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    Wisconsin Lawyer
    May 14, 2008


    Letters to the Editor

    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 5, May 2008


    Letters to the editor: The Wisconsin Lawyer publishes as many letters in each issue as space permits. Please limit letters to 500 words; letters may be edited for length and clarity. Letters should address the issues, and not be a personal attack on others. Letters endorsing political candidates cannot be accepted. Please mail letters to " Letters to the Editor," Wisconsin Lawyer, P.O. Box 7158, Madison, WI 53707-7158, fax them to (608) 257-4343, or email them .

    Form Should Not Trump Substance

    Congratulations to the state plaintiffs' bar for presenting another translucent article on litigation strategy. In her March 2008 practice tips column, "The Greatest Set of Motions You've Never Heard Of," Ms. Mehl offers an excellent example of how attorneys seek to professionally screw the other guy and pass the savings on to you.

    Granted, a just and truly admitted claim should be adjudicated and enforced as efficiently as possible, but the author imagines only a defendant's "haphazard answer" pitted against a "strategy-minded plaintiff," and hopes that the court will not bother itself with considerations of justice - whether or not the debt is fair and truly admitted - despite the appellate court's warning of placing "form over substance" in its Styberg analysis.

    I might have benefited from an informative article on these motions, with strategies (both plaintiff and defense) to improve the professional practice of law and the efficient administration of justice. But this is not such an article.

    Nancy Sixel, River Falls

    Response. In the very limited scenarios described in my column, it is the defendant who initiated the situation. On the rare occasion when the defendant admits its debt, the statute itself demonstrates that quickly resolving these cases is the concept of justice that the legislators, the public, and the court value. As for the danger of valuing form over substance, the Styberg court's focus was determining how to equitably apply the statute given the circumstances, not whether it was equitable to apply the statute. In these cases, the substance is the admission.

    As the article was meant in part to be a cautionary tale for defendants, it did not focus on the defendant's perspective. As the trigger, the defendant is the only party that can prevent the applicability of section 806.03 by carefully pleading its defenses.

    Renee M. Mehl, Milwaukee

    Membership of Wisconsin Judicial Campaign Integrity Committee Was Not Impartial

    Putting aside my belief that the self-appointed Wisconsin Judicial Campaign Integrity Committee (WJCIC) was elitist and sanctimonious to begin with, it is now clear that President Basting's failure to ensure that the membership of the WJCIC was politically and philosophically balanced severely weakened its credibility (and that of the State Bar). Not only were seven of the eight original members of the committee former Democratic leaders, appointees of Gov. Doyle (who also appointed Justice Louis Butler), or Doyle contributors (including Basting himself), but one of the members had previously contributed to Justice Butler's previous campaign. So much for the appearance of impartiality!

    Any question of whether the WJCIC could be trusted by the Judge Michael Gableman campaign to be impartial was laid to rest when emails between the members were uncovered that made clear how they felt about the Gableman campaign. One member called a campaign staffer the "legitimate child" of a demon and another referred to the same staffer as a "skunk." The Gableman campaign also was referred to as stupid and paranoid by a member.

    President Basting's attempt to spin these comments as mere expressions of the members' First Amendment rights misses the mark. I highly doubt that if Mr. Basting were representing a client at a trial he would leave a potential juror on the jury who stated his belief that Mr. Basting's client was a scumbag but then went on to say that he could be fair. For the same reason, I believe Judge Gableman properly refused to acknowledge the WJCIC's objectivity during the campaign. While I admittedly was a volunteer for the Gableman campaign, I would hope that most fair-minded attorneys would agree with this decision.

    I also found highly offensive Mr. Basting's statement in a press release that any attorney who referred to Justice Butler as "Loophole Louie" could be subject to discipline under the Wisconsin Rules of Professional Conduct. Apparently the importance Mr. Basting attaches to the First Amendment doesn't apply here. While I certainly would not use this term myself in public (even though Justice Butler embraced it when he was a public defender), the suggestion that any attorney who used this "epithet" could be disciplined smacks of McCarthyism. Given the relatively light punishment attorneys seem to receive for committing even serious violations of the professional responsibility code, the suggestion is even more ludicrous.  It is too bad that there weren't any loopholes for those attorneys like myself who objected to our dues funding the WJCIC. The creation of the WJCIC is an excellent argument for a voluntary State Bar.

    In an email, a WJCIC staffer suggested that every candidate who had refused to sign a judicial campaign pledge had been defeated. Thanks to the WJCIC (and Judge Gableman's justifiable decision not to be browbeaten into signing the pledge), that streak has now been broken. Although admittedly it wasn't all lollipops and rainbows during the 2008 supreme court campaign, I believe it is the WJCIC that, in the words of one of its own members, deserves "a sharp poke in the slats."

    Gerald A. Urbik, Janesville

    Response. Mr. Urbik is entitled to his opinion, but he should at least attempt to get his facts straight.

    Rather than judge the WJCIC by what we have done, Mr. Urbik launches a misleading ad hominem attack on the WJCIC's members, who included a former Wisconsin governor, a retired judge from the Wisconsin Court of Appeals, three former gubernatorial cabinet members, and two respected academics.

    For example, one salient fact he appears totally ignorant of is that the WJCIC on at least four occasions publicly and vigorously defended Judge Gableman against unfair and misleading attacks by two traditionally liberal groups.

    Mr. Urbik further misleads by implying the WJCIC's members are politically aligned with incumbent Justice Louis Butler and Gov. Jim Doyle, who appointed Justice Butler to the supreme court. Like other critics, Mr. Urbik attempts to substantiate this claim with a passing reference to campaign donations WJCIC members have made to Gov. Doyle.

    Like other critics, what Mr. Urbik is obviously ignorant of are the many donations that I and other WJCIC members have made to former Republican Gov. Tommy G. Thompson and to many other prominent Republican leaders in Wisconsin. WJCIC members (and their spouses) have also sent checks to the campaigns of several former conservative supreme court candidates.

    Mr. Urbik also selectively quotes comments that were made by two WJCIC members regarding not Judge Gableman, but a campaign staffer employed by Judge Gableman. Those comments were made in private and in response to a patently false public statement about the WJCIC that was made by that very staffer. The remarks - never intended for public dissemination - were publicized by the Gableman staffer himself. The WJCIC's dismay at the disturbing behavior of the Gableman campaign was hardly unique; last month several dozen sitting Wisconsin judges publicly condemned that campaign's conduct.

    Mr. Urbik also misinforms by claiming the WJCIC is or will be funded by mandatory bar dues. I think it is highly unlikely the costs of the committee will be charged to bar dues; instead, they will be subject to a Keller deduction.

    All WJCIC members foreswore involvement in the 2008 supreme court campaign because we were united by a more important goal - preserving the integrity and neutrality of our state courts. The WJCIC and similar judicial campaign conduct committees around the country are answering the call of U.S. Supreme Court Justice Anthony Kennedy, who has called on the legal profession and the general public to exercise their First Amendment rights by protesting campaign statements inconsistent with standards of judicial neutrality and judicial excellence.

    Thomas J. Basting Jr., President
    State Bar of Wisconsin

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