Wisconsin
Lawyer
Vol. 81, No. 5, May
2008
Letters
Letters to the
editor: The Wisconsin Lawyer publishes as many letters in each
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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
Wisconsin
Lawyer