The paper (.pdf; 9 pgs.), which briefs a number of Butler's written opinions and offers several handy rhetorical epithets that may well (or not so well) appear on the lips of supporters of Burnett County Circuit Court Judge Michael Gableman, includes footnoted citations to Esenberg himself, that resplendent beacon of non-partisan decorum the Wall Street Journal editorial page, and, of all people, Milwaukee right-wing radio talker Charles J. Sykes.
This is amusingly ironic because the paper's author criticizes Butler for "citations to non-legal authorities" and "moral outrage substituted for sound legal reasoning." While Sykes's magazine article (.pdf; 6 pgs., including cartoons) — "Wisconsin's Activist Court" — is referenced for a separate proposition, the radio gabber also addresses one of the cases the white paper presents as emblematic of Butler's "activism" in the Esenbergian sense.
That case is State v. Knapp (Knapp II) (.pdf; 62 pgs.), a set of opinions issued by the Wisconsin high court on July 14, 2005, but with a procedural history worth recounting here. I am not going to engage the merits of Knapp at the moment. I simply think it's helpful to provide a bit of context to a portion of this "white paper," the latest attack on Justice Butler, which I think could do with some.
State v. Knapp's direct antecedent, Knapp I (.pdf; 96 pgs.), had appeared almost exactly two years earlier (before Butler had joined the court), and its majority had reached the same conclusion as had, ultimately, Knapp II: where the arresting authorities had deliberately withheld the suspect's Miranda rights with the intent of coercing a confession, not only were statements obtained pursuant to that constitutional violation inadmissible as evidence, but also the physical evidence so obtained was similarly excluded.
Miranda rights derive from the U.S. Constitution's Fifth Amendment, which ensures, "No person ... shall be compelled in any criminal case to be a witness against himself." In general, the United States Supreme Court has been hesitant to extend that protection beyond verbal statements of the accused to physical evidence. In Knapp, a murder case, that physical evidence was a bloodstained sweatshirt.
In the wake of Knapp I, the State of Wisconsin petitioned the U.S. Supreme Court for a writ of certiorari, which the Court granted, and on June 30, 2004, vacated Knapp I and remanded it back for reconsideration in light of United States v. Patane, decided two days earlier. Also on June 28, the Court had released Missouri v. Seibert. Both Patane and Seibert addressed the admissibility of evidence obtained by authorities in the absence of Miranda warnings, and both cases figured prominently in Butler's Knapp II majority opinion.
Nevertheless, the noted and estimable jurisprude Charles J. Sykes, writing for the Wisconsin Policy Research Institute, a so-called "think tank," saw fit to declare of Butler's opinion that,
What stunned the dissenters and many court watchers, however, was the court’s decision to ignore the specific decision of the U.S. Supreme Court in the case before it.This is a remarkable observation on at least three grounds: (1) there were two cases (2) far from ignoring either Patane or Seibert, Butler devoted nearly one-third of the majority opinion's 46 pages to an in-depth discussion of both cases — in fact, the entire opinion can fairly be said to have been informed by Patane and Seibert and (3) if anyone "ignored" either case, it was the Knapp II dissenters, Justices Wilcox, Roggensack, and Prosser, who barely mentioned them.
The dissenters preferred to base their objections on the doctrine of stare decisis;* in this case, they would not have departed from Wisconsin's habit of interpreting its own State constitutional corollary to the Fifth Amendment any differently than the U.S. Supreme Court, as the dissenters claimed the Knapp II majority had done.
The troubles with this objection, however, are also three-fold: Patane is a plurality decision; that is, but three Justices signed the lead opinion. Two others concurred only with a portion of the lead opinion and four dissented. And Siebert, issued the same day as Patane, is likewise a plurality decision, with four Justices on the lead opinion and two in separate concurrences. Furthermore, Siebert reaches conclusions of law at odds with Patane. Finally, in Knapp, the evidence showed that the authorities had deliberately withheld the Miranda warnings with the intent of coercing a confession, a feature that distinguished the case from both Patane and Siebert.
And there is considerably more to the Butler majority's analysis than the foregoing even begins to suggest. Suffice to say, the U.S. Supreme Court's guidance is not as clear as Butler's detractors would have one believe. There also inheres, in these objections, the somewhat perverse spectacle of political conservatives demanding that a State entity defer unwaveringly to a federal body. Or perhaps that is what they mean by the "Federalist Society" after all. I always suspected as much, since their mascot is a cameo of James Madison.
My point is, if it isn't obvious already, that in their zeal to denigrate Justice Butler in the months leading to the electoral challenge to his incumbency, his detractors are apt to present an overly simplified — if not misleading — account of his jurisprudence. Tarring him as an "activist judge," unmoored from context and a more fair-minded assessment of the complex circumstances of these individual cases is far more raw politicking than considered legal analysis, even when it is presented by a law student/Esenberg research assistant.
Or, for that matter, a right-wing radio squawk machine.
* Elsewhere, in a video produced for Wisconsin Manufacturers & Commerce, Rick Esenberg, echoing the facile baseball analogies of then-D.C. Circuit Judge John Roberts, claims that, "Judges apply the rules, they don't make the rules." Who or what then, one wonders, made stare decisis? Incidentally, the transparently political nature of this purportedly "educational" presentation is almost comical, and I hope to address it in more detail another time.