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You Be the Judge

State Supreme Court candidates Fallone and Roggensack face the voters on April 2

Mar. 20, 2013
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After more than two years of highly visible, highly polarized and highly acrimonious political campaigns, it’s almost a relief to have a relatively subdued race for state Supreme Court. But don’t discount its importance.

At stake is a ten-year term on Wisconsin’s highest court, where the seven justices weigh in on the state’s most complex constitutional questions, as well as oversee the state’s court system.

The incumbent, Justice Patience Roggensack, is facing Edward Fallone, a Milwaukee attorney and law professor at Marquette University, in the April 2 general election.

Roggensack, not surprisingly, is emphasizing her 16 years on the bench, both at the appellate court and the Supreme Court, as the reason why voters should support her.

“This race is about two things: experience and judicial philosophy,” Roggensack told Steve Walters of WisconsinEye.

(Roggensack’s campaign wouldn’t consent to an interview with the Shepherd, citing the Supreme Court’s busy schedule. Nor would it provide a surrogate to speak on Roggensack’s behalf.)

Fallone, just as predictably, is urging voters to support him because the court cannot overcome its dysfunction when its seven members remain the same.

“I am the candidate who is not part of the current problem on the court and who can get the factions on the court working together,” Fallone said. “And, most importantly, who will be independent and open-minded and who will decide these cases on their own individual merits.”


The 4-3 Split on Ethical Matters

Although the campaign seems to be low-key, its central issue is one of the most notorious incidents in the court’s history: the physical altercation between Justice David Prosser and Justice Ann Walsh Bradley in June 2011.

The alleged chokehold is shocking and disturbing in and of itself. But it also highlights the inability of the justices to sit in judgment of one of their own, a failure that also happens to split them along predictable ideological lines with Prosser, Roggensack, Michael Gableman and Annette Ziegler forming one bloc and Bradley, Chief Justice Shirley Abrahamson and Patrick Crooks forming another bloc.

Back in 2010, the justices formed the same blocs when deciding the ethics case of Michael Gableman. The Wisconsin Judicial Commission had determined that Gableman had run a race-baiting campaign ad that he knew distorted his opponent’s record. Prosser, Roggensack and Ziegler decided that disciplining Gableman for the ad would violate his First Amendment rights. Abrahamson, Bradley and Crooks disagreed. The matter ended there.

The justices also split on whether judges and justices had to recuse themselves from cases involving a campaign donor. Gableman, Prosser, Roggensack and Zeigler decided that judges and justices could hear their donors’ cases; the other three disagreed.

Former state Supreme Court Justice Janine Geske told the Shepherd that it wasn’t unusual for justices to have personal conflicts with one another. (Geske was appointed to the court by Republican Gov. Tommy Thompson, but she has not endorsed a candidate in this race.)

“Unfortunately, what appears to be personality differences also fall along the same lines as judicial philosophy,” Geske said. “When I was on the court there were certainly people who didn’t get along. But they often aligned on decisions. I think that makes a difference.”


Court Dysfunction: Gossip or Heart Breaking?

Prosser has admitted to Dane County investigators that he put his hands around Bradley’s neck as she was trying to remove him—and three of his colleagues—from her office on June 13, 2011.

Yet the case still isn’t resolved.

The Wisconsin Judicial Commission has recommended that disciplinary hearings go forward against Prosser for the altercation, as well as for calling Chief Justice Abrahamson, in a separate incident, a “bitch.”

Prosser’s typical allies on the court—Roggensack, Gableman and Ziegler—have recused themselves from the case and apparently have refused to refer the complaint to an appeals court panel that could hear the charges and allow Prosser to defend himself.

Geske said she doubted that the complaint would be revived and resolved. But she argued that the justices could have forwarded the case to the appellate court panel even if they didn’t want to—or felt they couldn’t—sit in judgment of Prosser.

“There would have been a hearing,” Geske said. “The public would have heard [testimony]. It would have been nasty but people would have heard [it] and the Court of Appeals could have made some proposed findings of fact. I understand there are pros and cons to that. But to have it completely shut down, so there’s no process whatsoever, I think impacts people’s ability to assess what’s going on, which I think is important.”

Roggensack was the first to remove herself from the case, claiming that, as a witness to it, she cannot sit in judgment on it. Gableman and Ziegler have followed suit. Bradley and Prosser have also, understandably, removed themselves from the case.

Roggensack told WisconsinEye’s Walters that the matter was still in the hands of the Judicial Commission.

“It’s their complaint,” Roggensack said. “It just stands in their box right now.”

On the campaign trail, Roggensack has talked about how much the incident has hurt her at the same time she has stressed that the court is not dysfunctional.

She told a Milwaukee Bar Association forum in February that the “interaction” between Prosser and Bradley “breaks my heart.”

Yet in the same forum, she said that the perception that the court is dysfunctional is “gossip at its worst.”

Fallone said he was hopeful that the Supreme Court justices would send the complaint to the appellate panel for a hearing. He said that allowing the Supreme Court to come up with its own procedures would violate the state constitution.

“I think that we have our normal legislative procedures that were being followed by the Judicial Commission,” Fallone said. “The reason we are in the position we are in now is because those normal procedures were not followed [by the Supreme Court justices].”


Alternative Resolutions Proposed

Although Prosser’s Judicial Complaint is stuck, the justices seem to have been working to move past the incident in their own way.

Last August, more than a year after the Prosser-Bradley incident, Roggensack had attempted to resolve the matter by drafting a letter of apology that would be signed by all the justices.

“We, both collectively and individually, recognize the harm that has been done to the court as an institution, and hereby commit to the public that there will be no repeat of such extraordinary conduct,” Roggensack’s proposed letter reads in part.

In an email to her colleagues that was eventually released to the public, Chief Justice Abrahamson blasted Roggensack’s letter, calling it “divisive,” “window dressing” and “masking real problems and real issues.”

She also noted that four members of the court—including Roggensack—had voted against Justice Crooks’ September 2011 proposal to bring in an independent mediator to help foster collegiality and collaboration on the court.

Geske told the Shepherd that she thought it would be helpful to bring in an out-of-state, neutral mediator to help to bridge the divisions on the court.

“They’re not going to resolve past problems,” Geske said. “That’s just not going to happen. But the question is whether they try to work together with a mediator or a neutral facilitator on how to move forward, to be more transparent and rebuild. I think they need to rebuild the faith in the court’s work.”

But, she said, she thought the court was so fractured that she doubted the justices could even agree on a neutral mediator.

“I think the court as a whole knows it needs to do something and wants to rebuild the confidence that I think the court once had,” Geske said. “But it’s a mater of finding the path to do that.”


Attack Reveals Ideological Divisions

Perhaps it was inevitable that the justices have aligned with their ideological partners, since the Prosser-Bradley incident arose out of a politically charged case.

According to the interviews the Dane County Sheriff’s Office investigators conducted with the justices, the members were at odds over the timing of the release of their decision on a case involving Act 10, Gov. Scott Walker’s controversial collective bargaining bill.

The conservative, Republican-aligned bloc had wanted to release an opinion quickly. Then-Assembly Speaker Jeff Fitzgerald (R-Horicon) had said he wanted a decision on the matter by June 14, 2011. The Republican-led Legislature was scheduled to vote on the state budget that week; the budget wouldn’t balance unless the public employee concessions in Act 10 were built into it and Republican legislators did not want to vote on the Act 10 provisions again.

Roggensack wrote the order upholding Act 10, which the conservative justices wanted to release on June 13.

The conservatives met in Roggensack’s office that day, then went to Bradley’s office to confront her and Abrahamson, who hadn’t finished writing her dissent.

Prosser told Abrahamson that he had lost complete confidence in Abrahamson’s leadership. Bradley then walked over to him and Prosser put his hands on her neck. Roggensack pulled them apart.

The day after the incident, Bradley emailed her colleagues to convene a meeting of the justices with Capitol Police Chief Charles Tubbs to discuss “workplace security.” Seemingly forgetting the altercation that took place just the day before, Roggensack replied in an email, “What is the need for a meeting with Chief Tubbs? Have you had problems with security?”

According to the investigators’ report, Roggensack has told Bradley that she “goads” Prosser and that Abrahamson had been “needling” Prosser before he called her a “bitch.”

Bradley, for her part, had been so concerned about Prosser’s temper that she had contacted security two months before the incident and a plan was set in place. She and Abrahamson were advised to lock their office doors after hours and on weekends.


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