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December 4, 2009

Look Out for 'Loophole Louie'

By

Most Americans have never heard of a Wisconsin judge named Louis Butler. A look at his liberal record, though, would show them why he's known as "Loophole Louie" -- and why Wisconsin voters have rejected him not once, but twice.

Which raises the question: Why has President Obama nominated Butler to a lifetime position on the federal district court for the Western District of Wisconsin? His record while on the state's Supreme Court includes troublesome decisions that expanded the rights of criminal defendants and the scope of business liability.

That record can be explained by how Butler views the work of the Wisconsin Supreme Court. In a newspaper interview, he said that the court is a "law-development court," not an "error-correcting court." The problems associated with the process of "law development" raise grave concerns regarding Butler's nomination to a lifetime judicial appointment.

Take Wisconsin v. Knapp. Butler wrote a majority opinion that held that the Wisconsin Constitution required the suppression of a bloody sweatshirt that linked Matthew Knapp to a brutal murder. Why? Because the police had questioned Knapp in his apartment without first having given him Miranda warnings.

It's one thing to suppress a statement because Miranda warnings weren't given; it's quite another to hold physical evidence inadmissible. The U.S. Supreme Court said as much when it held that virtually identical provisions of the U.S. Constitution did not require the suppression of the physical evidence in those circumstances.

Butler also joined in a concurring opinion in Knapp, written to "emphasize" how the court's decision served "to reaffirm Wisconsin's position in the 'new federalism' movement." That movement, which Supreme Court Justice William Brennan famously endorsed in 1977, calls on state courts to "decline to follow federal precedent they found 'unconvincing, even where the state and federal constitutions are similarly or identically phrased.'" As the decision in Knapp shows, "new federalism" frequently amounts to judges decreeing expansive, liberal rules that favor the interest of criminal defendants over the legitimate interests of law enforcement.

Similarly, in Wisconsin v. Dubose, Butler joined a decision limiting the admissibility of evidence derived from out-of-court "show-up identifications," in which a suspect is presented singly to a witness for identification purposes. As with many such show-up identifications, Timothy Hiltsley identified Dubose as the robber, citing his build and hairstyle, within minutes after he was robbed at gunpoint. Before the court's ruling, Wisconsin law, which, was based on a U.S. Supreme Court decision, made the results of such an identification procedure admissible as long as the show-up wasn't unnecessarily suggestive.

In Dubose, though, the court started by pointing to the extensive studies of eyewitness identification that had come out since 1995. Those studies, the court contended, cast doubt on the general reliability of eyewitness identifications. In so doing, the court acknowledged that it "based" its "approach" on the recommendations of the Wisconsin Innocence Project, an advocacy group that has attacked the use of confessions and eyewitness identifications in criminal trials.

A dissenting judge pointed to the problem with the court's reasoning, "It is not the function of this court to create what it considers to be good social policy based on data from social science 'studies.' That is the province of the legislature."

Butler also wrote troublesome decisions in civil cases. Consider his majority opinion in Thomas v. Mallet. There's a provision in the Wisconsin Constitution that states, "Every person is entitled to a certain remedy in the law for all injuries ...". According to Butler, this relieved a plaintiff from the obligation to identify which manufacturer produced the paint which the claimant ingested. He rejected the complaint that this provision, which standing alone creates no rights, could not be applied consistently. He added that while the complaint had "facial appeal, the goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing."

A dissenting judge explained that the court's decision meant that the lead pigment manufacturers could be liable "for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market." In addition, the plaintiff could prevail without showing that his lead poisoning was caused by white lead carbonate, much less whether one of the defendants made it or when it was made or applied to a house in which he was allegedly poisoned. None of that mattered to Butler, who was busy contorting the common law to reach a desired outcome.

Judicial elections provide voters with a way of holding judges accountable for their performance. The voters of Wisconsin did precisely that when a majority of them voted against him in 2000 and again in early 2008. In his first run, he failed to unseat the incumbent, Diane Sykes, who has since been appointed to the Seventh Circuit Court of Appeals. In the second, Wisconsin voters who knew of his record declined to elect him to a term in his own right. Even with the support of the public employee unions, the tort plaintiff trial bar, and Indian casinos, he lost 51.2 percent to 48.5 percent -- in a state that President Obama carried later that same year by nearly 14 points!

Now, the Obama administration wants to give Butler a lifetime appointment. The Senate should ask itself why Butler, who was twice rejected by the voters of Wisconsin, deserves this position. It should, likewise, consider the troublesome decisions he wrote or joined as part of his "law-development" function, before vesting him with even more power

Jack Park is a Visiting Legal Fellow in the Center for Legal & Judicial Studies at The Heritage Foundation.

First Appeared in Human Events

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