The Continuing Deterioration of Wisconsin’s Judicial System - Part Two
Circuit Court Judge Gregory Gill, Jr.’s recent electoral victory for a seat on the Wisconsin Court of Appeals demonstrates why enacting basic court reforms in the state remains an elusive task.
For more than a decade now, monied interests have targeted judicial campaigns in Wisconsin with impunity. As United States District Court Judge Lynn Adelman recounted in a 2017 law review article about the increased influence of financial contributions in Wisconsin elections, an unprecedented amount of money was spent in the 2007 Wisconsin Supreme Court race—where then-Washington County Circuit Court Annette Ziegler ultimately prevailed. Since then, the amount of money spent on state supreme court races in Wisconsin has only increased. For example, the candidates in the 2019 general election for the Wisconsin Supreme Court each raised more than $1.5 million for their respective campaigns. And while not as grotesque as the amount of money spent on state supreme court races in recent years, even local judicial elections for county circuit court in Wisconsin can also involve candidates raising and spending thousands of dollars.
A candidate’s relative merit (vis-à-vis an opposing candidate) does not necessarily correlate with electoral success due to the outsized influence of private interests in Wisconsin judicial elections. And when a judicial candidate is successful, they will then likely be influenced down the road—unconsciously or not—by the campaign contributions they received on the road to victory. So, it’s not surprising that many judicial candidates in Wisconsin, representing diverse jurisprudential views—ostensibly running for nonpartisan judicial positions—now receive assistance from partisan political parties, or give speeches before members of partisan political parties, such as at the Wisconsin Democratic Party convention and Wisconsin Republican Party convention.
However, many judicial candidates in Wisconsin supplement the large amount of campaign contributions they receive from outside with contributions of their own. With no legal limits on how much a state candidate may contribute to their own campaign in Wisconsin, affluent candidates have a substantial advantage over their less endowed opponents.
The following examples illustrate the substantial built-in advantage opulent judicial candidates have against their electoral opponents when they are unrestricted from making unlimited contributions to their own campaigns.
For instance, some judicial candidates in Wisconsin—including incumbent judges—make large contributions to their own campaigns in order to, at least in part, deter other potential candidates from attempting to challenge their respective judicial candidacies. After first appointing being appointed to the state appellate court bench by then-Governor Scott Walker in late 2014, Wisconsin Court of Appeals—District Three Judge Thomas Hruz embraced this strategy when he ran unopposed in 2016—personally loaning $70,000 to his own campaign committee, and then having his campaign turn around to spend $5,000 of that amount on consulting services. But such a tactic is not limited to judicial candidates with politically (or jurisprudentially) conservative backgrounds.
On the other side of the jurisprudential spectrum there is Wisconsin Court of Appeals—District Four Judge Rachel Graham, who was appointed to the bench in 2019 by Governor Anthony Evers. Prior to her judicial appointment, she served for several years as a judicial law clerk to Wisconsin Supreme Court Justice Ann Walsh Bradley, whom Judge Graham openly admires for her legal acumen. And just like Judge Hruz in 2016, Judge Graham made large contributions to her own campaign when running unopposed in 2020—personally loaning more than $10,000 to her own campaign committee.
However, unlike him, Judge Graham also received nearly $30,000 in campaign contributions from other people—including Wisconsin Court of Appeals judges such as Lisa Neubauer; Brian Blanchard; Jennifer Nashold; and M. Joseph Donald, who has publicly conveyed support for other judicial candidates who embrace “progressive values.” Additionally, in contrast to Judge Hruz’s campaign strategy of greatly restricting his campaign spending unless needed to fend off a definite electoral opponent, she decided to spend almost the entire amount she raised—even though she had no opponent in sight. According to her campaign committee’s finance reports, Judge Graham shelled out almost $25,000 for consulting services from the now-defunct Scott Spector Strategies, which was founded in 2019 by its namesake, a former lobbyist who later served as United States Senator Tammy Baldwin’s campaign manager for her 2016 reelection bid; paid herself $7,500 for partial reimbursement of the personal loans she had made earlier to the campaign; and even expended $500 on an election night campaign party held in mid-January 2020 at the Rigby Pub, a Beatles-themed tavern situated just off the capitol square in Madison, Wisconsin—only days after she was officially running for election unopposed, but still months until the 2020 spring general election would take place.
Even at the county circuit court level in Wisconsin, many judicial candidates running unopposed in the past decade have made large contributions to their own campaigns in the same vein. Consider just these examples from candidates running for judgeships on the Dane County Circuit Court.
When Dane County Circuit Court Josann Reynolds ran unopposed in 2015, after first being appointed to the bench in 2014, her campaign committee’s finance reports show that she personally loaned $20,000 to her campaign committee. Her campaign also received an additional $3,000 from Andrew Boszhardt, a New York City-based financial executive who obtained a master’s of business administration degree from the University of Wisconsin—Madison. And of the approximately $27,000 that Judge Reynolds raised by the end of the campaign, she paid $16,500 to Melissa Mulliken, an experienced political consultant who has helped advise more than 20 judicial campaigns in Wisconsin since the mid-1990s, for her consultancy services.
Similarly, when Dane County Circuit Court Judge Judge Valerie Bailey-Rihn ran unopposed in the 2016, her campaign committee’s finance reports show that she personally loaned $38,000 to her campaign committee. In addition, just like Judge Reynolds did the year before, Judge Bailey-Rihn hired Mulliken as a political consultant. In fact, of the more than $44,000 that Judge Bailey-Rihn ultimately raised over the course of the campaign, she dispersed more than 95 percent of it to Mulliken.
When Judge John Hyland also ran unopposed in 2016, his campaign committee’s finance reports show that he personally loaned more than $22,000 to his campaign committee. And of the more than $28,000 that Judge Hyland raised during the campaign, he paid $22,000 to Integrated Political Solutions for serving as his campaign manager. Presumably, Judge Hyland’s payment ended up in the possession of Alan Furnas, who is listed as that entity’s agent and, apparently, has a history of working as a campaign manager in Wisconsin. (Disclosure: I previously served as a staff attorney at the Dane County Circuit Court—and Judge Hyland was one of four judges who supervised me while I served in that support role.)
With substantial financial sums like these hovering over local judicial elections in Wisconsin, no wonder why many highly qualified and competent judicial candidates in the state don’t even bother attempting to make a run for public office. They preemptively dissuade themselves of the possibility of any chance of succeeding on a more limited campaign budget. As Dane County Circuit Court Judge Mario White told the Isthmus magazine back in 2017, when he was still working as a state public defender in Wisconsin, “I do wish there was a better way for qualified people [such as myself] to run [for judicial office in Wisconsin] so it isn’t always about who has the most money.” Fortunately, and without financial backing from others (rich or not), Judge White’s unbridled tenacity and perseverance eventually lead him to his (relatively) recent appointment to the bench by Governor Evers in the early summer of 2020.
However, in the few instances of when a judicial candidate’s campaign tactic of making large contributions to his or her own campaign doesn’t successfully deter other potential candidates from attempting to challenge their candidacy, it can result in an outrageous amount of money being raised and spent by the judicial candidates. In such a situation, each candidate is simply trying to persevere longer than the other one, and ultimately survive the grueling gauntlet they have accidentally constructed for themselves, which requires them to now solicit greenbacks from wealthy and politically connected individuals ad infinitum.
A paradigmatic example involves the 2017 spring election between now-Wisconsin Labor and Industry Review Commissioner Marilyn Townsend, who at the time of the race was a private attorney and municipal court judge, and now-Wisconsin Supreme Court Justice Jill Karofsky, a former Dane County prosecutor and executive director of the Wisconsin Department of Justice’s Office of Crime Victim Services, for a judgeship on the Dane County Circuit Court. (Disclosure: During my last semester of law school in 2015, I was a legal extern at the Wisconsin Department of Justice—Criminal Appeals Unit, when Justice Karofsky was serving as the executive director of the Wisconsin Department of Justice’s Office of Crime Victim Services.)
In early May 2016, each of the two candidates formally registered their respective campaign committees with the Wisconsin Ethics Commission. And a spending spree between them quickly escalated, spiraling out of control.
For instance, Townsend’s campaign committee finance reports show that she personally loaned more than $10,000 to her campaign during its first months—and by the end of it, she had personally loaned more than $65,000 to her campaign. In total, Townsend raised more than $125,000 over the course of the campaign. In addition, she spent more than $65,000 on television advertisements; and she also paid $18,000 to Integrated Political Solutions for its consultancy services.
However, Karofsky was undeterred by Townsend’s substantial campaign fundraising haul. With regard to personal donations to their respective campaigns, Karofsky decided to decisively up the ante. According to Karofsky’s campaign committee finance reports, at the inception of her campaign she personally loaned it $38,000—and by the end of the campaign, she had personally loaned it more than $165,000. In total, Karofsky raised more than $210,000 during the campaign. Additionally, she spent more than $80,000 on television advertisements; and she also paid more than $105,000 to Mulliken, the perennial political consultant hired by numerous judicial candidates in Wisconsin, for her consultancy services.
With such a wealthy group of jurists in Wisconsin receiving large amounts of campaign contributions from themselves—and other people like themselves—it becomes clear why many of them uncritically endorse one another’s candidacies.
As Judge Graham’s and Judge Donald’s eventual endorsement of Outagamie County Circuit Court Judge Gregory Gill, Jr.’s candidacy for the Wisconsin Court of Appeals illustrates, some of these judicial endorsements cannot be justified on the basis of political ideology or jurisprudential views. For reasons that will later become apparent, those two candidates’ judicial endorsements of Judge Gill, Jr., can only be explained on the basis that they subjectively believed their endorsements were in their own future electoral self-interest; like many other judicial candidates in Wisconsin, they had to come to understand the powerful—albeit inappropriate and unfortunate—role that a person’s individual political and social connections occupies in the process of selecting judges at not only the federal level, but at the state level as well, including Wisconsin’s court system.
For too many judges in Wisconsin—including Judge Graham and Judge Donald, it appears—it’s more important for them to be continually elected than to aspire to champion the rousing ideals underpinning Wisconsin’s longstanding nonpartisan judiciary. This phenomenon explains why endorsements flow freely from one judicial candidate to another on a regular basis in Wisconsin—and why many of those endorsements are inconsistent with the candidates’ own publicly pronounced jurisprudential or political views.
It also explains why there remains a severe lack of public accountability for much of the judicial misconduct committed by members of the Wisconsin judiciary—including not only the acts of serious judicial misconducted committed by David Prosser, Jr., a former justice on the Wisconsin Supreme Court, but those committed by other judicial officials, including Michael Gableman, a former Wisconsin Supreme Court justice. While never formally reprimanded for his conduct due to a deadlocked state supreme court, Gableman clearly violated Wisconsin Supreme Court rules proscribing judicial candidates from intentionally making factual misrepresentations about an opponent, when he ran “a sleazy, racially charged ad” during the 2008 spring election against then-Wisconsin Supreme Court Justice Louis Butler, the first African American to serve on Wisconsin’s highest court, falsely informing eligible voters in Wisconsin that Justice Butler’s past legal representation of a criminal defendant directly resulted in the defendant committing another crime.
In much (if not all) of the United States, citizens are basically governed by the wealthy and politically powerful; which generally results in citizens of modest means—and with no political connections—effectively having little, if any, discernable affect on what policies a government entity decides to effectuate. As a 2014 study conducted by Benjamin Page, a professor of decision making at Northwestern University, and Martin Gilens, a professor of public policy at the University of California, Los Angeles and former professor of politics at Princeton University, ultimately finds: “economic elites and organized groups representing business interests [in the United States] have substantial independent impacts on [United States] government policy, while mass-based interest groups and average citizens have little or no independent influence.” Ezra Klein,a columnist for the New York Times and former editor-in-chief of Vox, has characterized such a scenario—in which wealthy individuals leverage their economic power to increase their political power, and use that resulting increase in political power to a further increase and reinforce their existing economic power—as an oligarchic feedback loop.
It’s no surprise, then, that Wisconsin’s criminal justice system continued to observe its austere situation deteriorate over the past decade while, at the same time, monied interests successfully targeted judicial campaigns in the state with pure indifference.
For instance, experts say there is a shortage of prosecutors in Wisconsin. This appears to especially be so in Dane County, which has roughly the same amount of prosecutors as it did in the 1980s. The Isthmus magazine has reported several times about how the shortage of prosecutors in Dane County has caused problems for the Dane County District Attorney’s Office over the years. However, Dane County itself is no outlier. Many other counties in Wisconsin, such as Racine County, also struggle with inadequate prosecutorial staffing. And numerous prosecutors in Wisconsin find themselves underpaid, requiring some to work a second job just to make ends meet.
Unfortunately, Wisconsin’s predicament in this regard is not unique. Across the country, prosecutors are often overworked and underpaid, handling more cases than legal experts suggest they can handle in a competent manner. Recognizing that excessive prosecutorial caseloads are commonplace, legal scholars argue such caseloads tend to result in “longer sentences for less culpable offenders, longer delays in the dismissal of charges against the innocent, [and] fewer disclosures of exculpatory evidence by prosecutors.”
The effects of burdensome prosecutorial caseloads not only affect the rights of criminal defendants. Inappropriate prosecutorial caseloads also negatively affect the rights of crime victims. For example, more than half of Wisconsin’s counties in 2017 on average failed to comply with state guidelines providing that prosecutors should make charging decisions in sexual assault cases within three weeks after police refer such cases to them, according to an investigation conducted by USA TODAY NETWORK-Wisconsin.
Problems with the country’s underfunded criminal justice system aren’t isolated to prosecutors either. For example, a 2004 American Bar Association report documented how many public defenders—like their prosecutorial counterparts—are overworked and underpaid. In such an environment, public defenders are unable to perform their legal duties in a competent manner. For example, a 2014 study conducted by RubinBrown showed that Missouri public defenders spent an average of two hours working on a misdemeanor case, even though an average of 12 hours was required to provide competent representation.
In Wisconsin, the problem of public defenders being both underpaid and overworked extends to private attorneys who are appointed by the state public defender’s office to represent indigent defendants. Until recently, these appointed attorneys received $40 per hour, which was the lowest compensation in the nation and was not even enough to reasonably cover an attorney’s overhead in the long-run.
The ramifications of Wisconsin inadequately funding its indigent criminal defense system can be seen reverberating through the state’s criminal justice system. Private attorneys appointed by the state public defender’s office do not consistently hire private investigators to assist with their clients’ cases when appropriate to do so. And many county circuit courts are now appointing counsel for indigent defendants at county expense due to the shortage of both public and private criminal attorneys available for appointment by the Wisconsin State Public Defender’s Office to represent indigent defendants in Wisconsin,.
In fact, some indigent defendants in Brown County have had to wait more than 100 days before receiving legal representation from an appointed attorney. When there is such a large delay in a defendant receiving legal representation from appointed counsel, it can result in the dismissal of a criminal case—as one recent Wisconsin Court of Appeals decision shows. Although such a dismissal is typically without prejudice—meaning the prosecutor may simply request permission from the trial court to refile the criminal charges against the defendant, restarting the entire process over again from the beginning. That the Brown County trial division of the Wisconsin State Public Defender’s Office currently has “three vacant staff attorney positions” certainly has not helped its already overworked public defenders provide timely representation to all indigent criminal defendants. Then again, the Wisconsin State Public Defender’s Office lost a total of nearly 80 employees during the pandemic—with none appearing to have been replaced so far.
If Kurt Vonnegut, the satirist and novelist who came to prominence in the late 1960s and early 1970s, was somehow able to observe Wisconsin’s decaying criminal justice system today, he might provide Wisconsinites with the pithy response he often gave his readers. “So it goes.”