THE VINDICATION OF LOUIS BUTLER -- and How It Shames Wisconsin Voters

By Dominique Paul Noth

Louis Butler Jr.

It took nine years after he wrote Thomas Vs. Mallet to see its full force conclusively confirmed in 2014 by the US 7th District Court of Appeals. But by then it had already been recognized and used in national court rulings and writings as a key modernization of traditional tort liability law. 

That 2005  Wisconsin Supreme Court decision sent Wisconsin Manufactures & Commerce (WMC) into full-throated $2.25 million ad  rage in 2008 to defeat the author, Justice Louis Butler Jr. It caused conniptions among national chemical plant CEOs -- denial and delay even after Butler was defeated,  then aggressive lobbying their friends in Madison under Gov. Scott Walker’s reign  to pass legislation  to prevent retroactivity in lead paint cases. Their 2011 revenge law was later ruled as (yet another) unconstitutional invasion by the GOP legislature into judicial sobriety. 

Though every court up to the US Supremes has rejected the chemical companies’ efforts to block Butler’s decision, and several courts have actually used it, the detractors didn’t stop yelling. You would think the 7th District in 2014 struck the blow to finally beat these squadrons of chemical company lawyers to their knees. But the machinery of legal challenges that corporation lawyers relied on means that not until 2016 will some 173 Milwaukee household cases involving lead paint poisoning move to juries or settlement. 

The children in these original cases (whose privacy deserves protection) are grown, dead, hospitalized or in several cases in prison or in some institution.

Justice delayed may not always mean justice denied, but don’t try to sell that to these families or to Louis Butler Jr.

Butler was clearly an ascending jurist – a state public defender, then a teacher of judges, a law professor, a municipal judge and elected Milwaukee circuit judge. It was actually his reputation for scholarly congeniality even more than progressive leanings and political ability that won appointment in 2004 by Gov. Doyle to the state supreme court.  He had actually run against Diane Sykes in 2000 and now was replacing her.

He was also the first African American justice on that bench. But in 2008 he also became the bench's first incumbent to be defeated since George Currie in 1967 (largely blamed for a ruling that let the Braves move to Atlanta  -- in other words, serious offense to the public, not destroying thousands of minds with poisoned paint chips).

News in the US is entering an era of headlines dominated by cases of pollution and toxicity involving not just lead paint in homes -- still a lively lingering issue as editor Bruce Murphy recently detailed -- but such growing problems as fracking, mining runoff, pipe ruptures, environmental spills and other poisoning of land and water.  Atty. Peter Earle (who has argued the lead paint responsibility issue in many state and national cases) says Butler’s 2008 decision was a “courageous ruling” that now plays a pioneer interpretive role in all tort cases of causation and liability.

Where once an industry could hide behind the plaintiff’s inability to identify the precise source -- Which of four area fracking companies fouled the water table? Or which of five manufacturers making lead paint could be held accountable despite gaps in 50 year old records? -- Butler’s decision helps a court and jury measure responsibility among residents, property owners and manufacturers in the same industry.  

Millwaukee Magazine photo of Peter Earle.

“Big business is terrified of this legal development,” Earle told me in a recent interview, “because it can be applied to similar situations in which generic toxic products are negligently produced on a massive scale and cause widespread harm.”  

You can still find remnants of big business’ misshapen attack on this thoughtful reasoning about liability in wrongful acts – without any awareness that time has redeemed the judge’s stances – on the WMC’s own website.

No one (at least until this writing)  has corrected WMC leader Jim Pugh’s 2013 crowing,  still calling Butler’s ruling a “guilty-until-proven-innocent standard” though lead paint manufacturers have been treated fairly in the few cases already using the standard.  Juries are smarter than WMC thinks. Pugh exposes why the trade group’s heavy hand and aggressive self-glorification annoy even the business people who want to balance their approach to profits with accountability to the public.

In California, Earle used Butler’s decision to open the door to win a massive public nuisance suit. This was  a $1.15 billion award to long thwarted  complainants in 10 California counties who argued that lead paint in their pre-1978 residences were known toxins to the active lead paint manufacturers of the time. The list of shared guilt includes many of the same players as Wisconsin cases -- Sherwin-Williams Co., DuPont, Atlantic Richfield and NL Industries (Dutch Boy paint, which has partly conceded, actually settling many claims in Wisconsin).  For this $1.15 billion victory, Californians recognized Earle and his team as lawyer of the year for 2014.  

In that decision (perhaps a prelude to more) historic documents deepened proof that the companies long knew yet marketed toxic products. This  included memos urging stores to keep lead paint out front in sales pitches and one saying the public wouldn’t care  since “most of the houses would be occupied by the colored and Puerto Ricans.”

In those times, the same companies “owned the mines, the smelters, the paint stores so it would affect their profits across the board,” Earle told me.

“Think of it this way,” he explained. “If ten manufacturers pollute a body of water with the same toxic chemical and hundreds of thousands of people are injured, should all the culpable companies be given immunity from liability simply because each individual victim cannot identify which?   [In the past] the tradition of tort law protected the  companies from any blame and transferred the cost of the damages onto the backs of the taxpayer.”

Earle bluntly believes Butler was punished for “legal heroism.”

While fuming in interviews about the lead paint ruling and Butler’s opposition to extreme financial caps on jury awards in medical malpractice cases, WMC actually downplayed business related rulings that the voters might applaud – such as Butler leading a high court majority to uphold a jury’s $94 million punitive damages award to widows and families against Mitsubishi in the giant crane collapse at Miller Park in 1999 that killed three iron workers. (A statue of remembrance reminds the public of the tragedy as they enter the park). 

The WMC ads and other third party ads of growing viciousness from Club for Growth and particularly the  Coalition for America's Families (nearly $500,000 in lurid crime ads)  played most heavily on the public misconception that the supreme court deals directly with criminals rather than issues like admissible evidence and liability procedures. 

But the worst and most successful lie, relying on unstudied citizenry swayed by throat-clench "law and order” rhetoric and racist stereotypes, came from his opponent, a state judge, Michael Gableman. The April voters to their everlasting shame ate up this “Loophole Louie” slur that crowded the airwaves with a ferocity that negated the campaigning in Butler’s favor. 
  
Today Gableman is the bombastic bullfrog on the high court, the buffoon relegated to easy rulings or obviously partisan platitude cases.  (Not just my opinion but those of many seasoned observers who speculated that the other justices were too smart to be out front in such hyperbolic rulings as the John Doe case.)  

In that 2008 campaign, with well over 4,000 radio and TV ads against Butler, it was Gableman’s untruth that got the most media mileage (he was after all, a judge and wouldn’t blatantly invent, would he?), reaching falsely back to Butler’s early career as a public defender. 

“It’s being compared to the Willie Horton ad from the 1988 presidential campaign,” reported  one 2008 contemporary fact-checking account, detailing how the contents did Horton one better by featuring side by side two black men – one smiling justice, one glaring rapist, both in black and white images compared to the full color ruddy plump conservative. 

“This ad falsely implies that Butler was responsible for freeing the rapist and allowing him to commit another sexual assault,” the report detailed. “Actually, Butler failed to win the man’s release as public defender. The rapist served his sentence and didn’t commit his next crime until he had been paroled. . .  So Butler didn’t ‘find a loophole’ as this ad claims [video of ad included in the link]. He convinced the appeals court that the trial judge had allowed the jury to hear prejudicial information, which is just what appeals lawyers are supposed to do.”

Gableman was excoriated by ethical experts from all camps for the ad and ever since he has been dodging censure, which is easier with a justice title and right-wing money and politicians to watch your back.


The article from the era also described this:  “A second ad, sponsored by a business trade group [WMC], says Butler ‘almost jeopardized’ a murder prosecution. But in fact, Butler was the sole dissenter in a 6-1 verdict” about evidence.

And just this September 9, his dissent was vindicated in the 7th District order of a new trial for Mark Jensen. 

“The letter from the grave,” Butler chuckled in a recent interview. “Most of the money spent by independents on radio and TV was about this case.”

But all Butler argued was to disallow the “letter from the grave” in the Jensen murder trial, where it was wielded mightily to convict him. So this was never an argument about guilt or innocence in the poison death of Jensen’s wife, but just about inadmissible evidence in a domestic situation. Later courts have all agreed with Butler.

State-paid lawyers were ordered to embrace that old WMC nostrum and spent big taxpayer money to fight for the "letter from the grave" as it was used in the trial, even after a federal judge vacated the Jensen conviction in 2013 along the grounds Butler argued.

The 7th appeals court panel this month confirmed the conviction should be voided,  leaving the state with the options of appeal to the full court or the US Supreme Court (both doubtful), freedom for Jensen or a new trial.

We’re not done with this litany of vindication for Butler because other ads dragged out the Ralph D.  Armstrong murder case to label Butler “soft on crime” for “leading the high court” to vacate his 1981 murder conviction.

But it was clear even in 2008 and more so now with the state’s own dismissal of all charges that there was overwhelming evidence of prosecutorial misconduct and false DNA evidence. Armstrong’s freedom was developed by the Innocence Project and pointed the way to another culprit.  This case is now called without quotes an “unlawful homicide conviction” in news stories this May when the federal appeals court allowed Armstrong, who spent 29 years in prison, to sue the prosecutor and several lab workers for hiding “potentially exculpable evidence.”  So, it seems, Butler is not soft on crime but hard on evidence.

The attack on Butler didn’t end with Gableman’s close victory. It destroyed his earned path to high office.  Continuing right-wing enmity in the US Senate blocked three attempts by President Obama to name him a federal judge. 

It’s easy to blame his 2008 loss on an ignorant public led by their law and order fears, but let’s reserve much of the blame to the voters who stayed home, as so many do in these April elections, not realizing the price they pay at the local and judicial level for decades into the future. Many of the educated and supposedly thoughtful citizenry saw that filthy black and white ad -- it was everywhere -- but apparently weren’t disgusted enough to vote. A representative democracy still depends on who turns out.

Butler's law firm portrait

Maybe that’s why Butler today doesn’t foam at the mouth as many of his friends and supporters do about what was done to him.

He’s still a busy lawyer in Milwaukee for the nation’s largest minority-owned law firm, Gonzalez Saggio & Harlan, and an active student of judiciary developments. A robust 63 years of age, he is regularly courted to return to elected office. (Editor's Note: In May 2016 Butler became attorney at  DeWitt Ross & Stevens Law Firm.)

Butler is well aware -- from lead paint to Miller Park to criminal case lies -- how thoroughly he has been vindicated.

Though denied the bench for years, think of this. While  most of the remaining Wisconsin high judiciary has fallen into disrepute and nationwide ridicule, it is his reasoning and decisions that continue to earn nationwide respect and influence.

When asked recently how he felt about it all, he simply responded:

“I lost my job for doing my job.” 

About the author: Noth has been  a professional journalist since the 1960s, first as national, international and local news copy editor at The Milwaukee Journal, then as an editor for its original Green Sheet, also  for almost two decades the paper’s film and drama critic. He also created its Friday Weekend section and ran Sunday TV Screen magazine and Lively Arts as he became the newspaper’s senior feature editor. He was tapped by the publishers of the combining Milwaukee Journal Sentinel for special projects and as first online news producer before voluntarily departing in the mid-1990s to run online news seminars and write on public affairs and Internet and consumer news. From 2002 to 2013 he ran the Milwaukee Labor Press as editor. It served as the Midwest’s largest home-delivered labor newspaper, with archives at milwaukeelabor.org.  In that role he won top awards yearly until the paper stopped publishing in 2013. His investigative pieces and extensive commentaries are now published by several news outlets as well as his culture and politics outlets known as Dom's Domain.  He also reviews theater for urbanmilwaukee.com.