ESCHEWING TRADITION, SUPREME COURT CANDIDATE BURNS OPENLY SHARES POLITICAL VIEWS
After the state Department of Justice released its report on the leak of John Doe records, Supreme Court candidate Tim Burns unloaded on Twitter.
“The horror of Walker’s rubber stamp Supreme Court: the people are left without a means to determine if public officials are abusing their power and an independent branch of government to stop the abuse. #JohnDoe #WIpolitics #SCOWIS,” wrote Burns, running in a three-way race early next year for the seat being vacated by conservative Michael Gableman.
It is far from the only time the Middleton attorney has taken a stand on Twitter. In recent weeks, he’s tweeted Wisconsin voters want a justice who won’t be “just another rubber stamp for Scott Walker’s extreme agenda” and asked for help to change the court because “I believe we have to stop the mass incarceration of people of color.”
Typically, Supreme Court candidates shy away from such comments on legal and political issues, often saying conduct rules for judges and judicial candidates mean they can’t take stands on matters that could come before the court. That often leaves them issuing bland pronouncements about their legal philosophies or touting endorsements from law enforcement.
But in an environment with liberals fired up over President Trump GOP domination of D.C. and Madison, Burns has chosen a much different path. He makes no bones about running as an unabashed progressive as he works toward a February primary with Milwaukee Judge Rebecca Dallet, who’s running a left-of-center campaign, and Sauk County Judge Michael Screnock, a favorite of Republicans. In the process he’s won the backing of partisans like U.S. Rep. Mark Pocan, the Madison-area politician who is co-chair of the Congressional Progressive Caucus.
Aides to Dallet and Screnock knock the approach, though they stop short of saying whether Burns’ statements have violated judicial conduct rules.
Burns said he has read extensively those restrictions and is aware of them every time he speaks.
“Our campaign morality is to let voters know who I am,” Burns told WisPolitics.com.
Burns has a prolific presence on Twitter, weighing in on news stories and retweeting links to articles. He has proclaimed, “I believe in strong workers #unions and think efforts to undermine them harm all of us” and that “Voter ID laws that disproportionately impact people of color are dangerous to our democracy and our economy.”
In September, an appeals court upheld Wisconsin’s right-to-work law, while various challenges to voter ID have been filed in state and federal courts in recent years.
This week, he tweeted several reasons why he’s a progressive, including “I think that #women should get to make their own healthcare decisions. I believe in one person, one vote. I think that #Gerrymandering threatens our democracy.”
Burns’ statements do not include an explicit promise to vote one way or another on a court case, and he said that’s because he is closely hewing to court rules.
Among other things, the rules state a judge, judge-elect or candidate for judicial office may not “with respect to cases, controversies or issues that are likely to come before the court” make promises on how they would rule.
Sean Lansing, an adviser to Screnock’s campaign, said the circuit court judge will be clear about his judicial philosophy. But he believes Burns is implicitly indicating to parties how he would rule on the bench.
“These guys should be impartial arbiters of the law and not political activists,” Lansing said. “Tim Burns has shown he’s more of a political activist at heart than a legal mind.”
Dallet criticizes OWR endorsement of Burns
Jessica Lovejoy, Dallet’s campaign manager, held up the endorsement Burns won from the liberal group Our Wisconsin Revolution to question the lawyer’s ability to be impartial if elected to the bench. She charged Burns pledged to “carry out” the group’s platform.
“If Mr. Burns wants to push a political agenda, he should run for the Legislature,” Lovejoy said.
Our Wisconsin Revolution, which counts former presidential candidate Bernie Sanders’ backers among those who helped found the organization, has approved a platform calling for:
*applying an “equity lens” to public decisions to addressing disparities in education, employment and the justice system;
*working to end the mandatory minimum sentencing requirements, truth-in-sentencing laws and “racial disparities in arrest rates for like behaviors and time of imprisonment for like crimes”;
*asserting and defending the right of all workers to unionize and collectively bargain;
*vigorously defending limits on high-capacity wells, concentrated animal feeding operations, mining and other “environmentally-harmful practices.”
Read the group’s platform:
Terrance Warthen, OWR’s state co-chair, said the group’s endorsement process does not begin until a candidate approaches OWR, and Burns sought its support. Candidates are then given equal time and are supplied with the platform.
In the process, all candidates were asked to read the platform and note where they agree or disagree and why, according to an email the group sent during the process that was shared with WisPolitics.com. The email noted judicial candidates cannot “commit to pre-judging cases,” but Burns agreed with the values outlined in the platform “in full.”
“We’re not asking anyone to pledge fealty to any organization. We’re just asking for basically what is your system of beliefs?” Warthen said.
Dallet’s campaign gave WisPolitics.com a letter the judge sent the organization’s board of directors before the endorsement was released. She wrote it was “inappropriate and unlawful for judges and judicial candidates to sign a pledge supporting a political platform.”
“Any judge who does so is essentially assuring that they must recuse themselves from cases involving the issues in that platform,” she wrote, including a reference to the Judicial Code of Ethics and the provision banning judges and candidates from making pledges.
Burns rejects that he did any such thing. He also said what he’s done is no different that candidates filling out questionnaires
“Do I think CAFOS are dangerous for a lot of reasons?” Burns said. “Yes, I do. Does that mean I’m going to be biased against them when they come into court with an actual lawsuit? No. It just means that as a citizen, as a policy matter, I have political views. Guess what? Anybody running for this office does. I’m just candid because I think voters deserve to know.”
Burns’ campaign touts poll results
Burns’ campaign argues his approach is not only proper but represents the best path to victory, pointing to a poll it commissioned last month.
When first asked about the race, 7 percent of likely February primary voters backed Burns, 7 percent favored Dallet and 4 percent preferred Screnock.
Those conducting the poll then read the respondents bio information on all three, according to the campaign. That includes that Burns as a justice would protect voters rights, a woman’s right to choose and the right to enjoy the outdoors free from pollution. They were also told Dallet’s an experienced prosecutor who wants to restore independence and balance to a partisan court. Finally, they were told Screnock was appointed by Gov. Scott Walker because he respects law and order and believes judges should not legislate from the bench.
After being asked their choice again, 33 percent backed Burns, 23 percent Dallet and 22 percent Screnock with 21 percent undecided.
They also were read negatives on Burns and Dallet before being asked their pick a third time.
Respondents were told Burns has never been a judge. They also were told the court needs an independent justice and partisan politics have no place on the court, but Burns has campaigned by expressing his political views.
The negatives read on Dallet included the donation she received from Chief Justice Pat Roggensack and how she’s one of the “harshest judges”
Campaign finance reports show Roggenack’s campaign gave Dallet $2,500 in December 2013, while a Gannett Wisconsin Media report found she was one of the three judges in Milwaukee County most likely to hand out the harshest sentences.
The poll did not include any negatives on Screnock.
When asked their view of the race after the negatives were read, Burns was at 38 percent, Dallet 13 and Screnock 23 percent.
The statewide poll of 400 likely February primary voters was conducted Nov. 11-14 by Tulchin Research using live professional callers dialing both landlines and cell phones. The margin of error was plus or minus 4.9 percentage points.
Both Dallet and Screnock’s campaign dismissed the poll. Lovejoy, with Dallet’s campaign, called it “campaign propaganda.” Lansing, with Screnock’s campaign, noted it was done during the holiday season, when people aren’t really paying attention to politics and questioned the value of an internal poll commissioned by a progressive candidate and equally progressive firm.
Burns’ has been frequent Dem donor
Along with being outspoken on Twitter, Burns has a lengthy history as a donor to Dem candidates.
In the 2015-16 cycle, he gave $42,256 to federal candidates, according to a check of FEC records. That includes $5,400 to Pocan, who endorsed him his week. Burns also gave $2,700 to Bernie Sanders in the presidential primary and then $5,400 to Hillary Clinton split between June, when she had all but sewn up the nomination, and then in September.
He’s also given $46,216 to state candidates since 2008, according to a check of the Ethics Commission database.
That includes $10,00 to Tom Barrett in the 2010 guv race against Walker. Burns, the only candidate in the race who signed the Walker recall petition, gave another $10,000 to the Milwaukee mayor in the recall election against Walker in 2012, and he contributed $10,000 to Dem Mary Burke in 2014 as she challenged Walker.
Meanwhile, Dallet’s only donations to state candidates since 2008 have been to judicial candidates, including liberal Justice Shirley Abrahamson in 2008, according to the Ethics Commission database.
Besides his own campaign, Screnock’s only donation in the state Ethics Commission database is $20 to then-AG J.B. Van Hollen in 2009, a year before the Republican sought re-election.
Lansing said Burns’ donations “follows a pattern and fits the narrative of a candidate whose statements and actions are better suited for a state legislative or governor’s campaign” rather than the Supreme Court.
Burns has not shied away from his past political contributions, and dismissed criticism of his approach to the campaign.
“Anybody that says that I’m crossing the line here is misrepresenting what the law is in this area or they just don’t know what it is,” he said.
Rulings loosen restrictions on judicial candidates
A series of court cases over the past 15 years have loosened restrictions on what judicial candidates can say and do on the campaign trail:
*In 2002, the U.S. Supreme Court ruled unconstitutional Minnesota rules that forbade judicial candidates from announcing their views on legal and political issues.
*In 2007, a federal judge in Wisconsin’s Western District struck down a state provision that required judges to disqualify from a case if as a candidate they said something — other than in a court proceeding — that appeared to commit the judge to rule a certain way.
*In 2011, the 7th Circuit Court of Appeals, which includes Wisconsin, ruled Wisconsin could not prohibit judicial candidates from belonging to political parties.
Other restrictions have been upheld, such as the U.S. Supreme Court two years ago ruling in favor of a Florida ban on judicial candidates personally soliciting campaign funds.
Charles Geyh, a Wisconsin native who’s now a law professor at Indiana University, said many judicial candidates have kept to the tradition of refraining from taking stands on political issues even after the 2002 court decision to maintain a public perception of impartiality. He said Burns stuck out to him as someone embracing the opportunity to speak more freely.
Still, he said it would give critics fodder to ask for his recusal in some cases if he were elected, and he predicted Walker would raise objections to Burns sitting on a case involving his administration. Burns has tweeted comments such as the next justice can’t be a “rubber stamp” for Walker’s agenda, which he’s also called “extreme.”
Geyh said Burns’ political donations are a “drop in the bucket” compared to the money outside groups have pumped into Wisconsin Supreme Court races in recent years. Still, the money, Burns signing the recall petition and the Twitter comments have produced a narrative that he said could be concerning.
The question for Burns if he’s elected to the court is if a reasonable person would look at his comments and other factors to believe he viewed his job as a justice as being a “roadblock” to Walker rather than an impartial jurist, he added.
Geyh also said judicial candidates who get too political on the campaign trail can result in a “bad result and a worse result.”
“Bad is the candidate gets elected by voters who take these views and then he shows up on the bench and recuses himself because the reason they voted him into office is now disqualifying him. Worse result is he gets elected on the strength of promises he shouldn’t be making and then refuses to disqualify,” said Geyh, who worked on an American Bar Association effort a decade ago on judicial disqualification standards, an effort he said was ultimately unsuccessful.