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Rotunda Report
  • Rotunda Report
    March 25, 2013

    Supreme Court Debate: Candidates Talk Experience, Recusal, Discipline, Dysfunction

    Supreme Court debate

    Tom Bier, president of debate co-sponsor We the People/Wisconsin and station manager at WISC-TV in Madison, introduces candidates Pat Roggensack and Ed Fallone before the debate at the State Bar Center in Madison last Friday. More than 100 people attended.

    March 25, 2013 – Candidates vying for a Wisconsin Supreme Court seat – incumbent Justice Pat Roggensack and Marquette law professor Ed Fallone – covered a lot of ground last Friday in their first and only debate at the State Bar Center in Madison.

    The two fielded questions about experience, campaign contribution rules affecting judicial recusal, and addressed the unresolved disciplinary action involving a physical altercation between two justices in June 2011 that is still unresolved.

    The debate – sponsored by the State Bar of Wisconsin and We the People/Wisconsin and moderated by WISC-TV anchor Eric Franke – aired on television stations in Madison and La Crosse yesterday. The election is April 2.

    While Roggensack focused attention on her 17 years as a judge – including almost 10 years on the supreme court and seven on the state court of appeals – Fallone said voters should look beyond judicial experience to address a “dysfunctional court.”

    “It’s more than just experience that we are facing in this election,” said Fallone, a law professor for the last 20 years and of counsel for Gonzalez, Saggio & Harlan LLP in Milwaukee. “What faces us at this stage of the election is a dysfunction on the court.”

    Roggensack suggested that Fallone’s “dysfunctional court” argument opens up old wounds that haven’t fully healed, and in any event, the court is not up for election.

    “I believe there is repair work that needs to be done because of what happened in June of 2011. But what he is doing is inflicting further injury,” she said. “The court is not up for reelection. One judge is up for reelection, Pat Roggensack.”

    “If the court were as dysfunctional as Professor Fallone would have you believe, do you really think I would be running for another 10-year term? I don’t think so,” she added.

    But Fallone says Roggensack needs to be replaced because the court isn’t operating as it should. If elected, Fallone says he can help “change the court for the better.”

    “The obvious fracture that has developed is affecting the work of the court,” said Fallone, citing decreased productivity. “I don’t have faith that anything will change, that the dysfunction or infighting will change, with reelection of Justice Roggensack.”

    Other Points of Debate

    Fallone said if he’s elected, he’ll ask the court to revisit the judicial recusal rules to limit a judge’s ability to decide cases in which a campaign contributor is a party.

    He said Roggensack supported the current rule, which states that “a judge shall not be required to recuse himself or herself in a proceeding based solely on any endorsement or the judge’s campaign committee’s receipt of a lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.”

    Ed Fallone

    “It’s more than just experience that we are facing in this election,” said challenger Ed Fallone, long-time law professor at Marquette University Law School. “What faces us at this stage of the election is a dysfunction on the court.”

    Fallone said parties must feel that judges gave them a fair and impartial hearing. “When they discover that that judge received substantial campaign contributions from someone on the other side, they are going to doubt whether they were treated fairly,” he said.

    Roggensack countered that the current rule doesn’t prevent judges from choosing to recuse themselves in such cases, it simply does not require it. She noted that her compliance committee carefully tracks campaign contributions so that she does not receive a contribution that would be excessive or draw her impartiality into question.

    Roggensack also dispelled the public perception that’s she’s in the so-called “conservative” majority of justices who are at odds with the court’s “liberal” faction.

    “Last year, we decided 59 civil and criminal cases. Of those 59, four were 4-3 decisions. Of those four, only three were the ‘conservative’ justices against the three ‘liberal’ justices. It makes good copy in the newspaper, but is simply not borne out by the facts.”

    Fallone said the court’s last term produced 59 decisions, 16 unanimous, 11 with justices writing separately, and “four cases where the court could not even produce a majority opinion. I can display willingness to compromise and build consensus,” he said.

    Both candidates declined to answer a collective bargaining question, citing ongoing litigation about Act 10, which curbed the collective bargaining rights of public workers.

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    “The court is not up for reelection,” said incumbent Justice Pat Roggensack. “One judge is up for reelection, Pat Roggensack.”

    Fallone said voters want accountability for the physical altercation between justices David Prosser and Ann Walsh Bradley that captured national attention.

    The Judicial Commission’s ethics case against Prosser ended after three justices recused themselves, including Roggensack. The court can’t act without a quorum.

    The Judicial Commission had asked the supreme court to send the case to a three-judge court of appeals panel to decide whether judicial ethics violations occurred.

    “When the case is stuck in a legal limbo, because Justice Roggensack and two other justices recused themselves, and the normal process, investigation, and prosecution by the Judicial Commission can’t go forward, there is no accountability.”

    Roggensack said she recused herself because she is material witness to the incident, and the case would ultimately return to the supreme court after any court of appeals decision. However, she said “there will be accountability” after the election.

    “The matter between Justice Bradley and Justice Prosser will have a resolution when I am finished with this race. After April 2, I will ask that this matter be placed on the court’s calendar for a conference among the seven of us because there is repair work to be done. We as an institution must address it, and we have the ability to do that.”

    Roggensack asked voters to consider her 17 years of experience on the bench in deciding who is best suited for the job she currently holds. She noted that Fallone has no judicial experience, and such experience is crucial in meeting the job’s demands.

    Fallone says his experience as a constitutional law scholar and practicing lawyer will benefit the court, and Roggensack’s reelection won’t cure the court’s divisiveness.

    He noted that two current justices – Chief Justice Shirley Abrahamson and Justice Prosser – did not have experience as a judge before appointments to the bench.


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