The State Bar's Judicial Task Force obtained board support for a constitutional amendment that would limit the terms of Wisconsin Supreme Court justices to one, 16-year term. Task Force members are, from left, Thomas Shriner, Christine Bremer Muggli, Catherine Rottier, and Joseph Troy (chair).
Joe Troy (right) with other Judicial Task Force members seeking support for its proposal to help improve the public's confidence in the courts.
From left, State Bar President-elect Robert Gagan, current State Bar President Patrick Fiedler, and State Bar Past-president Kevin Klein attend day one of the Board's two-day meeting in Trego.
Sherry Coley, chairperson of the State Bar's Board of Governors, begins discussions with a brief overview of meeting rules.
U.W. Law Professor Marsha Mansfield, a member of the Wisconsin Access to Justice Commission (ATJ), updates the board on an ATJ petition that would amend Wisconsin's Code of Judicial Conduct with respect to self-represented litigants.
Toni Caldwell, an attorney for the Menominee Indian Tribe of Wisconsin, attends the board meeting as a representative of the State Bar's Indian Law Section.
Sept. 28, 2013 – The State Bar of Wisconsin’s Board of Governors voted today (37-4) to support a proposal that would limit the terms of Wisconsin Supreme Court justices to one, 16-year term, a plan advanced by the State Bar’s Judicial Task Force.
Yesterday in Trego, board members peppered the four-member task force with questions about the proposal, laid out in a 17-page report, and this morning voted almost unanimously to support the plan.
The proposed change, the report states, will retain the right to vote but “engender greater public confidence in the court’s ability to pursue justice independently of political influence.”
In 2011, former State Bar President Jim Brennan (2011-12) appointed attorneys Joe Troy (chair), Christine Bremer Muggli, Catherine Rottier, and Thomas Shriner as task force members and asked them to study the issue of public confidence in the courts.
At the time, Brennan noted polls that indicated waning public confidence in the courts, in part because of increased campaign spending on judicial elections.
Currently, the people elect justices to 10-year terms, with no limit on the number of terms that can be served. The current system weighs on public confidence in the judicial branch, Troy said, because it requires justices to be political candidates every 10 years.
Limiting justices to one term would insulate incumbent justices from politically charged campaigns supported by campaign spending that has skyrocketed in recent years, the task force (and now the board) believes.
Changing term limits of supreme court justices would require an amendment to the Wisconsin Constitution (Art. VII, § 4), with approval by two consecutive legislatures. Board support now guides the bar’s lobbying efforts in upcoming legislative sessions.
Why 16 Years?
A single, 16-year term will attract highly qualified lawyers and judges who can influence the development of Wisconsin’s law. But it does not force potential justices to campaign more than once, and it does not create life tenure, the task force explained.
“Life terms can insulate justices from politics, but life terms come with their own problems,” Troy said in a previous interview. “We aimed for a shorter period, consistent with average terms, which would still have the effect of insulating justices.”
More than 80 percent of all Wisconsin Supreme Court justices have served 16 years or less, averaging 13-14 years in the last half-century, Shriner noted.
“We want to create a situation in which serving as a justice would be the capstone of a lawyers’ or judges’ career,” Shriner said, “but stop requiring them to sit for reelection.”
For those who questioned whether 16 years is too long, and justices should be subject to the people’s will every 10 years, Shriner pointed out that only one incumbent justice has lost a reelection bid in the last 90 years under the current system.
Chief Justice George Currie (1951-68) lost his reelection in 1967, after he supported a majority decision that allowed the Milwaukee Braves to leave town.
“It just doesn’t happen,” Shriner said.
Why Not Appoint Judges?
Twenty-three states and the District of Columbia use a merit selection system to appoint justices to the state’s highest court, including Iowa and Indiana. Why not Wisconsin?
In the view of the task force, Wisconsin has demonstrated time and again that it highly values the right to vote, so such a sweeping change would be politically infeasible. Polling in 2011 showed that 70 percent of the respondents want to elect justices.
“Merit selection has been debated for a long time in Wisconsin, and it has been soundly rejected every time,” Bremer Muggli said.
In addition, merit selection does not remove the element of elections and campaigns, because most appointed judges must sit for retention elections, Bremer Muggli said.
“There is big money in retention elections too, as evidenced in Iowa recently,” Bremer Muggli noted. “Big money came in and colored those elections, and it was a horrible experience. We decided to come up with a unique way, a Wisconsin way.”
But if campaign spending is the root of the problem, why not champion campaign finance reform? “Campaign financing laws are largely driven by the U.S. Supreme Court’s interpretation of the First Amendment, and there’s nothing that any state can do that is contrary to those U.S. Supreme Court decisions,” Troy pointed out.
Proposal Leaves Other Processes in Place
The judicial task force proposal does not change other constitutional aspects relating to supreme court justices. For instance, the state governor would still have appointment power to fill vacancies, and appointed justices would still face a general election.
In addition, the task force expects that over time, there would generally be two or three years between each election, because the state constitution allows just one election for a supreme court justice in a given year, and filling expired seats takes precedence.
Also, current justices who face reelection after any amendment takes effect, which would not be possible until 2016, would remain free to run for a final 16-year term.
A Uniquely Wisconsin Idea
No other state has a system like the one proposed by the task force. Most states appoint justices (and have retention elections) or elect them through partisan or non-partisan elections for 6-12 year terms, with an opportunity for reelection.
“We want justices that once elected, can spend that time fully addressing the law," Catherine Rottier told the board yesterday. "This may well be the ticket. This plan is politically neutral and feasible. It isn’t perfect, but please don’t let perfect be the enemy of the very, very good."
Other Board Business
Attorney Marsha Mansfield, a U.W. law professor and member of the Wisconsin Access to Justice Commission (ATJ), updated the board on a petition that would amend the Wisconsin Code of Judicial Conduct as it relates to self-represented litigants.
Unlike some other states' judicial codes, Wisconsin's rules do not explicitly address ethical standards for adjudicating cases with self-represented litigants, and the ATJ belives that "now is the time to propose such an amendment."
The ATJ Commission has submitted a petition to the Wisconsin Supreme Court (Petition 13-14), which makes clear that "'reasonable efforts to facilitate the ability of all litigants, including self-represented litigants, to be fairly heard' are consistent with a judge's obligation to perform all judicial duties fairly and impartially."
The board approved State Bar President Patrick Fiedler's appointment of members to the State Bar's Nomination Committee, which nominates candidates for State Bar leadership positions, including State Bar president. Nomination committee members are: R. George Burnett; Michelle Behnke; Jennifer Stuber; Kelli Thompson, and Ave Bie.