Note: This article originally appeared in Isthmus on March 14, 2003.
For people like James Thiel, the power of the state court system is not an abstraction.
Thiel, a psychiatrist in La Crosse County, was convicted in June 2000 of seven counts of sexual exploitation by a therapist after a female patient alleged sexual contact. (He said she was retaliating over his refusal to help her snare disability benefits.) The prosecution proceeded even though the patient was caught planting false evidence.
After Thiel began serving a four-year sentence, his post-conviction attorney, Bruce Rosen of Madison, uncovered new holes in the prosecution's case. He found reasons to dispute the accuser's claim that she had been to Thiel's home, and documented more than 40 calls between her and a key witness who had testified they weren't in regular contact. And Rosen says Thiel's original attorney admitted he hadn't fully read the police reports or relevant case law.
Presented with this, the trial judge negated the conviction and ordered a new trial on grounds of ineffective assistance of counsel, saying the disclosures formed "a basis for reasonable doubt" and would have likely resulted in a different verdict. Thiel was freed after serving seven months behind bars.
The prosecution, rather than bringing its battered case before a new jury, appealed to the state's 4th District Court of Appeals, where Judge Patience Roggensack wrote the 2-1 majority opinion reversing the trial judge and reinstating the guilty verdict. Roggensack, as she's done throughout her seven years on the court, sided with the justice system against the accused, dubbing Thiel's defense "constitutionally sufficient."
This January, Thiel's case was accepted for review by the Wisconsin Supreme Court, to which Roggensack hopes to be elected on April 1. As Rosen sees it, more than just his client's freedom and future hangs in the balance.
"If Judge Roggensack's opinion is upheld," he says, "we could become no different than Texas," which sustained the conviction of a defendant whose lawyer slept in court, saying he didn't sleep through any important parts. "It's a frightening prospect."
The Supreme Court should decide Thiel's case by late June, before the new justice is sworn in. (Otherwise, by court custom, she'd recuse herself.) But it's perfectly clear how Roggensack would rule, since she's done so already.
Indeed, that's one of the things that distinguishes Roggensack from her rival, Barron County Judge Ed Brunner. How she would decide issues of law is spelled out in at least 350 opinions she's written and many more she's had a hand in.
Both candidates call themselves moderates and discuss their philosophy in terms of broad generalities. Roggensack purports to have "an approach to justice that is neither swayed by political influences nor compromised by a personal agenda." Brunner boasts that he is (ho hum) fair and impartial while aiming rhetorical appeals at voters of more liberal bent, as when he says the law must "protect minority interests against the tyranny of the majority."
Roggensack, in her time on the bench, has shown high energy and competence, and gathered a full measure of insight into how the court system could be more efficient. She's also, with some quirks, proven obsequious in her allegiance to police and prosecutorial power, which puts her perfectly in tune with the seven-member Supreme Court's four-member conservative majority. The vacancy she seeks to fill is that of Justice Bill Bablitch, a nominal liberal, so her ascension to the court -- for a ten-year term -- would tilt it even further to the right.
"In spite of Judge Roggensack's attempt to portray herself as a moderate, she is a clear conservative," says Dane County Judge Paul Higginbotham, who was edged out of contention in the three-way primary and has since endorsed Brunner. "I think Judge Brunner is more thoughtful. I think he really does care more for the ordinary citizen."
Roggensack is considered the favorite, in part because she is expected to have more money for TV ads, especially once the special-interest spigot opens full blast late in the campaign. (Leading up to the primary, she outspent Brunner more than two to one.) But Brunner's backers were buoyed that the two more progressive candidates collectively tallied 61% of the primary vote. And there are signs that heavy-hitter unions including AFSCME and WEAC may bring their considerable financial resources to bear on Brunner's behalf.
This, then, is a fight for ideological control of an ideological body between two candidates who are eager to downplay their ideological affiliations. But, in both cases, the judges' records give them away.
Who's ignoring what?
Let's start with school choice.
In January 1997, Judge Higginbotham declared that the state's school choice program, which provides public money to religious schools, violated the state constitution because it "compels Wisconsin citizens of varying faiths to support schools with their tax dollars that...attempt to inculcate [students] with beliefs contrary to their own."
The choice program was a feather in the cap of then-Gov. Tommy Thompson, so it surprised no one when Higginbotham's decision was appealed. But the 4th District Court of Appeals, on a 2-1 ruling written by David Deininger, a Thompson appointee and former Republican state legislator, upheld Higginbotham and criticized at length the reasoning advanced by the lone dissenter, Pat Roggensack, saying she had "adopt[ed] a narrowing construction" of the program's provisions "in order to preserve its constitutionality."
Roggensack concluded that the choice program "provides education opportunities (a religion-neutral benefit) to children from lower-income families (a religion-neutral class)," and was thus constitutional under federal and state law. The Wisconsin Supreme Court, in a 4-2 ruling, sided with Roggensack. (The court's 115-page majority decision was answered with a two-sentence dissent by Bablitch, its laziest justice.)
According to Higginbotham, Roggensack chose to "ignore Wisconsin's constitution" and "a whole line of cases coming out of our own court system" that supported his interpretation. "You have to question what was behind that choice."
Roggensack, in a cell-phone interview from a gas station on her way to a campaign event, notes that her dissent included a state constitutional analysis. She turns the argument back on Higginbotham, saying he "basically flipped off the U.S. Supreme Court" in making a dismissive reference to its position on the issue. "I think he ignored the law."
Missing from this response is any acknowledgement that all jurists use case law that supports the conclusions they wish to reach and ignore that which doesn't. Both sides of rulings that break down along ideological lines have ample case law to justify their positions. So a jurists' personal and political philosophy is critical.
Brunner frames this issue in terms of its societal impact, saying "We can't abandon the public school system" just so some kids can attend private schools. Roggensack says her opponent has gone further, revealing "he would have held [school choice] unconstitutional." She thinks it's inappropriate to make such a forthright declaration of bias.
Case by case
At his primary-night victory party at Madison's Avenue Bar, Brunner warmed the hearts of his more liberal followers when he declared, "I believe the 4th Amendment still has a role to play in the 21st Century."
On reflection, Brunner says issues involving searches and seizures are difficult to comment on in general, since each hinge on particular circumstances and issues of law. But, between bites of a rather large sub sandwich in an interview at Isthmus, he says it's wrong to "automatically assume we have the right to invade people's privacy without probable cause," citing the drug war as one factor that's caused a "diminution of the value of the 4th Amendment."
Brunner says he's "on numerous occasions" disallowed evidence obtained in traffic stops and other searches he felt were constitutionally over-broad. But, he adds with characteristic caution, protecting the 4th amendment "is not a mission of mine." He just wants "to interpret the law fairly."
Roggensack, claiming the same motivation, has in her time on the appellate court almost always ruled in favor of allowing seized evidence to be used against defendants in court. This is the finding of UW-Madison law students who undertook a comprehensive review of dozens of her opinions at Isthmus' behest. (For this analysis, see Document Feed at thedailypage.com. The actual opinions can be found at www.courts.state.wi.us.)
In State v. Matejka, Roggensack ruled that police who got a driver to consent to a vehicle search were within their rights to dig through the removed jackets of passengers. In State v. Frey and again in State v. Duckart, she okayed the drawing of blood from drunk-driving suspects without their permission. In State v. Droessler, she reversed a lower court which deemed that police did not have probable cause to approach drunk-driving suspect; Roggensack said police "did not restrain Droessler's movement with physical force or a show of authority such that a reasonable person would not have felt free to leave."
Of particular interest are cases in which Roggensack dissented from her 4th District Appellate Court colleagues. (While the court has five members, cases are decided by either a single judge or a panel of three.) In State v. Moss, she stood alone in believing that a drug dealer using his girlfriend's apartment could not challenge the legality of a police search. In State v. Ward, only she felt there was probable cause to issue a search warrant that led to a man's felony drug conviction.
In State v. Halicek, Roggensack was on the short end of a 2-1 ruling regarding a warrantless search of a man on probation. The majority agreed with the trial court that the search was illegal. But the Supreme Court, on review, sided with Roggensack on a 4-3 decision that reflected its usual ideological divide.
"As someone said to me, 'Judge Roggensack has never seen a search she didn't like,'" cracks Higginbotham. His own perspective: "While law-enforcement officers do the best they can to perform searches consistent with the constitution, the odds are that some searches are not going to meet the constitutional mandate." He thinks the consistency with which Roggensack sides with police "contradicts her argument that she does not have an [ideological] agenda."
But Roggensack insists she backs police because usually "they do it right." She says there's nothing ideological about it: "The only reason to decide to allow [evidence] in is if police do it right." She mentions one case in which she tossed out drug evidence obtained when police searched an apartment without a warrant after entering it to close open windows. It is the same case, State v. Marshall, that the UW students identified as the only time Roggensack has taken such a stance.
Roggensack argues that her inclination to allow in evidence sometimes works to the defendant's advantage, citing a case that makes her hard to peg as a diehard conservative. In State v. Head, the trial court refused to allow a woman who claimed she killed her husband in self-defense to present evidence of past spousal abuse. The 4th District Appellate Court upheld this decision 2-1, with Roggensack dissenting. The state Supreme Court, on review, unanimously sided with Roggensack, who now notes, with apparent pride, that the defendant is "getting a new trial."
The law students' review of Roggensack's rulings turned up other anomalies, saying she's shown "a pro-women, pro-child trend" in cases involving sexual assault, divorce and child support. She's also supported grandparents' visitation rights, although the students say this is "not clearly progressive."
Their best foot forward
Roggensack calls herself an "independent-minded" judge who leans neither left nor right. She says her appellate court experience offers something the Supreme Court lacks, noting that four of its justices share Brunner's background as a circuit court judge. No judge from the appellate system, established in 1978, has ever advanced to the Supreme Court.
And Roggensack has shown chutzpah in saying the court should double its current output to 140 cases a year, while writing opinions that are shorter and clearer. (Actually, numbers from court spokesperson Amanda Todd show that the court has averaged 116 cases during the last five years.)
Brunner bills himself as a "social activist," inclined to work with others to address social problems. He is a pioneer in restorative justice, which brings together victims and offenders in a process meant to heal wounds and reduce recidivism. And he has helped create programs fir domestic and child abuse, inmate education, and self-represented litigants.
"I've been in the trenches and I know how law affects real people," says Brunner, who lambastes Roggensack's lack of trial court experience. "What does an appellate court judge bring to the court? Sitting in a library writing a decision? Any law student can do that." He dismisses the appellate court as "an error-correcting court," as opposed to the Supreme Court, which "takes on issues of more serious concern."
In fact, the main function of both the appellate and Supreme Court is to second-guess the lower courts. And a Supreme Court justice's duties -- weighing opposing arguments and writing opinions -- are much more closely akin to those of an appellate court judge than a circuit court one. Brunner counters that trial court judges routinely parse issues of law in rulings from the bench. "Even if you don't write the decisions," he says, "the same intellectual process takes place."
A few years back, the Wisconsin Law Journal named Brunner as among the top judges in the state in terms of how seldom his rulings are overturned.
In Brunner's most controversial case, Jandrt v. Jerome Foods, a Milwaukee law firm sued a turkey processing company over birth defects in the children of three of its workers. After nine months, the firm abandoned its case and Brunner, deeming the action frivolous, ordered it to pay defense costs totaling $716,081. The state Supreme Court, in a 5-2 ruling, upheld Brunner in substantial part.
Roggensack clucks about how this case has "chilled" the ability of people to sue because lawyers fear taking cases "where every duck in not in order." She says, based on what she's heard from lawyers, that it has "shut down the court system" for some people who need representation.
Brunner stands by his decision, saying "there was absolutely no basis for this case in law." He adds, with regard to Roggensack's concern, "Go to the clerk of courts in any county in the state and look at the cases. I don't think lawyers have been chilled in their willingness to file lawsuits."
What difference does it make if judges make rulings based strictly on the law or if they also consider the impact on people's lives? Consider Brunner's handling of a 1998 drunk driving case.
The driver, Jeffrey Bilodeau of Rice Lake, ran a stop sign and crashed into a vehicle carrying a mother and her little boy, killing the mom. Bilodeau was charged with vehicular homicide; the prosecutor recommended a 15-year prison sentence. Brunner, after hearing testimonials from the victim's family, imposed it.
And then Brunner stayed the sentence.
"I could have locked him up with no criticism from anybody," says Brunner. Instead, he ordered Bilodeau, who had a good job, to serve a year in jail, pay for the mother's funeral, and assume child-care and other costs for the boy totaling $1,500 a month until he turns 18. Bilodeau must refrain from drinking and comply with other conditions of his probation or else risk serving the full 15 years.
"This was an unusual sentence that made the victims' family happy and did the right thing by the offender to punish and hold him accountable," says Brunner. "I think justice was done for everybody."
With Roggensack, in contrast, there appears to be a disconnect between her rulings and the human consequences they entail. Consider State v. Noble, in which she upheld the perjury conviction of a woman in southwestern Wisconsin who changed her testimony for fear of retribution from drug thugs. Roggensack, on the campaign trail, has cited this case as one that defines her judicial philosophy, saying "the law is the law, whether you're Jack the Ripper or a very sympathetic defendant."
Isn't this a bit coldblooded? Shouldn't she also consider the circumstances and the terrible choice with which this woman was faced? Roggensack dissents: "The prosecutor was elected to decide when to prosecute. When you take those kind of steps, you have the courts taking over the prosecutor's job."
And Roggensack denies that such rulings establish her credentials as a judicial conservative.
"First of all," she lectures, "most of the issues that the court adjudicates have neither a conservative or a liberal side." What matters is "applying the law fairly and evenhandedly." She says it's always wrong to "put your thumb on the scales" to leverage an outcome based on ideology.
Roggensack, still at the gas station en route to her next engagement, works herself into full campaign mode: "We don't need a liberal on the court. We don't need a conservative. We need an independent on the court." She laments the trend in recent years toward "stacking the court" with judicial appointees who fall into one or the other ideological camp, saying the nation has gone "so far down that line" as to threaten the integrity of the system.
As an example of this troublesome trend, Roggensack points to President George Bush's nomination of Miguel Estrada to a federal appellate court. Estrada, who has never worked as a judge and refused to answer questions about his views on issues including abortion, labor rights, gay rights and the environment, is believed to be a hardcore conservative.
What troubles Roggensack, however, is not Estrada's nomination; it's the filibuster to block it by U.S. Senate Democrats.
But wait: If Roggensack really thinks the courts are being undermined by ideological appointments, shouldn't she support an effort to keep a reputed ideologue off the bench?
Roggensack dodges the question, saying "both sides are doing the same thing" to get judges who suit their ideology. "I don't think it's a good idea." Given her record, though, it seems unlikely she'd object as strenuously if a liberal's nomination were being blocked. The irony is nothing short of supreme.
Patience "Pat" D. Roggensack
Born: Joliet, Illinois
Resides: Madison's west side
Family: Married to George Roggensack, three children, seven grandchildren
Education: Drake University, B.A. biology, 1962; UW-Madison, law degree, 1980
Experience: Lawyer specializing in business litigation and family law at DeWitt Ross & Stevens; elected state Appellate Court, 1996. Ran for state Supreme Court in 1995 and lost; also sought appointment to the job in 1998 and was not selected.
Most admired jurist: Sandra Day O'Connor
Boasts: As appellate judge, is "known as the court's plain-language, common-sense voice" who writes "thoughtful, yet concise opinions that are easily understood by legal and nonlegal minds alike." Serves on numberous local boards, including the YWCA, Highlands Neighborhood Association and Olbrich Botanical Society.
Liability: May be seen as too conservative.
Most influential booster: former Gov. Tommy Thompson
Hobbies: Tennis, downhill skiing, gardening, cooking
Book she'd recommend: From Beirut to Jerusalem by Thomas Friedman
Favorite TV court/crime drama: "I have never seen them."
Edward "Ed" R. Brunner
Born: Akron, Ohio
Resides: Rice Lake
Family: Married to Linda Stariha Brunner, two adult children
Education: Marquette University, B.A., 1970; University of Akron, law degree, 1974
Experience: Headed youth-services agency in Ohio, Barron County corporation council; Rice Lake city attorney, attorney in private practice for nine years; elected Barron County judge since 1988; chief judge of a 13-county region in northwestern Wisconsin since 1999.
Most admired jurist: Earl Warren
Boasts: "I'm just a regular working guy" -- who just happens to be chief judge of a 13-county region. Is endorsed by 178 circuit court judges -- 74% of the total. Has refused to accept PAC money in his campaign.
Liability: He's from far-away Barron County -- where, he jokes, "a drive-by shooting is a DNR violation."
Most influential booster: former Gov. Tony Earl
Hobbies: Golfing, hunting and fishing, curling, snowshoeing, home-brewing
Book he'd recommend: Profiles in Courage by John F. Kennedy
Favorite TV court/crime drama: "I don't watch any of those."