Monday, February 4, 2013

Lester Pines: Why I Will Not Support Rebecca St. John For Circuit Court Judge

Below is the text of a public letter released Monday by Madison Atty. Lester Pines:

Recently I reviewed the June 26, 2012 application, submitted by Rebecca St. John, that convinced Governor Scott Walker to appoint her as a Dane County circuit court judge. 
In the application she says that many times circuit court judges ignore the rules and interpret statutes for the sake of “political expediency.” But another statement is the most troubling:

“According to the supreme court, all laws are to be sustained against a constitutional challenge unless they are unconstitutional beyond a reasonable doubt. Too often, circuit court judges pay merely lip service to this standard.” (St. John Application, p. 12)

In other words, she thinks that circuit judges blithely declare laws to be unconstitutional.

Judge St. John should name the circuit court judges and produce the cases decided by them that support her assertion.
I suspect that she will be unable to do so. I have litigated numerous constitutional challenges in circuit court and have never experienced a judge “merely paying lip service” to his or her legal obligations.
What is more likely is that Judge St. John made the statement to Governor Walker, who uses such misleading rhetoric to demonize the judiciary, as a “dog whistle” alert to let him know that she will support him and his legislative acolytes when their laws are challenged.

The most recent cases from Dane County in which the constitutionality of a statute was challenged that were finally decided prior to Judge St. John’s successful application for appointment are:

• League of Women Voters Educational Fund, Inc. v Walker where Judge Richard Niess determined that the Voter ID law was unconstitutional;

• McConkey v Van Hollen where the constitutionality of the manner in which the Marriage Amendment was submitted to the voters. Judge Niess held that the Legislature had acted constitutionally;

• Appling v Doyle in which a group of citizens challenged the constitutionality of the Domestic Partners Law. Judge Daniel Moeser found the law to be constitutional;

• Dairyland Greyhound Park v Doyle which was a challenge to the constitutionality of certain Native American gaming compacts. Judge Richard Callaway found the compacts to be constitutional.

Three of those four circuit court decisions upheld the constitutionality of the challenged law.
Only the Voter ID law was declared unconstitutional. Does Judge St. John assert that Judge Niess “paid merely lip service” to his duties in the Voter ID case but followed the law in Marriage Amendment case?

Judicial elections are important. We elect judges to apply and interpret the law. Most importantly, judges function as a “check and balance” against the excesses of the legislative and executive branches. When judges do so, they are not “creating law” or “acting for political expediency” or “paying lip service” to their obligations.

To protect our rights, the judges of this state carefully consider challenges to the constitutionality of laws and strike them down when they must. No one, just to get appointed to the bench should, as Rebecca St. John did, suggest otherwise.


Anonymous said...

Is Attorney Pines argument that circuit judges never err on constitutional law? Therefore, shall we conclude no lawful need for a State Supreme Court?

His statement is merely selected cases for HIS opinion.

Anonymous said...

I didn't know who she was before, but I will be voting for her now. thank you for the heads up.

gnarlytrombone said...

"Is Attorney Pines argument that circuit judges never err on constitutional law?"

No. This has been another edition of simple answers to stupid questions.

Stu Levitan said...

Try to follow along, folks. Lester was not commenting on the decisions he referenced; he was commenting on Judge St. John's COMMENT about judges purportedly "merely paying lip service" to the presumption of constitutionality. He made the point that of the four most recent constitutional challenges, only one was successful, and asking the relevant question -- does Judge St. John think that decision showed "mere lip service" to the presumption?

zombie rotten mcdonald said...

I didn't know who she was before, but I will be voting for her now. thank you for the heads up.

Ah. The old "I support anything if it will piss a liberal off" justification.

I guess it's easier than thinking.

Anonymous said...

Anonymous #1 said "His statement is merely selected cases for HIS opinion."

If there are any other cases that contradict Pine's point, please come forward with them.

Lester Pines said...


You obviously did not carefully read what I said. Let me clarify it for you. Cases that challenge the constitutionality of a statute are rare. The four cases that I referenced are the only cases of which I am aware that were decided in Dane County. There may have been cases decided in other counties. The point is this: Judge St. John said that circuit court judges merely pay lip service to the requirement that a person challenging a statute's constitutionality convince the judge that the statute is unconstituional beyond a reasonable doubt. Of the four cases that circuit judges in Dane County have considered, in three of them the judge held the statute to be constitutional. That means that the judge was not convinced beyond a reasonable doubt that the statute was unconstitutional. So in those cases, the judge could not have merely "paid lip service" to the standard. Only in the Voter ID case did the judge find the statute unconstitutional. Judge Niess was the judge in that case and in the Marriage Amendment case. My question for Judge St. John is: what cases is she taling about in which she has seen judge's merely paying lip service to the appropriate legal standards. This has nothing to do with the outcome of the cases. It has to do with how the judges do their jobs. If she is going to make the charge that other judges don't do their jobs right, but she would then she should back up her claim about what other judges fail to do. If she can't back up her claim, then that raises the question of why she made the claim in the first place. I've been a lawyer for 38 years. I won cases and I've lost them. I seen judges make mistakes. But I've experienced a judge in this state who deliberately ignored or paid lip service to the law when making a decision.

Will said...

Mr. Pines said: "But I've experienced a judge in this state who deliberately ignored or paid lip service to the law when making a decision."

It sounds like you agree with Judge St. John!! But I won't ask you to identify the judge, as you are demanding of Judge St. John.

Will said...

Stu Levitan - Why is it relevant that there are 4 constitutional cases in Dane County, regardless of which way they were decided? Judge St. John is clearly not talking about the cases that ARE challenged constitutionally. Those 4 cases had more than "lip service" (a lot more), did they not? Does Judge St. John need to identity some specific cases that only had "lip service?" I don't think so. But I certainly support a circuit court judge who clearly states the importance of not paying "lip service" to the constitution. I hope you and Mr. Pines feel the same way.

Anonymous said...

I won't be voting for her. Thank you for writing this. I agree with you.