¶ 33. (concurring). The issue presented by the motion to vacate the decision in Donohoo v. Action Wisconsin, Inc., 2008 WI 56, 309 Wis. 2d 704, 750 N.W.2d 739, is whether Justice Butler was disqualified from participating in this case as a matter of law.
¶ 34. The motion puts the issue about as starkly as it can be put, for it challenges the impartiality of a member of the court. The motion should not come as a surprise, however, given the predicament in which the movant finds himself and the frequency of similar attacks on other members of the court.
¶ 35. The court's response is a swift rebuff. This, too, should not be a surprise because any other response would encourage more challenges from disappointed or apprehensive litigants and others who seek to advance their interests or political agenda by attempting to induce targeted justices to withdraw from cases under pressure.
¶ 36. This case exposes some of the flaws in a system in which justices are elected. The court's opinion, which necessarily discloses the campaign details giving rise to this challenge, is not likely to enhance confidence in the court.
¶ 37. Why the supreme court finds itself in this awkward position and how elections to the court can be reformed are questions that deserve thoughtful analysis.
¶ 38. This concurrence will attempt to discuss several of these points in turn.
I
¶ 39. Attorney James R. Donohoo filed a defamation suit on behalf of Grant E. Storms against the defendants on February 23, 2004. The facts of the. case *536are discussed in this court's Donohoo opinion, 309 Wis. 2d 704, ¶¶ 7-30; id., ¶¶ 92-99 (Roggensack, J., dissenting), and in the unpublished decision of the court of appeals, Donohoo v. Action Wisconsin, Inc., No. 2006AP396, unpublished slip op. and order (Wis. Ct. App., May 30, 2007).
¶ 40. On June 28, 2005, the circuit court granted the defendants' motion for summary judgment. On January 4, 2006, the circuit court denied Storms's motion for reconsideration and granted the defendants' motion for costs and attorney fees.
¶ 41. In their original motion, the defendants asked for costs and attorney fees from both Storms and Attorney Donohoo. In a September 6, 2005, letter to the court, the defendants altered their request, asking for costs and attorney fees from only Attorney Donohoo. The circuit court's approval of this request is embodied in its January 23, 2006, order for judgment and in the February 2, 2006, judgment. As a result, Attorney Donohoo has been made solely liable for costs and attorney fees of $87,452.59.
¶ 42. On February 8, 2006, less than a week after the circuit court entered judgment, defendants filed a garnishment action against Attorney Donohoo's personal and business bank accounts. This action implicated Donohoo's wife. See Action Wisconsin, Inc. v. James R. Donohoo, 2006CV1039 (Milwaukee County, Feb. 8, 2006); Cary Spivak & Dan Bice," 'Timing is everything,' a costly lesson," Feb. 18, 2006, http://www. jsonline. com/story/index. aspx?id=402734&format=print (last visited July 22, 2008). Although this action was subsequently dismissed, a similar action cannot be ruled out in the future.
*537¶ -42. Thus, this case sends a chilling message to attorneys who agree to represent persons and causes that are not viewed as politically correct.
¶ 44. Attorney Donohoo is not oblivious to contemporary legal developments. In recent years, justices of this court have been subjected to repeated demands that they recuse themselves from participation in pending cases. Often those demands are amplified by sensation-seeking reporters who appear to believe that freedom of the press entails a right to tamper with the administration of justice. Sometimes these well-publicized demands have caused a justice to withdraw from a case because the justice is not in a position to answer false allegations without appearing to comment on pending litigation.
¶ 45. If Attorney Donohoo believed that his claims of bias would be sympathetically reported, he is likely to be disappointed. In any event, he has failed to provide grounds to vacate the court's decision.
II
¶ 46. In Wisconsin, justices come to the supreme court either by election or by gubernatorial appointment. Wis. Const, art. VII, secs. 4(1), 9. When a justice is appointed to the court to fill a vacancy, he or she must run for the office to retain the position in the first year in which there is not another election. To illustrate, Chief Justice Abrahamson was appointed to the court in 1976. She was required to run in 1979 while serving as a member of the court. In the past quarter century, justices who were appointed to the court and then ran for the position while serving are Louis J. Ceci (1984), Janine E Geske (1994), Jon E Wilcox (1997), Diane S. Sykes (2000), David T. Frosser (2001), and Louis B. *538Butler, Jr. (2008). Of course, any justice who is elected to the court will seek re-election while serving on the court. Current examples are Shirley S. Abrahamson (1989, 1999, 2009), Ann Walsh Bradley (2005), and N. Patrick Crooks (2006).
¶ 47. When any sitting justice runs for the court, the justice is confronted with the problem of how to campaign and how to raise money for a campaign without creating a real or possible conflict of interest. Justices inevitably deal with attorneys, and attorneys have always played a significant role in funding judicial campaigns.
¶ 48. There are ethical rules that prohibit judges from personally soliciting campaign contributions, see SCR 60.06(4), but there are no clear guidelines or bright-line rules on when a justice's campaign committee may receive contributions from a party, a party's attorney, or members of the attorney's law firm. Consequently, the receipt of contributions — which is expected and probably necessary in a system of judicial elections — is bound to raise questions and generate differing reactions.
¶ 49. In the absence of clear guidelines, however, members of this court are not in a good position to second-guess a colleague's decision to participate in a case after his or her committee has received contributions. In some instances, there is no justification for such a review.
Ill
¶ 50. This case involves a publicly reported contribution from an attorney representing a party in a pending case as well as contributions from several members of that attorney's law firm. Attorney Lester *539Pines filed a petition for review in this case on behalf of the defendants on June 29, 2007. On July 23, 2007, Attorney Pines contributed $300 to Justice Butler's campaign. On September 11, 2007, this court granted the petition for review. On December 3, 2007, Justice Butler advised the parties of the Pines contribution. On January 15, 2008, the court heard oral argument and tentatively decided the case. On June 5, 2008, the court issued its decision. Attorney Pines is a prominent attorney who appears frequently before the supreme court. There is no rule prohibiting the Pines contribution, and no likelihood that the Pines contribution had any influence on Justice Butler's decisions.
¶ 51. In the period after the case was decided internally and assigned by lot to Justice Ann Walsh Bradley, several members of the law firm of Cullen, Weston, Pines & Bach LLP contributed money to Justice Butler's campaign: Jordan Loeb ($100, February 2, 2008), Alison TenBruggencate ($250, February 25, 2008), Terri Gabriel ($100, March 6,2008), Jordan Loeb ($100, March 17, 2008), and Nick Fairweather ($100, March 17, 2008). Attorney Fairweather appeared in court on behalf of Action Wisconsin in the garnishment action. These contributions all came after the case was decided internally and did not affect Justice Butler's decision.1
¶ 52. Attorney Donohoo also complains that Justice Butler's campaign received contributions from two members of the Action Wisconsin board: Peter Bock and Ruth Irvings. Peter Bock's $125 contribution to the campaign came before the court granted the petition for *540review in this case. However, Peter Bock is much better known as a former legislator from Milwaukee who is married to Dane County Executive Kathleen Falk than as a member of the Action Wisconsin board. Ruth Irvings contributed $1,100 to Justice Butler's campaign but only $100 was contributed before the case was argued and decided. Ruth Irvings is a Milwaukee attorney and identified herself as such.
¶ 53. As a practical matter, a sitting justice is not well equipped to disclose to litigants all the affiliations of a contributor, even if those affiliations were timely disclosed by the contributor. At present, there is no such requirement in law. There is also no requirement that a justice disclose contributions to litigants. Disclosing arguably relevant contributions to every litigant forces a justice's professional staff to work closely with the justice's campaign staff.
¶ 54. Attorney Donohoo also points to the fact that Justice Butler appeared and spoke at the fundraising event for Center Advocates Political Action Committee (Center Advocates PAC) on August 26, 2007, while Action Wisconsin's petition for review was pending.
¶ 55. Supreme Court Rule 60.06(5) governs the "Solicitation and Acceptance of Endorsements." It reads:
A judge or candidate for judicial office may solicit or accept endorsements supporting his or her election or appointment personally or through his or her committee. A judge, candidate for judicial office, or his or her committee is not prohibited from soliciting and accepting endorsements from lawyers and others. A judge or candidate for judicial office shall not knowingly personally solicit or accept endorsements from parties who have a case pending before the court to which election *541or appointment is sought. Nevertheless, a judge or judicial candidate may personally solicit or accept endorsements from the types of organizations that ordinarily make recommendations for selection to the office. In soliciting or accepting an endorsement, a judge or candidate for judicial office should be mindful of the requirements of SCR 60.03 and 60.04(4).
¶ 56. The record shows that Action Wisconsin!s petition for review was received by our court commissioners on July 13, 2007. A recommendation was made to the court for the court's August 13, 2007, conference. The petition was held for our conference on September 10, 2007, at which time the court granted review. Justice Butler appeared at the Center Advocates PAC Garden Party for Equality fundraiser on August 26, 2007. Presumably, he was present to promote his candidacy, meaning that he solicited the organization's support.
¶ 57. Although Justice Butler's appearance might seem problematic in that the Action Wisconsin petition was then pending, there are at least two reasons why this appearance was not prohibited. First, there is a distinction between Action Wisconsin, Inc., the party in this case, and Center Advocates PAC. According to a news release endorsing Justice Butler, Center Advocates PAC is "affiliated with Center Advocates, Inc.," which is a corporation separate from Action Wisconsin. In short, Center Advocates PAC was not a party. Second, Center Advocates PAC is the type of organization that ordinarily makes recommendations for selection to both partisan and non-partisan offices, including judicial offices. Thus, the organization is not implicated by the prohibition in SCR 60.06(5).
¶ 58. Because Justice Butler was not prohibited from appearing before and speaking to Center Advo*542cates PAC, he was not prohibited from receiving their endorsement. His appearance raises no question unless the organization used Justice Butler to promote the organization's fundraising and/or Justice Butler committed himself to decide cases of interest to the organization in a certain way. The court has no evidence that either event occurred.
¶ 59. Attorney Donohoo complains that Justice Butler was endorsed by Attorney Tamara Packard. The court has no evidence that Justice Butler sought this endorsement. There is no evidence that he accepted, approved, or was even aware of Attorney Packard's endorsement.
¶ 60. In sum, there is no violation of any statute or judicial rule, and, consequently, there is no basis on which to vacate the Donohoo decision.
IV
¶ 61. The system of electing supreme court justices is not without flaws. However, eliminating judicial elections would create an entirely new series of problems, and any notion of complete public funding of judicial campaigns is both unrealistic and meaningless without changes in the United States Constitution. Public funding will not eliminate independent expenditures, which are, by definition, beyond the control of a candidate.
¶ 62. It is entirely reasonable to have a dispassionate discussion on the role of public funding in judicial campaigns. But people who care about the judiciary must also look long and hard at why supreme court elections have become so contentious and expensive.
¶ 63. A court that is in the vanguard of making and changing law in a way that greatly benefits some *543interest groups and seriously damages others is a court that is actively, if inadvertently, promoting the politicization of its own elections. Every litigant believes he is entitled to an impartial review of his case. If litigants do not believe they can get an impartial review of their cases, they will inevitably attempt to change the composition of the court.
¶ 64. For the reasons stated, I respectfully concur.
A justice's vote at conference after oral argument is a "tentative" vote in the sense that a justice may revise his or her position, even if the justice is the one writing the opinion. Changes in position occur but are infrequent.