A court decision that overrules longstanding law that had protected the most vulnerable. A political court that accepts false information as fact. A corporate court willing to overlook the obvious cruelty of an unnecessarily sweeping ruling.
With all the news about the U.S. Supreme Court this week, especially the large number of recent 5-4 decisions that harm workers and bust unions, back admittedly racist policies and explicitly propel the election of Republicans, you might be thinking I’m talking about that court. Yet there are other supreme courts in the land doing similar damage around the country, and today we’re talking about one of those: the Wisconsin Supreme Court.
On Wednesday, the Wisconsin Supreme Court told Ascaris Mayo, a 53-year-old mother of four, that despite the amputation of all four of her limbs due to medical malpractice and despite her having won her negligence case and proving before a jury that she would suffer $25.3 million in damages, she would only get a fraction of that amount due to a state law that severely caps compensation to patients like her.
Yet this is a law that should never have been. Let’s explain why:
1. In 1986, the Wisconsin legislature capped damages but the law was allowed to sunset in 1991.
2. In 1995, the legislature capped damages again.
3. On July 14, 2005, the Wisconsin Supreme Court struck down the law, correctly finding no rational basis for it and a violation of equal protection. The case, Ferdon v. Wisconsin Patients Compensation Fund, involved compensation to a child who was severely deformed at birth because of a doctor’s negligence. The Wisconsin Supreme Court found the following:
- severely injured children and their families are most hurt by a cap,
- patient safety is hurt by a cap,
- caps do not lower malpractice premiums for doctors,
- caps do not attract physicians to the state,
- medical malpractice is a tiny fraction of health care costs,
- defensive medicine does not lead to higher health care costs.
You’ll find that every single one of these findings was true then and is still true today as other state supreme courts, like Florida’s, have also found. (See more support in the Center for Justice & Democracy’s new Medical Malpractice Briefing Book – By the Numbers.)
4. Despite being unconstitutional, the very next year, “State lawmakers led by then-Rep. Curt Gielow (R-Mequon), a former hospital administrator … approved a $450,000 cap that was vetoed by then-Gov. Jim Doyle.”
5. The legislature then passed another unconstitutional cap, this one $750,000, and Doyle signed it.
Proponents of this law knew it was unconstitutional and would be challenged, so they took a page from an already well-established “tort reform” playbook: shift focus to elect pro-industry judges and defeat judges who have voted to strike down laws that limit or immunize wrongdoers from liability and make it more difficult or impossible for injured consumers to go to court (i.e., “tort reform”). Indeed, a judicial election strategy has been a major focus of this movement since the 1990s, with one leader admitting in 1998 that “since amending constitutions and enacting federal legislation were not viable options for them, their only option was to influence judicial elections.” In Wisconsin, this has led to a deep and destructive politicization of the Wisconsin Supreme Court.
After the cap was re-passed, Big Business interests got busy. For example, the Wisconsin Manufacturers & Commerce, the state’s chapter of the U.S. Chamber of Commerce, which had “criticized the court for some of its rulings in product liability and personal injury cases,” spent more than $2 million in high court races in 2007 and 2008. Since then, plenty of outside money has flowed into the state, including from Koch-affiliated groups, which run “overwhelmingly negative” attack ads on Justices they don’t like.
The 2011 re-election campaign of conservative Justice David Prosser, who was once “accused of choking a fellow jurist,” was “supported by more than $2 million from conservative groups and big-business groups.” Prosser once called then Chief Justice Shirley S. Abrahamson a “total bitch,” adding that he would “destroy” her in a “war.
Notably, Justice Abrahamson wrote the 2005 Ferdon decision, which the now-conservative, Big Business court went out of its way to explicitly overrule this week, a seeming personal insult to Abrahamson who still sits on the bench. She is not seeking reelection next year. Expect the battle over her seat to be as nasty, noisy, costly and deceitful as any other 2019 campaign for political office.
With money and politics already dominating the executive and legislative branches of government, America’s court system should be a place where individuals and small businesses can successfully confront powerful industries and institutions, and force changes in their fraudulent or dangerous behavior. But the power and authority of judges and jurors represent a tremendous threat to the money-based political structure in this country. By taking power away from civil jurors with “tort reform” laws and targeting judges whose decisions they do not like, large corporate special interests are trying to change the entire landscape of the civil justice system. The intensity of these efforts leaves no doubt that a weakened civil justice system is only their first objective. Control of the entire judicial process is the goal.
Yet that’s not what the public wants. They want politicians to keep their hands off the constitutional right to civil jury trial. They want wrongdoers to be held fully accountable in court. The believe that people severely injured through no fault of their own, like Ascaris Mayo, should have the chance to go to court and be fairly compensated. And they want their judges to be independent, and not have to look over their shoulder worrying about what corporate giants think of them.
The outcome of state judicial elections can have enormous consequences for the everyday lives of Americans. Just ask injured patients in Wisconsin. Let’s hope we all pay attention.