin (Action Wisconsin).
However, Fair Wisconsin (Action Wisconsin) delivered Justice Butler their endorsement through the back door. Wisconsin Gay News from Quest, a Wisconsin gay publication, in its edition of March 25, 2008 featured an editorial by Attorney Tamara Packard entitled "Vote for Louis Butler on April 1. The Wisconsin Supreme Court needs a real judge, not a prosecutor". Attorney Packard urged the readers to vote for Justice Butler (Exhibit 10).
Attorney Packard is an attorney in the law firm of Cullen, Weston, Pines & Bach, the law firm representing Action Wisconsin (Fair Wisconsin) and Christopher Ott in the Petitioner's case. In fact Attorney Packard is the one who participated in preparation of the briefs in the Circuit Court, the briefs in the Court of Appeals and the Supreme Court, and conducted oral arguments in the Supreme Court before Justice Butler on January 15, 2008. Attorney Packard previously served on the Board of Directors of Action Wisconsin before they became Fair Wisconsin, was the immediate past president of the Board of Directors of Fair Wisconsin's education fund, and is on the Board of Directors of Fair Wisconsin. In addition to her personal ties to Action Wisconsin (Fair Wisconsin), Attorney Packard filed the motion requesting attorney's fees and costs from the Petitioner. Therefore Attorney Packard's firm would be receiving any attorney fees awarded by the Supreme Court's majority decision.
However, Fair Wisconsin (Action Wisconsin) delivered Justice Butler their endorsement through the back door. Wisconsin Gay News from Quest, a Wisconsin gay publication, in its edition of March 25, 2008 featured an editorial by Attorney Tamara Packard entitled "Vote for Louis Butler on April 1. The Wisconsin Supreme Court needs a real judge, not a prosecutor". Attorney Packard urged the readers to vote for Justice Butler (Exhibit 10).
Attorney Packard is an attorney in the law firm of Cullen, Weston, Pines & Bach, the law firm representing Action Wisconsin (Fair Wisconsin) and Christopher Ott in the Petitioner's case. In fact Attorney Packard is the one who participated in preparation of the briefs in the Circuit Court, the briefs in the Court of Appeals and the Supreme Court, and conducted oral arguments in the Supreme Court before Justice Butler on January 15, 2008. Attorney Packard previously served on the Board of Directors of Action Wisconsin before they became Fair Wisconsin, was the immediate past president of the Board of Directors of Fair Wisconsin's education fund, and is on the Board of Directors of Fair Wisconsin. In addition to her personal ties to Action Wisconsin (Fair Wisconsin), Attorney Packard filed the motion requesting attorney's fees and costs from the Petitioner. Therefore Attorney Packard's firm would be receiving any attorney fees awarded by the Supreme Court's majority decision.
Press Release Of Action Wisconsin
The press release of Action Wisconsin accusing Storms of advocating the murder of gays was issued on December 8, 2003. At that time the Wisconsin Defense of Marriage Amendment ("WIDOMA") (which was approved overwhelmingly by Wisconsin voters in November of 2006) was about to be introduced in the Wisconsin legislature. Action Wisconsin was aware of this, and referenced this introduction in their press release. Action Wisconsin in their press release, after alleging that Storms advocated the murder of gays in his speech, segued from that allegation to the following: "While conference participants are a clear threat to the security and freedom of the lesbian and gay communities, so too is the state constitution amendment that would codify us as second class citizens. They are both branches from the same tree of intolerance." . . . "When the assembly failed to override Governor Doyle's veto of AB475, Rep. Mark Gundrum (R-New Berlin) accused the governor of being ‘obsessed with the gay agenda', a charge often leveled by hate groups against anyone who supports tolerance. Recently Rep. Gundrum and Senator Scott Fitzgerald announced their intention to introduce yet more anti-gay legislation, this time a proposal to enshrine discrimination in the State's constitution. . . . We also hope that every legislator will think twice before supporting any more hate-inspired legislation."
It is quite obvious that Action Wisconsin, in issuing the press release, was using their false allegation that Storms advocated the murder of gays in an attempt to create a backlash against any legislator who would dare to support WIDOMA. Action Wisconsin used these false allegations against Grant Storms as a trump card to try to verbally intimidate ("enshrine discrimination in the State constitution", "each apparently advocating the murder of his own constituents", "hate inspired legislation", "both branches from the same tree of intolerance"), any legislator who would vote for WIDOMA (the act had to first pass the two legislative houses before being submitted to a referendum vote). In other words, Action Wisconsin was crying out for "LGBT equality", the same goal that Justice Butler avowed his support in his "Garden Party" speech.
Leaving aside the ethical propriety of a sitting Supreme Court justice addressing at an intimate fund raising affair supporters of a group advocating an agenda as controversial as same-sex marriage and pledging his support for their agenda, this conduct by Justice Butler and his failure to disclose to the Petitioner his personal bias on this issue, disqualified Justice Butler from participating in the Petitioner's case.
The Supreme Court has recognized that a court's judgment is void in a case where a participating justice is disqualified by law. Case v. Hoffman, 74 N.W. 220, 222 (Wis. 1898); Jackson v. Benson, 249 Wis.2d 681, 691, 639 N.W.2d 545, 549 (Wis. 2002). The court has recognized that both § 757.19(2) and case law establish a two step test for recusal. Namely an objective test and a subjective test. State v. Walberg, 109 Wis.2d 96, 106, 325 N.W.2d 687, 692. (Wis. 1982). The subjective test is satisfied when the justice in question determines he can be impartial when he participates in the case. Walberg, 109 Wis.2d at 106, 325 N.W.2d at 692-93. However, if the justice's impartiality can reasonably be questioned, therefore failing the objective test, the justice must recuse himself. Id.
It is quite obvious that Action Wisconsin, in issuing the press release, was using their false allegation that Storms advocated the murder of gays in an attempt to create a backlash against any legislator who would dare to support WIDOMA. Action Wisconsin used these false allegations against Grant Storms as a trump card to try to verbally intimidate ("enshrine discrimination in the State constitution", "each apparently advocating the murder of his own constituents", "hate inspired legislation", "both branches from the same tree of intolerance"), any legislator who would vote for WIDOMA (the act had to first pass the two legislative houses before being submitted to a referendum vote). In other words, Action Wisconsin was crying out for "LGBT equality", the same goal that Justice Butler avowed his support in his "Garden Party" speech.
Leaving aside the ethical propriety of a sitting Supreme Court justice addressing at an intimate fund raising affair supporters of a group advocating an agenda as controversial as same-sex marriage and pledging his support for their agenda, this conduct by Justice Butler and his failure to disclose to the Petitioner his personal bias on this issue, disqualified Justice Butler from participating in the Petitioner's case.
The Supreme Court has recognized that a court's judgment is void in a case where a participating justice is disqualified by law. Case v. Hoffman, 74 N.W. 220, 222 (Wis. 1898); Jackson v. Benson, 249 Wis.2d 681, 691, 639 N.W.2d 545, 549 (Wis. 2002). The court has recognized that both § 757.19(2) and case law establish a two step test for recusal. Namely an objective test and a subjective test. State v. Walberg, 109 Wis.2d 96, 106, 325 N.W.2d 687, 692. (Wis. 1982). The subjective test is satisfied when the justice in question determines he can be impartial when he participates in the case. Walberg, 109 Wis.2d at 106, 325 N.W.2d at 692-93. However, if the justice's impartiality can reasonably be questioned, therefore failing the objective test, the justice must recuse himself. Id.
Justice Butler Disqualified By Law Pursuant To Wisconsin Statute § 757.19(f) In Violation Of Supreme Court Rules.
Wisconsin Statute § 757.19 enumerates the factual situations that provide for disqualification of a judge, including a Supreme Court justice. Subsection (f) provides that a judge is disqualified if he or she has a significant financial or personal interest in the outcome of the matter. Subsection (3) provides that any disqualification that may occur under Subsection (2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.
SCR 60.03 provides that a judge shall respect and comply with the law, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. SCR 60.01(8) provides that judge includes a justice of the Supreme Court. The title of SCR 60.03 is "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities". Avoiding impropriety and the appearance of impropriety is linked to maintaining the public confidence in the integrity and impartiality of the judiciary. The comment section provides that the test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibility with integrity, impartiality, and competence is impaired.
Justice Butler's conduct is detailed above. His acceptance of serial contributions from a litigant after vowing not to do so, and his failure to disclose them to the Petitioner, is evidence of Justice Butler's financial interest in the Petitioner's case. Justice Butler avowing his support of LGBT equality at the PAC "Garden Party", and thereby garnering the subsequent endorsement of the PAC, shows not only his financial interest in Petitioner's case, but also Justice Butler's personal interest in the outcome of the Petitioner's case. Justice Butler closely aligned himself with the PAC, and there were numerous connections between Justice Butler and Action Wisconsin (Fair Wisconsin). Additionally the attorney for Action Wisconsin (Fair Wisconsin) who is intimately associated with them (since she has and did serve on the board of directors, and was the past president of the board of directors of the Education Fund) endorsed Justice Butler in a gay magazine Op Ed article. Her connections to Action Wisconsin (Fair Wisconsin) were specified at the conclusion of the article. The appearance of impropriety on the part of Justice Butler is palpable.
Wisconsin Statute § 757.19 enumerates the factual situations that provide for disqualification of a judge, including a Supreme Court justice. Subsection (f) provides that a judge is disqualified if he or she has a significant financial or personal interest in the outcome of the matter. Subsection (3) provides that any disqualification that may occur under Subsection (2) may be waived by agreement of all parties and the judge after full and complete disclosure on the record of the factors creating such disqualification.
SCR 60.03 provides that a judge shall respect and comply with the law, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. SCR 60.01(8) provides that judge includes a justice of the Supreme Court. The title of SCR 60.03 is "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities". Avoiding impropriety and the appearance of impropriety is linked to maintaining the public confidence in the integrity and impartiality of the judiciary. The comment section provides that the test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibility with integrity, impartiality, and competence is impaired.
Justice Butler's conduct is detailed above. His acceptance of serial contributions from a litigant after vowing not to do so, and his failure to disclose them to the Petitioner, is evidence of Justice Butler's financial interest in the Petitioner's case. Justice Butler avowing his support of LGBT equality at the PAC "Garden Party", and thereby garnering the subsequent endorsement of the PAC, shows not only his financial interest in Petitioner's case, but also Justice Butler's personal interest in the outcome of the Petitioner's case. Justice Butler closely aligned himself with the PAC, and there were numerous connections between Justice Butler and Action Wisconsin (Fair Wisconsin). Additionally the attorney for Action Wisconsin (Fair Wisconsin) who is intimately associated with them (since she has and did serve on the board of directors, and was the past president of the board of directors of the Education Fund) endorsed Justice Butler in a gay magazine Op Ed article. Her connections to Action Wisconsin (Fair Wisconsin) were specified at the conclusion of the article. The appearance of impropriety on the part of Justice Butler is palpable.
Conclusion.
Not only is Justice Butler disqualified in Petitioner's case pursuant to Section 757.19(f), but additionally his conduct violated SCR 60.03. Even after the judicial complaint was filed on March 28, 2008, Justice Butler still failed to disclose to the Petitioner the financial contributions from Action Wisconsin and that he had spoken at the "Garden Party" in favor of LGBT equality. One would hope in light of this compelling evidence that Justice Butler would recuse himself pursuant to the subjective test. However, if he refuses to do so, it appears that he has clearly failed the objective test, and should be disqualified by law. Restoration of public confidence in the impartiality of the decision in the Petitioner's case demands that Justice Butler be disqualified by law, and that a rehearing be granted, and Justice Butler not participate any further in this action. Otherwise, this Court will be answering the three questions at the beginning of this memorandum in the affirmative, which would send a disturbing message to the public regarding the ethical standards for future Supreme Court elections.
Respectfully submitted this _26th__ day of June, 2008.
James R. Donohoo, Appellant
(Petitioner), pro se
Respectfully submitted this _26th__ day of June, 2008.
James R. Donohoo, Appellant
(Petitioner), pro se
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