Christian Schneider

Author, Columnist

The Press Begins to Turn

In recent weeks, I have adopted a Grandpa Simpson-esque persona, complaining bitterly about what the local media chooses to cover. I\’ve especially been critical of papers who rail against about mudslinging in campaigns, then choose to cover nothing but mudslinging in campaigns.

Yet today, like a ray of light, I caught this article in the Wisconsin State Journal:

A Ruling on Lead Paint Looms Over Wis. Justice\’s Campaign

MADISON, Wis. (AP) No ruling in Justice Louis Butler\’s tenure on the Wisconsin Supreme Court has generated more debate than one he wrote in 2005 on lead paint.

Butler ruled that a boy who ingested lead-based paint chips at two Milwaukee homes could sue several companies even though he could not prove which one made the product that left him with mental disabilities.

Companies were aware of the dangers of a lead pigment used in paint as far back as 1904 but continued marketing their products through the 1970s, he wrote for a 4-2 majority.

As a result, the entire industry can be sued for their role in polluting millions of U.S. homes with toxic paint. Otherwise, children like Steven Thomas, now 17, would have no way to seek remedies against the makers of the decades-old paint that gave them lifelong health problems, Butler reasoned.

The ruling, the first of its kind against the industry nationwide, set off a debate that continues to reverberate as Butler seeks a 10-year seat on the high court. He references the case on the campaign trail as he touts his record of holding big businesses accountable for wrongdoing.

(The link is to a Minneapolis TV station that ran the same article, but it did appear in the Local Section of the State Journal with a different title.)

Finally, we are starting to get reporting in the Wisconsin Supreme Court race that actually reflects what the judicial philosophies of the candidates might be, and how they might rule on future cases. So kudos to Ryan Foley at the Associated Press for putting this piece together. And for those who think I\’m digging this article merely because it\’s critical of Butler, I welcome any substantive criticism of Mike Gableman, as long as it pertains to his actual record.

Lo and behold, the State Journal also printed this article today:

Budget plans may dig bigger hole for future

The competing solutions to repair the state \’s broken budget can be summed up in four words, an independent report has found: Spend now, pay later.

When the Legislature passed the two-year budget in October, fiscal analysts projected a gap between estimated revenues and expenses in the next budget of $896 million.

The faltering economy has since lowered projections of tax money the state will receive, forcing policymakers to revisit the current budget.

But two of the proposed fixes add to the problems down the road, according to the report by the Legislature \’s nonpartisan budget office.

Democratic Gov. Jim Doyle \’s plan increases the potential shortfall in the next budget by $520 million, to $1.42 billion, the report found. A plan by the Republican-controlled Assembly raises the deficit by $753 million, to $1.65 billion.

This article gets it exactly right – it exposes the fraud that both Governor Doyle and the Assembly are trying to perpetrate on the Wisconsin public with their respective budget bills.

So while the State Journal has deserved criticism in the past, it certainly merits praise when it gets it right. Here\’s hoping they continue this winning streak.

Side note: Favorite Grandpa Simpson quote:

(Writing letter:) Dear Mr. President, There are too many states nowadays. Please eliminate three.
P.S. I am not a crackpot.

Side Side note:

In discussing the lead paint issue, Butler draws the following comparison:

Butler said over-the-top attacks on the ruling by business interests have hurt Wisconsin\’s economy while the ruling itself has not. He compares the case to 10 people putting poison in a water well. When someone gets sick after drinking the water, all of them say, \’\’Sure, our poison is in the well, you can\’t prove mine hurt you.\’\’ But they all knowingly contributed to the risk to the public.

Actually, that\’s a pretty dramatic misrepresentation of the opinion in Thomas v. Mallet, the lead paint case. Butler\’s hypothetical presumes 10 people are all contributing poison to a well. Under the Court\’s new \”risk contribution\” theory as described in Thomas, if only three of those people were pouring poison in the well, the other seven could be found liable whether or not they ever poured any poison in the well during the entire life of the well.

Says former Supreme Court justice Diane Sykes about Thomas:

As extended in Thomas, “risk contribution” theory relieves the plaintiff of the requirement of proving causation, allowing recovery against manufacturers not because of any specific factual link to the plaintiff’s injury but because each contributed to a general risk. The burden is placed on the manufacturer to prove that it did not produce or market lead paint during the relevant time period or in the relevant geographic marketplace. As a factual matter, this manufacturer burden of exculpation is nearly impossible to carry because the court made it clear that the relevant time period is not the time period of the plaintiff’s exposure but the entire time period that the houses with lead paint existed—a period spanning nearly eight decades.

4 Comments

  1. I included the Butler/Lead Paint AP piece in this morning’s FoxPolitics News – and was interested to see you opine that the article favored Judge Gableman. The two paragraphs below indicate that the court’s decision indeed may not have been so injurious to business. To the average reader, they nullified any suggestion of negative policy-making by Justice Butler.
    “Nearly three years later, the dire predictions have not come to pass. A jury ruled against Thomas last year. His attorney, Peter Earle, said he is the only lawyer to file a lead paint claim since the ruling.

    “And the state had the 10th best legal climate for businesses in 2007, up from 17th in 2005, according to the U.S. Chamber of Commerce Institute for Legal Reform.”

  2. Jo,

    At this point, I really don’t care whether an article favors one candidate or another. I do, however, think it is a step in the right direction for media outlets to discuss the things that actually matter when choosing a Supreme Court justice. If there are facts beneficial to Louis Butler, then so be it. He should be able to tell his side.

  3. Is it important to note that in the plaintiff lost in the Thomas case?

  4. So we’re supposed to be comforted by the fact that our lower courts have more sense than our Supreme Court?

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