Vol. 76, No. 11, November
2003
Ruling by Moral Force
When others seek to undermine the authority of our courts by
attacking the institution's moral force, the organized bar must rise to
defend the judicial branch of government.
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