March 12, 2009

Koschnick the not-so-strict constructionist

For a candidate who constantly accuses his opponent of massaging the law to suit her "activist" predispositions, Jefferson County Circuit Judge Randy Koschnick is himself pretty slick at molding it to conform with his own (non-partisan) political agenda.

At a judicial debate forum in Milwaukee yesterday, both Judge Koschnick and Wisconsin Supreme Court Chief Justice Shirley Abrahamson were asked to state their views on Siefert v. Alexander, a recent decision of a United States district court that invalidated as unconstitutional three provisions of the State judicial ethics rules.

Koschnick said he approved of Judge Barbara Crabb's handiwork, despite its being an example of so-called judicial activism — not to mention a federal incursion into the business of a State.

Judge Koschnick, prefatory to taking the Chief Justice to task for doing exactly what he's done himself — accepting campaign contributions from lawyers with cases that came before their respective courts — had the following to say:
And an interesting contrast that Justice [sic] Crabb laid out that I agree with. She said that there is a significant danger posed by ethics rules that allow candidates and sitting judges to take donations from lawyers who have pending cases. So if this dangerous practice is allowed in Wisconsin, it doesn't make sense to prohibit the much less threatening practices of allowing judges and justices to declare party affiliation or to personally solicit donations.
While Judge Crabb arguably implied somewhere a remotely applicable reference to a situation tangentially comparable to the very specific one Koschnick invokes, her remarks were far more general than Koschnick might like his would-be supporters to believe.

Moreover, in striking down the State ethics rule that required judicial candidates to solicit campaign funds through committees as opposed to doing so directly and personally, the federal judge said such exchanges may have a coercive effect on the contribution's donor, not necessarily its recipient, the candidate.

In other words, the "danger" contemplated in Siefert is that such potential donors might feel obligated by the need to contribute to a judicial candidate's campaign.

The opinion even provides an example of the same from Florida, where a judge's surrogate rang up an attorney with a case pending before that judge to thank the attorney for his written endorsement but reminding him the envelope was barren of cash monies.

Yet the situation Koschnick is attempting to invoke is precisely opposite of the one Judge Crabb mentions. That's what we call "standing the law on its head."

Judge Crabb does go on to discuss the potential influence of campaign money on judges' decision making by chastising the defenders of the ethics rule's dependence on a statement made by former Justice Sandra Day O'Connor, but Judge Crabb takes pains to point out that Justice O'Connor wasn't addressing the sort of specific instance Koschnick raises either: "[O'Connor's] criticism was not of personal solicitations in particular but judicial fund raising generally."

In conclusion, Judge Crabb writes:
If defendants believe that some potential donors will feel coerced because they are likely to appear before that judge, less restrictive (and more effective) responses would include limiting solicitations of those who are frequent litigants or requiring recusal when anyone who was solicited appears in that judge’s court.
That is, according to Siefert, it's the lawyers in Judge Koschnick's scenario who donated to Chief Justice Abrahamson's campaign who are the ones that may be feeling coerced, not the Chief.

Except Koschnick doesn't tell us whether the lawyers he has in mind are "frequent litigants" — however "frequency" might be adduced — or whether they were "solicited" by the Chief (they weren't; they donated because they wanted to, and because they can).

Furthermore, Judge Crabb noted the results of a study published in a law review article that found that "75% of all cases coming before [the] Wisconsin Supreme Court in [the] 1990s involved [a] lawyer, firm or company that had contributed to one or more of its justices."

So once again we're presented with an example of Koschnick cherry picking through the data and finding a singular instance to suit his purposes. Later on he was at it again, mining not just individual decisions from a collection of more than 3,500, but even individual sentences, completely out of context, from individual opinions.*

And, of course, Koschnick never mentions that lawyers employed by the firm representing the adverse party in his carefully selected example have made contributions to every justice on the Wisconsin Supreme Court, not just the Chief.

Ultimately, if Judge Crabb was advocating any extrajudicial recommendations at all beyond the narrow holding in the case — that of invalidating the three ethics provisions — they were in favor of public financing of judicial election campaigns, which also happens to have been Chief Justice Abrahamson's stated position for years. And she expressly maintained that position again yesterday.

Finally, it's remarkably ironic for the strict constructionist Judge Koschnick to be making positive appeals to dicta beyond the central holding in Siefert, as he has elsewhere criticized the Chief Justice for fashioning exactly those.

Which is to say, were Judge Crabb of the "judicial conservative" sort that Koschnick claims to admire and presents himself to be, those dicta wouldn't even exist to use, abuse, or otherwise appeal to.

According to Judge Koschnick's "judicial philosophy," judges should confine themselves to the specific questions presented by the case before them and not attempt to establish broader legal rules, which he disapprovingly refers to as "legislating from the bench."

But for some reason Koschnick doesn't criticize Judge Crabb for venturing beyond the specific questions presented in Siefert. He instead purports to conveniently locate within that extraneous verbiage some validation for his ill-concealed political axe grinding.

This "judicial philosophy" is apparently adjustable to whatever Judge Koschnick finds accommodating, wherever he can find it, and, in this latest instance, whether it says so or not. In that respect, he's far more of a "judicial activist" than his political opponent ever was.

* Dutifully trumpeted by the Milwaukee Journal-Sentinel along with other various organs of the Wisconsin press, which are telling us this morning how Chief Justice Abrahamson must defend herself against Judge Koschnick's spurious accusations of "judicial activism."

Journal-Sentinel reporter and forum panelist Steven Walters even went so far as to demand from the Chief Justice a response to Judge Koschnick's charges of being "60% pro-criminal," to which a perfectly appropriate rejoinder would have been: 'Because they are idiotic, fallacious, pandering, methodologically flawed, and, most importantly, deliberately misrepresentative of the role of the court.'

But fortunately Chief Justice Abrahamson is by an astronomically ginormous measure more diplomatic than I.

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