Louis Butler

On Criminal Justice

• State v. Bannister (2007)

Justice Louis B. Butler, Jr. dissented from the majority opinion, instead concluding that a criminal defendant who was convicted by a jury of being selling illegal narcotics was entitled to a new trial, because it was mentioned during the trial that a recipient of the illegal narcotics had died of a drug overdose from their ingestion, and that this information likely had an unduly prejudicial effect on the jury.

• State v. Knapp (2005)

Justice Butler authored the majority opinion, which concluded, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser, that Article I, Section 8 of the Wisconsin Constitution provided greater protection to criminal defendants than does the identically worded Fifth Amendment to the United States Constitution. In so holding the Majority found that a bloody sweatshirt was inadmissible as evidence in a murder case because the defendant told police officers of its location prior to being read his Miranda rights. The Court stated "[w]e conclude that the fruit of the poisonous tree doctrine applies under the circumstances of this case under Article I, Section 8 of the Wisconsin Constitution. Where physical evidence is obtained as the direct result of an intentional violation of Miranda rights, we conclude that Wisconsin Constitution requires that the evidence must be suppressed.

• State ex rel. Coleman v. McCaughtry (2006)

Justice Butler concurred in the majority opinion, and wrote a separate concurring opinion, noting that a prisoner was entitled to raise the argument that he had recieved ineffective assistance of counsel at his trail sixteen (16) years after that trial was over.

On Class Actions & Class Action Abuse

• Kolupar v. Wilde Pontiac Cadillac, Inc. (2007)

Justice Butler authored the majority opinion, which, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser, concluded that Retail buyer of used automobile was entitled to award of "reasonable costs," in pursuing claim under statute prohibiting unsavory practices in the retail sale or lease of a motor vehicle, and not just “taxable costs” as specified in the rule actually governing the matter in civil actions, even though such costs would possibly exceed the total recovery under the statute. The dissent heavily criticized the Majority decision, noting that it ignored the plain-language of the statute in order to obtain a plaintiff-friendly result.

• Thomas v. Mallet (2005)

In this lead-paint liability case from 2005, Justice Butler authored the 4-2 majority opinion (concurring Justices Abrahamson, Bradley and Crooks), over the vigorous dissents of Justices John P. Wilcox and David Prosser (Justice Roggensack did not participate). In the decision, the court ruled:

(1) that because [the plaintiff] cannot prove the specific type of white lead carbonate he ingested, he need only prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses' existence; and

(2) Once [the plaintiff] makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. The Majority further opined that, if relevant records do not exist that can substantiate either defense, “we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers].”

"The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Even though the injury in this case is tragic, the plaintiff cannot demonstrate that he was lead poisoned as a result of white lead carbonate, much less the type of white lead carbonate produced by any of the respective defendants. More importantly, he cannot prove when the supposed white lead carbonate that allegedly poisoned him was manufactured or applied to the houses in which he was supposedly lead poisoned. However, none of these facts seem to matter to the majority."

QUOTES FROM THE MAJORITY IN THOMAS V. MALLET

• ON ALTERNATIVE REMEDIES AGAINST LANDLORDS: "While we agree with the Pigment Manufacturers that landlords are in the best position to contain the dangers of lead pigment in paint once the paint has been applied, landlords are not to blame for the fact that the lead pigment in the paint is poisonous in the first instance".

• ON THE COMMON LAW AND PRECEDENT: "Th[e] common law, however, is frequently refined by this court, consistent with the dynamic principle that “allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose.”

• ON THE COMMON LAW AND PRECEDENT: "Although there are those who champion rigid rules with clear delineations, the fact is that the “[c]ommon law is law subject to continuing judicial development, including abrogation.” Indeed, this process of continuing refinement is a vital component of judicial power. If in the name of certainty this court simply deferred to the eras of days passed, we would “ succumb to a rule that a judge should let others long dead and unaware of the problems of the age in which he [or she] lives, do his thinking for him [or her].” (Citations omitted).

• ON IMPOSING LIABILITY ON INNOCENT BUSINESSES: "As a prefatory note... we recognize that cases involving lead poisoning stemming from lead pigment pose difficult problems. The entirely innocent plaintiffs may... never know or be able to prove with certainty which manufacturer produced or promoted the white lead carbonate that caused the injuries. (citations omitted). The Pigment Manufacturers are faced with possible liability for white lead carbonate they may not have produced or marketed. As this court did in Collins, we again conclude 'that as between the plaintiff, who probably is not at fault, and the defendants, who may have provided the product which caused the injury, the interests of justice and fundamental fairness demand that the latter should bear the cost of injury.'"

• ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING 'DEEP POCKETS': "Second, as compared to Thomas, the Pigment Manufacturers are in a better position to absorb the cost of the injury. They can insure themselves against liability, absorb the damage award, or pass the cost along to the consuming public as a cost of doing business."

• ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING: "[T]he Pigment Manufacturers note that the paint Thomas allegedly ingested could have been applied at any time between construction of the two houses in 1900 and 1905 and the ban on lead paint in 1978. This significant time span greatly exceeds the nine-month window during which a plaintiff's mother would have taken DES, the Pigment Manufacturers note. Given that Collins attempted to strike a balance between assuring a DES plaintiff had a remedy and providing a realistic opportunity to each DES pill manufacturer to prove that it could not have caused the plaintiff's harm (by establishing its DES could not have reached the mother during her pregnancy), the Pigment Manufacturers contend that Collins should not be extended given that they have no reasonable ability to exculpate themselves. We recognize that the window during which the possible injury causing white lead carbonate was placed in a house that eventually harmed Thomas is drastically larger than a nine-month window for pregnancy. However, the window will not always be potentially as large as appears in this case."

On Employer and Employee Rights

• Stoughton Trailers, Inc. v. Labor & Industry Review Commission (2007)

Justice Butler authored the majority opinion, which concluded, over vigorous dissent, that Wisconsin employers were required to extend "clemency" to employees who were absent from work for medical reasons, even where many of the absences are unrelated to medical reasons. In doing so, the Majority effectively eviscerates any employer attendance requirements. According to the dissent, authored by David T. Prosser, the Majority's rule "requires an employer to suspend its attendance requirements even if an employee fails to submit medical documentation confirming that his absence was disability related."

Regulation

• Thomas v. Mallet (2005)

In this lead-paint liability case from 2005, Justice Butler authored the 4-2 majority opinion (concurring Justices Abrahamson, Bradley and Crooks), over the vigorous dissents of Justices John P. Wilcox and David Prosser (Justice Roggensack did not participate). In the decision, the court ruled:

(1) that because [the plaintiff] cannot prove the specific type of white lead carbonate he ingested, he need only prove that the Pigment Manufacturers produced or marketed white lead carbonate for use during the relevant time period: the duration of the houses' existence; and

(2) Once [the plaintiff] makes a prima facie case under either claim, the burden of proof shifts to each defendant to prove by a preponderance of the evidence that it did not produce or market white lead carbonate either during the relevant time period or in the geographical market where the house is located. The Majority further opined that, if relevant records do not exist that can substantiate either defense, “we believe that the equities of [white lead carbonate] cases favor placing the consequences on the [Pigment Manufacturers].”

"The end result of the majority opinion is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff's injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market. Even though the injury in this case is tragic, the plaintiff cannot demonstrate that he was lead poisoned as a result of white lead carbonate, much less the type of white lead carbonate produced by any of the respective defendants. More importantly, he cannot prove when the supposed white lead carbonate that allegedly poisoned him was manufactured or applied to the houses in which he was supposedly lead poisoned. However, none of these facts seem to matter to the majority."

QUOTES FROM THE MAJORITY IN THOMAS V. MALLET

• ON ALTERNATIVE REMEDIES AGAINST LANDLORDS: "While we agree with the Pigment Manufacturers that landlords are in the best position to contain the dangers of lead pigment in paint once the paint has been applied, landlords are not to blame for the fact that the lead pigment in the paint is poisonous in the first instance".

• ON THE COMMON LAW AND PRECEDENT: "Th[e] common law, however, is frequently refined by this court, consistent with the dynamic principle that “allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose.”

• ON THE COMMON LAW AND PRECEDENT: "Although there are those who champion rigid rules with clear delineations, the fact is that the “[c]ommon law is law subject to continuing judicial development, including abrogation.” Indeed, this process of continuing refinement is a vital component of judicial power. If in the name of certainty this court simply deferred to the eras of days passed, we would “ succumb to a rule that a judge should let others long dead and unaware of the problems of the age in which he [or she] lives, do his thinking for him [or her].” (Citations omitted).

• ON IMPOSING LIABILITY ON INNOCENT BUSINESSES: "As a prefatory note... we recognize that cases involving lead poisoning stemming from lead pigment pose difficult problems. The entirely innocent plaintiffs may... never know or be able to prove with certainty which manufacturer produced or promoted the white lead carbonate that caused the injuries. (citations omitted). The Pigment Manufacturers are faced with possible liability for white lead carbonate they may not have produced or marketed. As this court did in Collins, we again conclude 'that as between the plaintiff, who probably is not at fault, and the defendants, who may have provided the product which caused the injury, the interests of justice and fundamental fairness demand that the latter should bear the cost of injury.'"

• ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING 'DEEP POCKETS': "Second, as compared to Thomas, the Pigment Manufacturers are in a better position to absorb the cost of the injury. They can insure themselves against liability, absorb the damage award, or pass the cost along to the consuming public as a cost of doing business."

• ON IMPOSING LIABILITY ON INNOCENT BUSINESSES / PURSUING: "[T]he Pigment Manufacturers note that the paint Thomas allegedly ingested could have been applied at any time between construction of the two houses in 1900 and 1905 and the ban on lead paint in 1978. This significant time span greatly exceeds the nine-month window during which a plaintiff's mother would have taken DES, the Pigment Manufacturers note. Given that Collins attempted to strike a balance between assuring a DES plaintiff had a remedy and providing a realistic opportunity to each DES pill manufacturer to prove that it could not have caused the plaintiff's harm (by establishing its DES could not have reached the mother during her pregnancy), the Pigment Manufacturers contend that Collins should not be extended given that they have no reasonable ability to exculpate themselves. We recognize that the window during which the possible injury causing white lead carbonate was placed in a house that eventually harmed Thomas is drastically larger than a nine-month window for pregnancy. However, the window will not always be potentially as large as appears in this case."

• Wisconsin Auto Title Loans, Inc. v. Jones (2006)

Justice Butler concurred in the Majority opinion, but wrote separately. In this separate opinion, Justice Butler lables auto title companies as "predatory lenders," and notes that the interest rates the charge to consumers with low credit ratings are "ridiculous, unreasonable and unconscionable."

• Kolupar v. Wilde Pontiac Cadillac, Inc. (2007)

Justice Butler authored the majority opinion, which, over the vigorous dissents of Justices John P. Wilcox and David T. Prosser, concluded that Retail buyer of used automobile was entitled to award of "reasonable costs," in pursuing claim under statute prohibiting unsavory practices in the retail sale or lease of a motor vehicle, and not just “taxable costs” as specified in the rule actually governing the matter in civil actions, even though such costs would possibly exceed the total recovery under the statute. The dissent heavily criticized the Majority decision, noting that it ignored the plain-language of the statute in order to obtain a plaintiff-friendly result.

On Tort Reform

• Ferdon v. Wisconsin Patients Compensation Fund (2005)

Justice Butler concurred in the Majority Opinion, written by Justice Shirley S. Abrahamson, but wrote a separate concurring opinion as well. The Majority held, in a medical malpractice action, that the recently-passed $350,000 cap, adjusted for inflation, on noneconomic damages in medical malpractice actions not involving wrongful death of the patient (1) was not rationally related to legislative objective of compensating victims fairly; (2) was not rationally related to legislative objective of lowering medical malpractice insurance premiums;(3) statute was not rationally related to legislative objectives of keeping Wisconsin Patients Compensation Fund's annual assessments to health care providers at low rate and enabling Fund, which provided excess liability coverage for health care providers, to operate on sound financial basis; (4) was not rationally related to legislative objective of lowering overall health care costs for consumers of health care; and (5) was not rationally related to legislative objective of ensuring quality health care by creating an environment in which health care providers were likely to move into, or less likely to move out of, Wisconsin.

QUOTES FROM OPINION OF JUSTICE CROOKS (LOUIS B. BUTLER, JR. CONCURRED)

* ON THE CONSTITUTIONALITY OF CAPS ON NON-ECONOMIC DAMAGES: "* * * I am convinced that the current cap on noneconomic medical malpractice damages is unconstitutional. The stated legislative objectives, when reviewed in accord with a rational basis test, provide insufficient justification for that cap under the equal protection clause and, further, the $350,000 cap is too low to satisfy the right to a jury trial as guaranteed in Article I, Section 5, when considered in conjunction with the right to a remedy in Article I, Section 9 of the Wisconsin Constitution."

* ON DEFERENCE TO THE LEGISLATURE: "In Wisconsin, the history behind the legislature's setting of caps for noneconomic damages in medical malpractice actions demonstrates arbitrariness, and leads to a conclusion that a rational basis justifying the present cap was, and is, lacking. When Wis. Stat. ch. 655 was first enacted in 1975, there was no cap on noneconomic damages, but a $500,000 conditional cap that could be triggered if the Wisconsin Patient Compensation Fund's cash-flow was in jeopardy. Then, in 1986, the legislature set the cap at $1,000,000. This $1,000,000 cap remained in effect until 1991, when a sunset provision became effective. There was no cap on noneconomic damages from 1991 until the legislature passed the current statutory cap of $350,000 in 1995. Thus, the caps changed from nothing, to $1,000,000, back to nothing, and finally to $350,000 over the course of 20 years."

*ON DEFERENCE TO THE LEGISLATURE: "The legislative history behind this current cap further reveals no rational basis justification for settling on the amount of $350,000. The bill involved, as originally drafted, set a cap on noneconomic damages at $250,000. However, a number of alternatives were suggested throughout the legislative process, ranging from $1,000,000, to nothing, to $250,000, to $350,000. The final act set the cap at $350,000, without providing any explanation for the jump from the original $250,000. It appears quite clear that the legislature settled on an amount for the noneconomic damage cap without a rational basis for doing so. It seems as if the $350,000 figure was plucked out of thin air. Such an arbitrary cap “is violative of the equal protection clause in the Wisconsin Constitution, since it unduly burdens medical malpractice claimants without a rational basis that justifies ...” its stated legislative objectives. ."

*ON CREATING NEW CONSTITUTIONAL RIGHTS: "I also conclude that this cap on noneconomic damages violates Article I, Section 5 of the Wisconsin Constitution when linked to Article I, Section 9 of the Wisconsin Constitution. Although the majority opinion does not fully address this issue, I conclude that these two provisions of the Wisconsin Constitution may be applied together to determine whether the noneconomic damages cap of $350,000 was set unreasonably low, thus making it unconstitutional on that basis as well."

*ON DEFERENCE TO THE LEGISLATURE: "In this case, the jury awarded Ferdon $700,000 in noneconomic damages. The circuit court, however, had no choice but to reduce these damages to $410,322-the equivalent of the $350,000 cap adjusted for inflation. Consequently, Ferdon lost a significant portion of the full damage award-more than 41 percent-as determined by the jury. The jury verdict for damages was reduced by $289,678 in light of the $350,000 cap. While I recognize that the legislature may place a statutory cap on noneconomic damages in medical malpractice actions, the cap cannot be set unreasonably low. If $1,000,000 was the appropriate figure for the cap in 1986, how can a $350,000 cap satisfy the constitutional requirements nine years later? “Such a low cap on noneconomic damages effectively denies plaintiffs the constitutional right to trial by jury under Article I, Section 5 of the Wisconsin Constitution]] and, in turn, to a remedy as guaranteed by Article I, Section 9 of the Wisconsin Constitution.”

*ON EQUAL PROTECTION UNDER THE LAW: I agree with the majority opinion that a statutory cap set too low may also violate the equal protection clause of the Wisconsin Constitution: “We have said that a statutory limit on tort recoveries may violate equal protection guarantees if the limitation is harsh and unreasonable, that is, if the limitation is too low when considered in relation to the damages sustained.”

*ON APPLYING OTHER STATE'S LAWS WHEN INTERPRETING THE WISCONSIN CONSTITUTION: Justice Butler relied upon decisions of the state Supreme Courts of Florida, Kansas, and Maine, finding that caps in their respective states violated their constitutions, to find that the particular ban at issue in this case violated the Wisconsin Constitution.