Walker's judges: R. Michael Waterman

"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. 

Name: R. Michael Waterman

Appointed to: St. Croix County Circuit Court

Appointment date: April 10, 2015 (elected to a 6-year term in April 2016)
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​Education:
            Law School – Hamline University
            Undergrad – Muhlenberg College
            High School – Eden Prairie High School

Legal employment:
           1995 - present – Attorney, Mudge, Porter Lundeen and Seguin, S.C., Hudson, WI
           1990 - 1997 – Adjunct professor, Milliam Mitchell College of Law, St. Paul, MN
                    
​ Memberships:
          Office of Lawyer Regulation, District 8 Investigation Committee
         State Bar of Wisconsin
         St. Croix Valley Bar Association
         Minnesota State Bar Association
        Wisconsin Defense Counsel
        Defense Research Institute
        U.S. District Court, Western District of Wisconsin
        U.S. District Court, Eastern District of Wisconsin
        U.S. Court of Appeals, Seventh Circuit
        U.S. District Court, District of Minnesota
       
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: General practitioner with emphasis on civil litigation, mostly insurance defense, and appeals. Also handles cases involving real estate disputes, business transactions and contracts. Handled other types of cases, including criminal cases, earlier in his career.
 
Number of cases tried to verdict or judgment:  Jury, 15; non-jury, 90; arbitration, 10; administrative bodies, 20.

Cases on appeal: 74 cases fully litigated, meaning they were briefed and an opinion was issued. This number does not include cases that ended through a no merit report, dismissal for lack of jurisdiction, or voluntary dismissal because of a settlement.

List and describe the two most significant cases in which you were involved:

Linden v. Cascade Stone Co. (2005 WI)
I represented West Bend Mutual Insurance Company from the trial court through Supreme Court. West Bend Mutual and several others were sued by the Lindens, who alleged their new home was poorly constructed. The case confronted a recurring situation where plaintiffs would disregard contractual remedies and sue contractors in tort. The Supreme Court affirmed the trial court 's ruling that the economic loss doctrine barred the Lindens ' tort claims.
 
Linden is significant because it had a visible and immediate impact on construction litigation, and it is frequently cited and relied upon by courts and practitioners. Linden prevents plaintiffs in construction disputes from suing in tort and making an end run around contractually bargained for performance standards and remedies. This gives strength and meaning to contracts where the risk of loss and associated costs can be bargained for and allocated between the parties. As a matter of public policy this is far preferable than forcing the public to subsidize a system in which plaintiffs make tort recovery despite choosing to forgo contract warranties in exchange for a lower price.
 
Marian C. Hawkins and Helen Berry Lloyd v. Brian E Bath, (Bankr. W .D. Wis. No. 06-223). I represented Marian Hawkins and Helen Lloyd, two sisters who were fraud victims of Brian Bath. Mrs. Hawkins and Lloyd were in their 80s when they opened accounts with Mr. Bath's financial services company. Both women entrusted Mr. Bath with their entire life savings and believed their money was invested in savings bonds and T-bills. Mr. Bath betrayed them by embezzling their money and eventually losing it in a high-risk real estate venture in Florida.
 
The case is significant for several reasons. Litigation was started when Mr. Bath filed for bankruptcy. The litigation uncovered a massive fraud, involving numerous victims besides my clients. The evidence obtained in discovery was handed over to state and federal authorities. State regulatory authorities revoked Mr. Bath 's licenses to sell insurance and financial services, and injunctions were issued to prevent him from obtaining licenses in other states. Federal law enforcement started an investigation. I secured a sizeable judgment against Mr. Bath, but it was over shadowed by the deaths of Mrs. Lloyd and Mrs. Hawkins, who lived their final days in despair and were never fully made whole.

Involvement in judicial, non-partisan or partisan political campaigns:
Katie Thurmes (D), St. Croix County Clerk of Court (2014). The candidate was my former legal assistant. I wrote letters to the editor, made phone calls to supporters, and donated money.
John Trojack (R), Minnesota House of Representatives (1996).
 Republican Party of Minnesota, precinct delegate (1988, 1996).

Please list all judicial or non-partisan candidates that you have publically endorsed in the last six years:
Hon. Eric J. Lundell (2014) - St. Croix County Circuit Court
Hon. Howard Cameron (20 14) - St. Croix County Circuit Court
Hon. Scott R. Needham (2012) - St. Croix County Circuit Court
Hon. Gregory A. Peterson (2005 & 2011) - Wisconsin Court of Appeals

Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application:
Hamline University Mock Trial Program, volunteer judge
Hudson Lions Club, President of the Sunrise Branch
State Bar of Wisconsin Mock Trial Program, volunteer judge
St. Croix County Circuit Court, volunteer mediator for small claims cases
St. Croix Valley Youth Court, youth mentor
St. Croix Valley Bar Association, free legal clinic volunteer attorney
Western Wisconsin Photography Club
Wild River Triathlon Club
YMCA of St. Croix Valley, board member
Youth baseball, soccer and basketball coach

Describe any pro bono legal work in the last five years:
Volunteer at the Free Legal Clinic of the St. Croix Valley Bar Association.
Volunteer mediator for the St. Croix County Circuit Court.
Member of the State Bar of Wisconsin Modest Means Pane, accepting cases on a pro bono or discounted-fee basis.
Member of the State Public Defender Assigned Counsel roster for appeals and other post-conviction relief.
Annually donate more than 50 hours of pro bono work to local non-profits, civic organizations, youth sports clubs and low-income persons.

Why I want to be a judge – Two words: public service. From an early age, I was taught to do well in school, work hard at a meaningful job, and if ever the opportunity presented itself, contribute through public service.
 
Public service is one of the highest callings. Everyone derives benefits from those who serve. Consequently, everyone should contribute back to society by serving at their highest and best capacity.
 
I have enjoyed the fruits of our great nation and state. They have allowed me to fulfill my educational and vocational goals. I have given back as a volunteer in a variety of functions, but I can have a greater impact as a judge.  If I am fortunate to be appointed judge, I will serve the community at my highest and best capacity, utilizing my education, nearly 20 years of legal experience and a lifetime of sensibility and good judgment.
 
I submit this application for judge with no agenda, except a commitment to the rule of law and a desire to serve the public.

Best Wisconsin or U.S. Supreme Court decision in the last 30 years – State ex rei. Ozanne v. Fitzgerald (2011)
 
The Supreme Court's decision in Ozanne is noteworthy for many reasons, but I will address the most salient. First, the Court had the courage and fortitude to end the extraordinary efforts to thwart the legislative process and enactment of Act 10. Despite lacking majorities in the Assembly and Senate, opponents of Act 10 resorted to ultra vire methods to derail the Act. The Court repudiated those tactics and cleared the way for duly enacted legislation to become law. In a lot of respects, I see Ozanne in the same scope as Bush v. Gore. Both cases put an end to the perpetual and divisive use of the courts to undermine the will of the majority and the rule of law.
 
The second reason why Ozanne is significant is because it respects the separation of powers and was an exercise of judicial restraint. The trial court invaded the province of the legislative branch by passing judgment over the internal operations of the legislature.  It then invaded the executive branch by enjoining the implementation of a law that was signed by the Governor. The Supreme Court correctly recognized this unlawful incursion and swiftly rectified it, despite strong opposition from within and outside the Court.
 
Lastly, Ozanne is significant because it reaffirmed the rule of law. The trial court was indifferent to Supreme Court precedent that prohibited courts from interfering in the legislative process. The Court's decision (and Justice Prosser's concurrence, in particular) renounced such disregard for the law. The Supreme Court got it right.

Worst Wisconsin or U.S. Supreme Court decision in the last 30 years – In the Interest of Jerrell C.J., (2005)
 
One of the worst Wisconsin Supreme Court decisions in the past 30 years is In the Interest of Jerrell C.J. ... because the majority legislated from the bench and invaded the province of the legislative and executive branches. Statewide policy was created by four justices, who were guided by little more than court briefs and a belief that they were acting for the common good.

The Jerrell case involved a 14-year-old whom police apprehended as a robbery suspect. The police questioned the boy for 5 1/2 hours without counsel or his parents. He eventually confessed to his involvement in the robbery. A unanimous court suppressed the boy 's confession because it was involuntary and coerced. If the Court stopped there, Jerrell would be unremarkable.

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When judges depart from text, the law becomes contrived, arbitrary and unreliable, all of which are unacceptable. -- St. Croix County Circuit Judge R. Michael Waterman

Under the guise of "superintending authority," four members of the Court pronounced new law. The majority required all future custodial interrogations of juveniles to be electronically recorded where feasible and without exception when questioning occurs at a place of detention. Interrogations that do not conform would be inadmissible.
 
The majority usurped the role of the legislative and executive branches of government by creating law. Although many police departments recorded interviews, legislation did not require it. This was a point of frustration for the majority. However, instead of staying within the confines of Constitutional responsibilities or calling for legislative action, the Jerrell majority took the matter into their own hands, bypassing the legislative process and creating law. The majority then invaded the province of executive authority by prescribing a particular law enforcement practice. The attorney general, police chiefs and other executives are responsible for determining police practices, not the courts.
 
Some may not see Jerrell as troublesome because the legislature eventually enacted section 938.195, which codified the policy created in Jerrell. Some may say, "no harm, no foul." I categorically reject that notion. The federal and state Constitutions separate powers in three branches of government as a check and balance of power. For it to succeed, the rule of law must be respected and followed, and that means exercising restraint. Regrettably, the Jerrell majority saw "superintending authority" as limitless and included the ability to make policy. I am concerned that Jerrell will be a blueprint for future incursions into the legislative and executive functions of government.

Judicial philosophy – During his confirmation bearing, John Roberts compared a judge to a baseball umpire. He said a judge’s job is "to call balls and strikes and not to pitch or bat." No one goes to a ball game to see the umpire; the same is true of a judge.
 
I wholeheartedly endorse Justice Roberts' view of the role of a judge. A judge must function within the Constitutional grant of authority, not outside it. That means a judge needs to be faithful to the Constitution, to legislative text and to judicial precedent. A judge cannot deviate from the law because he or she thinks the law is unwise or finds the outcome undesirable.
 
This judicial philosophy necessarily involves the utmost respect for text. The intent of the legislature is determined by the plain language of the statutory text. The same goes for the Constitution. When judges depart from text, the law becomes contrived, arbitrary and unreliable, all of which are unacceptable. In order for the public to conform to the law and have respect for it, the law that's written must be the law that's applied.

Any other information you feel would be helpful to your application: I have submitted this application with the highest respect for the office of circuit court judge and complete understanding of the responsibilities the office entails. During this application process, I have been truly humbled by the encouragement I received from judges, attorneys, clients and friends.  Their faith in me is uplifting.
 
For me, the office of judge is not about gaining power or prestige. A judge is a public servant and must earn the respect of the people he or she serves. The office of judge is not a capstone to a career or a bridge to retirement. A judge must work hard to stay abreast of the law and administer it decisively and without unreasonable delay.
 
At 44 years old, I am in my prime working years, and I have the energy and desire to fulfill the responsibilities of the job. I am also at a point in life where I do not have any outside distractions.   I have no dependent children.  My wife and I are happily married.   We are both in good health, and we are financially  secure. If I am appointed, I will be able to devote my complete attention to the job.
 
I also submit my application with the highest respect for the role a judge plays in the tripartite system of government. I pledge to be faithful to the Constitution, uphold the rule of law, and protect the integrity of the courts.​​