Vol. 76, No. 11, November 2003

Ruling by Moral Force

by George Burnett

On Sept. 10, 2003, the Wall Street Journal published an editorial criticizing a recent decision of our Wisconsin Supreme Court as politically motivated. The decision, Trinity Evangelical Lutheran Church and School-Freistadt v. Tower Ins. Co. (2003 WI 46), raised the difficult question of punitive damages and their constitutionality. Anyone reading the case understands the question is a difficult and controversial one, one on which reasonable minds can disagree. Anyone reading the case also knows that however difficult the issue, political views played no role in our court's decision.

Under the headline "Punitive, Schmunitive" the Journal wrote:

"A high point of the Supreme Court's last term was its 6-3 decision to draw the line on outrageous punitive-damages awards. But a large section of the nation's plaintiffs' bar and even some judges have been working hard ever since to undermine the ruling.

"To the shock and awe of the tort bar, the Court held in State Farm v. Campbell that excessive punitive-damages awards violated the Constitutional guarantee of due process.

...

"Within a month, the Wisconsin Supreme Court took it upon itself to redefine compensatory damages in a way that guts the ruling. In 1995, a teacher for Trinity Evangelical Lutheran Church was involved in a $490,000 car accident. Tower Insurance refused to pay the bills for three years because of a dispute over coverage. Midway through litigation, Tower reversed its position and paid the claim, as well as $17,000 in compensatory damages for the church's legal fees.

"But Trinity pressed on for a punitive award and a jury ultimately hit Tower with one for $3.5 million - 200 times the $17,000 in actual damages. The case was appealed up to the Wisconsin Supreme Court, which ruled that the 'compensatory' damages should also include the $490,000 accident bill. Presto, the ratio was 7 to 1 - therefore creatively constitutional.

"And that's just the beginning of the fuzzy math."

* * * * *

It is without doubt the prerogative, indeed the responsibility, of our press to analyze and question important public events. The public acts of public officials deserve careful scrutiny. Judicial decisions merit no exception. Without doubt, important opinion-shapers, like the Wall Street Journal, serve an important role in our democracy.

But opinion shapers perform a great disservice when they disguise their criticism of judicial policy by ascribing to judges motivations that should be reserved for political partisans. Nothing will erode the confidence of the citizenry in our judiciary faster than to ascribe political motives to judicial decisions.

To read the editorial, one is left with the impression that our supreme court's decision was politically motivated, the product of a determined effort to undermine the authority of the U.S. Supreme Court and the result of irresponsible reasoning.

The founders of this great country recognized the importance of an independent judiciary. They also recognized that, unlike partisan politicians, judges cannot debate their critics publicly. Courts and judges must speak through their opinions and say no more.

Lately, the wisdom of judges and the common sense of juries have been under increasing attack. Some would drastically change those great institutions altogether.

But the organized bar knows better. We recognize that it is only in the third branch of government where a citizen possesses the right to address his or her government directly. We know that De Tocqueville's observation that courts rule by "moral force" is as true today as it was almost 200 years ago when he made it. We understand that there is no more effective means to undermine the authority of our courts than to attack the moral force that the institution has earned.

When assaults on the judicial branch of government occur, it is the role of the organized bar to address them. If the organized bar stands for anything, it is for the defense of the judicial branch of government.

Wisconsin Lawyer