Tim Burns keeps liberal views prominent in Wisconsin Supreme Court while both sides blanch at unorthodox style

MADISON - Tim Burns is doing what state Supreme Court candidates have long avoided — telling voters what he thinks of the issues of the day.

He fears the voter ID law disenfranchises minorities.

He believes the state's $3 billion incentive package for Foxconn Technology Group is a raw deal for taxpayers.

And Burns — who is advertising that he's a Democrat in the officially nonpartisan race — thinks the state’s high court has titled its decisions to corporations instead of the average person.

This isn’t normal. Typically, court candidates avoid overtly stating their political affiliation or directly talking about issues that might come before them as justices — although they often provide hints about their leanings.

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Burns contends the traditional approach isn’t fair to voters and has contributed to liberals losing court races most of the time over the past decade. His opponents say his method of campaigning raises questions about his ability to be impartial and would bar him from hearing certain cases.

Burns is an attorney in the Madison office of the national law firm Perkins Coie who specializes in suing insurance companies. His opponents are Milwaukee County Circuit Judge Rebecca Dallet and Sauk County Circuit Judge Michael Screnock.

A Feb. 20 primary will narrow the field to two for the April 3 general election.

Dallet has been courting liberal and moderate voters while Screnock has cast himself as a conservative. They are both critical of Burns’ campaign style.

“It’s not our tradition and it’s not our tradition for a good reason,” Screnock said in an interview. “The judiciary was never intended to be a political body.”

"I think he’s crossed the line multiple times and signaled how he would rule on myriad issues that could come before the court,” Dallet said in a statement.

Despite their criticisms, Dallet and Screnock have not entirely turned their backs on partisanship. Like Burns, Dallet spoke at the state Democratic Party convention last year. Screnock has hired GOP consultants and is getting backing from the state Republican Party.

Burns says he wants to be straight with voters — and argued his opponents want to dodge questions.

“I made my political views clear because I think voters deserve candor when you vest people with this much power,” he said in an interview.

University of Minnesota Law School professor Herbert Kritzer said he does not think Burns’ identifying himself as a Democrat would have much of an effect on the race because Wisconsin Supreme Court races have been politicized for so long that voters usually have a sense of the partisan support candidates are receiving.

“Wisconsin until 25 years ago had an extremely strong nonpartisan tradition and that has been dissipated, to put it mildly,” said Kritzer, who formerly was a professor at the University of Wisconsin Law School and has written papers comparing the high courts in Minnesota and Wisconsin.

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Screnock said Burns has been so critical of corporations and the wealthy that he didn’t know how Burns could be impartial in cases involving them. He expressed similar sentiments about Dallet over comments she has made.

“I am concerned about the way both my opponents are campaigning,” Screnock said.

Specifically, Screnock questioned how Dallet could hear future cases on water quality or how legislative lines are drawn because of comments she has made on those issues. Screnock as an attorney represented businesses in environmental cases and worked on the team that helped Wisconsin Republicans draw congressional and legislative districts.

Dallet questioned whether Burns could hear cases involving Walker because of his attacks on the governor.

Burns has “made it clear that there are individuals and parties that shouldn’t expect to get a fair shake in front of him, and that reduces confidence in the system,” Dallet said in her statement.

Dallet has shifted her approach in recent months. Last summer, Dallet declined to say who she voted for in the 2016 presidential election, but recently debuted an ad that says President Donald Trump has “attacked our civil rights.”

“She’s now turned to attacking our sitting president on the path to a seat on the Supreme Court. She clearly made a switch,” Screnock said.

Dallet defended her decision to go after Trump.

“I have zero problem criticizing the behavior of the president,” she said in her statement. “Government-by-tweet is a terrible idea.”

Dallet has found fault with some of the same state Supreme Court decisions that Burns has, such as the ones upholding limits on collective bargaining, sustaining the state's voter ID law and ending a John Doe investigation of Walker’s campaign. She said there is a difference between talking about cases that have already been decided and those that could come before the court in the future.

“What I haven’t been doing, and what progressive people are truly distressed by, is the politicizing of our courts," she said in her statement. "The right-wing has been doing it for years. And now Tim Burns is out here validating that."

Burns said he thinks Dallet has altered her message to voters in response to his campaign but isn’t sure where she stands. He acknowledged she has criticized some of the same decisions he has, but noted she endorsed Patience Roggensack — now the court's conservative chief justice — in 2013.

“I don’t know what she is because she’s not exercising the type of candor I exercise,” he said of Dallet.

When it comes to the issues, Burns often talks much as a Democratic candidate for the Legislature would.

“I am deeply concerned that photo ID laws disproportionately affects people of color and folks who for instance are retired,” he said. “I’m deeply concerned that really does inhibit the notion of one person, one vote and the fact that we’re a democracy.”

Similarly, he says he is "deeply troubled" by the Foxconn deal.

He said he is happy to talk about how he leans on issues, but added he hasn’t committed to voting a particular way on cases that could come before the court.

“I don’t think I’ve gone too far once,” he said. “I haven’t pre-decided a concrete case.”

The U.S. Supreme Court in 2002 ruled that court candidates are free to talk about their views on issues. But the 5-4 decision by Justice Anton Scalia, a conservative icon, did not resolve another question — whether judges who talk about issues can sit on cases addressing those issues, said Kritzer, the law professor.

Candidates like Burns who talk about issues run the risk of having parties before them demand they step aside from cases if they are elected. Refusing to step aside could spark a dispute that could be taken up by the U.S. Supreme Court, he said.

“I have no clue how the (U.S.) Supreme Court would decide such a question,” he said.