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Wisconsin Supreme Court justices tend to favor attorney donors

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Jake Harper/Wisconsin Center for Investigative Journalism
October 20, 2013

In January 2009, Milwaukee area attorney Mark Thomsen donated $5,000 to a Wisconsin official's political campaign. Thomsen soon sent an additional $500 just eight days before the official cast a key vote on an insurance issue that greatly affected Thomsen and his clients.

The public official's vote was not in the state Assembly, or the state Senate. It was in the state's highest court.

When the Wisconsin Supreme Court decision came down in Thomsen's favor, the majority included the recipient of Thomsen's money: Chief Justice Shirley Abrahamson.

Abrahamson, in fact, is the top recipient of support from attorneys whose cases reach the Supreme Court, pulling in $188,650 over the past 11 years, a Wisconsin Center for Investigative Journalism analysis shows.

Those attorneys contributed a total of $210,750 to current justices, either before or after their cases were heard, from July 2002 through June 2013. Fifty-six percent of these contributions came in before the court's rulings.

And as happened after Thomsen's donations, the analysis found, justices tend to rule in favor of clients whose attorneys contribute to the justices' election campaigns.

In instances where a contribution came in before a case was decided, justices favored those attorneys' clients 59 percent of the time.

The Center's analysis showed that the more money Abrahamson received from donor attorneys, the more likely she was to vote in favor of their position. Fifty-eight percent of her rulings sided with contributors overall, while the figure was 71 percent for cases in which a lawyer donated $1,500 or more to her campaign.

Joe Heim, political science professor at the University of Wisconsin-La Crosse, said that the Center's findings suggest a possible problem because “the taint of — or at least the appearance of — the influence of campaign contributions can damage the image of the courts as a neutral and unbiased branch of government.”

Adam Skaggs, senior counsel at the Brennan Center for Justice, a national group that supports public financing of judicial elections, said that “the prevalence of lawyer contributions definitely raises questions.”

“I think the vast majority of judges are not going to be influenced by contributions, but the public is still going to think that there could be influence,” Skaggs added.

Mike McCabe, executive director of the Wisconsin Democracy Campaign, a nonpartisan watchdog group, echoed that view.

“Any research that shows a correlation between donations and a justice's decision on a case is only going to create greater concern among members of the public,” McCabe said. “I don't know what could possibly be worse for the Supreme Court than the impression that justice has been bought.”

Justices have the option of recusing themselves from cases involving donor attorneys but have rarely stepped aside, remaining involved in nearly 98 percent of such cases, the Center found.

Abrahamson did not respond to interview requests. But when asked specifically about her status as the court's leading recipient of donations from attorneys with cases before the court, and the larger issue of recusal, Abrahamson wrote in an email: “(A) judge makes a recusal decision in each case taking into consideration all the particular circumstances involved.”

'THERE IS NO CORRELATION'

The issue of campaign donations to state Supreme Court candidates has sparked bitter division on the court. The court's conservative majority has rejected efforts to tighten the rules for when justices must withdraw from a case.

Abrahamson, usually associated with the court's liberal bloc, has proposed that an outside body determine when justices should withdraw from a case involving a conflict of interest.

In Thomsen's insurance case, he represented clients, including Heritage Farms Inc., that lost 572 acres of land to a fire caused by an out-of-control burn pile on a Marquette County campground. The high court held in 2009 that Thomsen's clients were eligible for attorney fees and double damages.

When the issue came before the high court a second time, Abrahamson in 2012 again sided with the majority in favor of Thomsen's clients.

Thomsen did not respond to requests for comment.

Besides Abrahamson, justices tending to side with donor attorneys were Annette Ziegler, who took in $8,300 from attorneys with cases that came before the court; Patience Roggensack, who accepted $7,966; Ann Walsh Bradley, with $3,260; and David Prosser, who took in just $225.

Justice Michael Gableman, who accepted $2,350 from such attorneys, did not make that list, having sided with his donors' clients in exactly half of four cases.

The remaining justice on the seven-member court, Patrick Crooks, was not included in the Center's analysis. Crooks, who ran unopposed and took in very little money in his 2006 election, was not required to file electronic campaign finance records.

Abrahamson chose to remain involved in two cases argued by personal injury lawyer William Cannon, a colleague of Mark Thomsen who made four donations totaling $7,000 to Abrahamson's 2009 campaign.

Two of Cannon's cases, a product liability case and a medical malpractice suit, were decided by the court after he donated the money. Attorneys working with Cannon on the cases, including Thomsen, contributed an additional $21,150 to Abrahamson.

Abrahamson sided with Cannon's clients in both suits, as she had on four previous cases.

Cannon, asked about the contributions to Abrahamson and the rulings in his clients' favor, responded indignantly. “You sound so stupid,” he said. “There is no correlation. That's an absolute lie.”

Justice Roggensack, often seen as a member of the court's conservative bloc, offered a more diplomatic critique of the Center's findings.

“It makes the court sound bought and paid for, and I don't think that's why the contributions come in,” Roggensack said in an interview.

Like several people interviewed for this report, Roggensack said that contributions to justices have more to do with shared viewpoints, rather than attempts to change justices' votes: “People support me based on their view that (my) philosophy is appropriate for the job that I hold.”

Wisconsin's justices have faced concerns over their relationships with attorneys before.

In 2011, Gableman cast a deciding vote in two cases being argued by attorneys from Michael Best & Friedrich, a firm that had represented Gableman for free in a 2008 ethics case.

The same year, Prosser was criticized for planning to participate in a case involving the Troupis Law Office, which helped handle Prosser's recount effort in the 2011 election. He eventually withdrew.

In 2008, the League of Women Voters of Wisconsin asked the state's Supreme Court to adopt a standard requiring recusal in any case involving a contributor of $1,000 or more.

Instead, the court's conservative majority chose rules written by lobbying groups Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association stating that “the receipt of a lawful campaign contribution shall not, by itself, warrant judicial recusal.”

Justice Bradley, joined by Crooks and Abrahamson, issued a forceful dissent: “There can be no doubt that the actions of the majority have substantially undermined the public trust and confidence in the judiciary's impartiality.”

“Wisconsin is out of step with other states and with the feds in regard to our standard,” Crooks said in an interview. “I didn't think we should have outside groups and organizations writing provisions of our judicial code for us.”

Jake Harper is a Madison-based freelance journalist. He may be reached at jharper@wisconsinwatch.org

This project was supported by The Joyce Foundation. The nonprofit Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org) collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication.

All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.



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