Storms v. Action Wisconsin Inc.

• Decision Date: 30 July 2008
• Docket Number: No. 2006AP396.,2006AP396.
• Citation: 754 N.W.2d 480,2008 WI 110
• Parties: In the matter of attorneys fees in Grant E. STORMS, Plaintiff, v. ACTION WISCONSIN INC. and Christopher Ott, Defendants. James R. Donohoo, Appellant, v. Action Wisconsin, Inc. and Christopher Ott, Respondents-Petitioners.
• Court: Wisconsin Supreme Court

754 N.W.2d 480

2008 WI 110

In the matter of attorneys fees in Grant E. STORMS, Plaintiff, v. ACTION WISCONSIN INC. and Christopher Ott, Defendants.

James R. Donohoo, Appellant, v. Action Wisconsin, Inc. and Christopher Ott, Respondents-Petitioners.

No. 2006AP396.

Supreme Court of Wisconsin.

July 30, 2008.

¶ 1 PER CURIAM.

On June 5, 2008, this court issued a decision reversing a court of appeals' decision, which, in turn, reversed a circuit court judgment requiring Attorney James R. Donohoo to pay costs and attorney fees for filing and maintaining a defamation lawsuit that was found to be frivolous. Donohoo v. Action Wisconsin Inc., 2008 WI 56, ___ Wis.2d ___, 750 N.W.2d 739. The case was decided by a 4-3 vote, with Justice Bradley writing the majority opinion, in which Chief Justice Abrahamson, Justice Crooks, and Justice Butler joined. Justice Roggensack authored a dissent, in which Justice Prosser and Justice Ziegler joined.

¶ 2 Donohoo has filed a motion to vacate the decision based on the disqualification of Justice Butler by law.¹ The alleged grounds for disqualification are that Justice Butler accepted serial campaign contributions from Donohoo's opponent without disclosing those contributions to Donohoo, in violation of his pledge not to do so; that Justice Butler appeared at a fund raiser for a political action committee (PAC) supporting lesbian, gay, bisexual and transgender (LGBT) rights;² and that Justice Butler obtained the endorsement of one of the attorneys for Action Wisconsin.

¶ 3 Based on the record before us and the applicable law, we conclude that the facts alleged by Donohoo do not support a finding that Justice Butler was disqualified by law from participating in this matter. Consequently, we deny Donohoo's motion.

I

¶ 4 Donohoo filed a defamation complaint on behalf of Grant E. Storms against Action Wisconsin and Christopher Ott, its executive director. Action Wisconsin filed an answer to the complaint and a motion for costs and attorney fees pursuant to Wis. Stat. §§ 802.05 and 814.025. The circuit court granted the motion, concluding that prior to filing the lawsuit Donohoo knew or should have known that neither the facts nor the law supported the claim of actual malice, which would have to be shown by clear and convincing evidence. The circuit court also concluded that Donohoo had failed to conduct a reasonable inquiry into the claim before filing the lawsuit and that Donohoo continued the lawsuit even though he knew or should have known that the claim was brought "without any reasonable basis in law or equity." The court of appeals reversed, concluding Donohoo did engage in a reasonable inquiry into the facts and law and that there were disputed issues of material fact regarding whether there was actual malice. This court reversed, concluding that the circuit court did not err in determining that the defamation suit was frivolously commenced and continued.

¶ 5 Donohoo now asserts that he has discovered evidence that Justice Butler was disqualified by law from participating in this case because of his financial and personal interest in the outcome of the matter and his violation of supreme court rules. The memorandum in support of Donohoo's motion attaches a detailed chronology of events that Donohoo deems significant. That chronology, with minor editing, is as follows:

2/2/2006 Circuit court dismisses Donohoo's suit as frivolous. Action Wisconsin represented by Attorneys Lester Pines and Tamara B. Packard.

2/16/2006 Donohoo files notice of appeal. Action Wisconsin forms Fair Wisconsin as its PAC opposing Wisconsin's Marriage Protection Amendment in the 2006 election.

9/11/2006 Pines files motion for frivolous costs.

11/3/2006 Fair Wisconsin pays NGL Task Force $5,298. Fair Wisconsin transfers $27,000 and all of its remaining debt to Action Wisconsin.

12/16/2006 Fair Wisconsin transfers $27,590.66 cash and related debt to Action Wisconsin, Inc. Action Wisconsin changes its name to Fair Wisconsin.

5/30/2007 Appeals court reverses order and judgment.

6/29/2007 Pines files notice of intent to appeal.

6/30/2007 Peter Bock, Fair Wisconsin board member, contributes $125 to Butler's campaign. Butler does not disclose contribution.

7/13/2007 Pines submits petition for supreme court review.

7/23/2007 Pines contributes $300 to Butler's campaign.

8/26/2007 Butler speaks at LGBT PAC garden party.

9/11/2007 Supreme court accepts review.

10/9/2007 Tamara Packard, Action Wisconsin attorney, files motion for miscellaneous relief.

10/15/2007 Oral arguments assigned.

11/28/2007 Butler announces he will advise all parties of having accepted contributions. Butler previously announced that while he would not accept campaign contributions from parties to cases before the court, he would accept contributions from attorneys representing parties in cases, but that he would disclose those contributions. Media reports indicate Butler did not immediately disclose that an attorney appearing before the court sat on his campaign finance committee and contributed $500 to his election campaign.

12/3/2007 Butler sends letter advising parties of the Pines contribution.

12/7/2007 Ruth Irvings, Fair Wisconsin board member, contributes $100 to Butler's campaign. Butler does not disclose contribution.

1/15/2008 Oral argument heard.

1/22/2008 Wisconsin LGBT PAC issues endorsement of Butler for Supreme Court.

1/28/2008 Ruth Irvings contributes $1,000 to Butler campaign. Butler fails to disclose contribution.

2/7/2008 Butler concurs in decision prohibiting municipal governments and legislators from joining as parties in Helgeland v. Wisconsin Municipalities, 2008 WI 9, 307 Wis.2d 1, 745 N.W.2d 1, a case brought by State employees relating to State benefits.

2/19/2008 Fair Wisconsin announces absentee ballot drive for supreme court race and announces absentee ballot effort for spring general election.

3/24/2008 Butler gives radio interview in which he talks about appearing at LGBT garden party.

3/25/2008 Tamara Packard writes editorial in Wisconsin Gay News from Quest endorsing Butler for supreme court.

¶ 6 Donohoo asserts that on November 27, 2007, the Milwaukee Journal-Sentinel reported that Justice Butler stated he would refuse donations from parties that had cases before the court but that he would accept donations from attorneys representing parties and would disclose those contributions to litigants. Donohoo acknowledges that on December 3, 2007, Justice Butler sent him a letter disclosing Lester Pines' $300 contribution and informing Donohoo that the contribution would not affect Justice Butler's impartiality in his participation in the case.³ Donohoo did not raise any objection to Justice Butler's participation in the case after receiving the letter.

¶ 7 Donohoo further asserts that approximately two weeks before this court issued its decision, he learned that on March 28, 2008, Wisconsin Family Action, Inc., had filed a formal request for investigation with the Wisconsin Judicial Commission, charging that Justice Butler had misled citizens and impaired his ability to render fair and impartial decisions in cases affecting gay rights and marriage.

¶ 8 According to Donohoo, the document filed with the Judicial Commission by Wisconsin Family Action stated that between June 2007 and January 2008, Peter Bock and Ruth Irvings, two of the twelve board members of Fair Wisconsin, Action Wisconsin's PAC, made contributions to Justice Butler's election campaign. Donohoo makes no allegation that Justice Butler was aware of these contributions or that he was aware that Bock or Irvings had any connection to or interest in this case. Donohoo asserts that by accepting serial contributions from a litigant after he had vowed not to do so, and by failing to disclose the contributions, Justice Butler deprived Donohoo of the right to object to Justice Butler's participation in the case based on the contributions.

¶ 9 Donohoo also alleges that on August 26, 2007, Justice Butler appeared at a fund raiser for the Center Advocates' PAC, which supports LGBT equality and the passage of legislation benefiting LGBT people and their families. Donohoo alleges that the PAC's sole purpose is to advance the cause of LGBT equality, including same sex marriage. He also asserts that the PAC was working to help re-elect Justice Butler.

¶ 10 Donohoo asserts that while at the fund raiser Justice Butler avowed his support for LGBT equality and "lent the dignity of his office to help the group raise money." Donohoo also says that by appearing at the fund raiser and delivering a speech "Justice Butler joined himself at the hip with the PAC, and consequently also to Action Wisconsin," and "aligned himself with Wisconsin's premiere homosexual rights PAC and premiere radical homosexual advocacy group ... and their common goals and agenda." Donohoo also asserts that by appearing at the fund raiser Justice Butler "tipped his hand regarding his personal bias."

¶ 11 Donohoo also alleges that on March 31, 2008, Action Wisconsin posted an entry on its Web site indicating that it had sent surveys to Justice Butler and his opponent and that only Justice Butler responded to the survey. Donohoo asserts that in his response to the survey Justice Butler said he had friends or family who were LGBT. When asked if that relationship has affected the way he saw injustices facing the community, Justice Butler said, "I respectfully decline to express an opinion on any issue where the court may be required to rule." Donohoo asserts this response verified that Justice Butler knew his speech at the fund-raising "garden party" in support of LGBT equality was inappropriate and unethical.

¶ 12 According to a transcript of a March 24, 2008, radio interview attached to the memorandum in support of Donohoo's motion, when asked about his appearance at the fund raiser Justice Butler said, "I spoke at the organization about my own candidacy for the...