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The powerful Pat Roggensack
Ed Fallone faces long odds in ousting a key member of the Supreme Court's conservative bloc
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Credit:Dennis Nishi

One of the ugliest incidents in the 160-year history of the Wisconsin Supreme Court occurred on June 13, 2011, with an extraordinary physical altercation between two of its members. As Justice Ann Walsh Bradley would later tell investigators, Justice David Prosser put his hands around her neck, "full circle skin-to-skin...holding my neck as though he were going to choke me."

Prosser denied trying to choke her but admitted to investigators that his hands were on her neck. He remembered "the warmth on the side of Justice Bradley's neck in his hands."

The Wisconsin Judicial Commission launched an investigation of the incident and appointed Milwaukee lawyer Frank Gimbel as prosecutor. A former assistant U.S. attorney, he had previously supported Prosser's reelection effort and could therefore not be seen as hostile to the justice.

On March 16, 2012, Gimbel filed a complaint (PDF) that found probable cause to believe Prosser "willfully violated" three statutory provisions of the Wisconsin Code of Judicial Conduct. "Wherefore, the Judicial Commission requests this matter be determined according to the law and that appropriate discipline be imposed."

At this point, says former state Supreme Court Justice Janine Geske, the high court would normally refer the complaint to an appeals court panel to hear evidence and determine if Prosser was indeed guilty of the allegations. In her experience, she says, "It was pro forma, it was routine, to forward it on. I would be surprised if the court even discussed whether the appeals court should be convened."

But this time the process worked quite differently. Prosser filed a motion suggesting that the four justices who witnessed the incident recuse themselves from taking any action in the case. Prosser, of course, was doing whatever he could to kill the inquiry. But before Gimbel had a chance to file a response to Prosser's motion, Justice Pat Roggensack took the accused justice's suggestion and filed a motion recusing herself. "I think she started a little bit of an avalanche of the Prosser people [those justices aligned with him ideologically] to recuse themselves," says Gimbel.

Sure enough, Justices Annette Ziegler and Michael Gableman soon followed Roggensack's lead and recused themselves.

Roggensack says she had no choice but to recuse. "I physically put my body between these two people," she says. "I was not an objective observer."

Gimbel agrees. Which is why, he says, Roggensack should have sent the case on to a panel of judges who could objectively determine what happened. "The statute sets up a process, and we never got to it. The public is entitled to know if Prosser violated the rules."

If the appeals court had found Prosser guilty, the matter would have been referred back to the Supreme Court for sanctions. That, of course, would not have happened because the justices who witnessed the incident would have had to recuse themselves. "But that's really secondary," Gimbel says. The public has a right to know, he says, if Prosser was guilty.

Geske agrees. "I think it would have been better to have a public hearing so people could hear what the witnesses have to say and to make their own decisions."

A survey of state residents in July 2011 done for Justice at Stake, a national nonpartisan group that works to keep courts fair and impartial, found that 84% knew about the allegations against Prosser. Without resolution on the charges, one of the state's top officials got treated much differently than an average person accused of wrongdoing. The behavior by Prosser "is one that would get most people removed from their workplace and fired," says Democrat and former state Attorney General Peg Lautenschlager.

Now Roggensack is running for reelection, and her opponent, Marquette University Law Professor Ed Fallone, has cited her handling of this and other decisions in arguing that Roggensack bears great responsibility for a court he says is "dysfunctional." He also charges it lacks transparency and appears compromised due to decisions it's made on cases involving large campaign contributions to justices. "I think the perception for the public is that the court is for sale," he says.

Lawyers who practice before the court, some of whom requested anonymity, say that Roggensack has been a key contributor to these problems, and at times has more power on the court than Chief Justice Shirley Abrahamson. "She often seems to take the lead on 4-3 decisions," says Fallone. On key cases, he says, "Everyone was looking to her."

Roggensack says her "heart aches" because Fallone "attacks the court as an institution." Her campaign manager, Brandon Scholz, accuses Fallone of "essentially trashing the court." He adds that Fallone entered the race too late (in mid-December) and lacks the campaign funding to have any chance of winning. "They have a lot of work to do. And obviously, they don't have much time to do it."

History is on Roggensack's side: Rarely has an incumbent Wisconsin Supreme Court justice lost an election. So Fallone's chances are slim indeed. But the issues in this race could hardly be bigger.

'Terribly ambitious'

To Scholz, the election "boils down to one word: experience." The campaign released a very effective ad touting Roggensack's 17 years of experience presiding over 550 Supreme Court cases and 2,400 appellate cases. Fallone, by contrast, has never been a judge.

There is a certain irony to this, as Roggensack, 72, first ran for Supreme Court (and lost) in 1995 as a mere lawyer, promising she would bring the perspective of "the people" and not judges to the court.

Roggensack came to the law in a roundabout way. A native of Joliet, Ill., she had a steelworker father and a schoolteacher mother. Roggensack got her undergraduate degree in biology from Drake University in 1962 and worked for years as a research associate. She married a doctor and was far removed from the world of law, but she recalls, "I got to know lawyers in a social setting, and the things they did sounded very interesting."

Then living in Madison, Roggensack took a constitutional law class and found it fascinating. She enrolled in the University of Wisconsin Law School in 1977. At the time she was raising three children, and from 8 p.m. to midnight she would hit the books, her daughter Ellen Brostrom recalled to the Milwaukee Journal Sentinel in 2009. "My mom is incredibly organized and can go on forever with a limited amount of sleep." Brostrom herself is now a judge, making the two the first mother and daughter to serve on the bench in Wisconsin history.

Even among fellow law students like future Attorney General Lautenschlager, future congressman and Milwaukee Mayor Tom Barrett, and future Senate Majority Leader Chuck Chvala, Roggensack stood out, says a classmate who asked to remain anonymous: "She was terribly ambitious."

Roggensack worked for 16 years as a private attorney, becoming a partner with DeWitt, Ross & Stevens, before running successfully in 1996 for the state Court of Appeals, once again as a non-judge for a position more commonly won by circuit court judges. After seven years in this position, she ran again for the high court and won. Yet even today she seems drawn to those who took an unorthodox road to power. When asked to name her favorite U.S. Supreme Court Justice, she chooses Robert Jackson (who served from 1941 to 1954), noting, "He was the last justice without a law degree. He can turn a phrase like nobody."

Law was a fallback plan

Roggensack might in some ways have been describing Ed Fallone, 48, whose forte is language. Fallone grew up in Olney, Md., a suburb of Washington, D.C. His mother was born in Mexico (he would be the first Latino justice in the Wisconsin Supreme Court's history), and his father was Italian American and a high school teacher.

"My father had this big study, floor-to-ceiling with books," Fallone recalls, "and he was always pushing a book at me. I consumed every book I could, including some that were age inappropriate. In elementary school I tried to slog through Pilgrim's Progress. I was sneaking James Bond books. I thought I was going to be a writer. Law was just a fallback plan."

He won a full scholarship to a six-year program at Boston University that combined an undergrad degree with a law degree. "And when I started taking law classes, I really fell in love with the law."

After graduating in 1988, Fallone was hired to work at the D.C. office of a New York corporate law firm, Fried Frank Harris Shriver & Jacobson. There he represented companies including defense contractors in both civil and criminal cases, working under former Securities and Exchange Chairman Harvey Pitt.

In 1992, he joined the faculty of Marquette Law School. "I'd always had in the back of my mind that I wanted to teach." Now tenured, he teaches courses in constitutional, corporate and criminal law. He has also practiced law part-time for Gonzalez Saggio & Harlan, the largest minority-owned law firm in the state, and has done pro bono work with several nonprofits serving Latinos, including two that provide legal assistance.

Fallone also writes a blog on legal issues that displays his skill with language. "Ed Fallone is very bright," says Geske, a colleague of Fallone's on the faculty of Marquette University Law School who says she is neutral in the race. As for Fallone's lack of bench experience, Geske notes that Abrahamson - widely viewed as one of the smartest judges in the high court's history - was also a professor before being appointed to the court. "Not everybody on the court has to be a judge," Geske says.

Fallone's favorite U.S. Supreme Court member is Oliver Wendell Holmes. Holmes fought in the Civil War, and from that bloody clash of ideas came to resist any big idea or "overarching" theory of law, Fallone says. "I've come to that point myself," he adds. Otherwise, "the judge ends up trying to fit cases into that box."

Because Roggensack is a key member of the high court's conservative majority, many Republicans and groups like Wisconsin Manufacturers & Commerce are lining up to support her, while unions and Democrats tend to support Fallone. His views on most issues are largely unknown, but the usual right-versus-left dynamic has created one of the dominant themes for this race.

Consolidating power

As the Supreme Court member with the most seniority, Abrahamson serves as chief justice. This gives her some administrative power, but when it comes to the court's legal opinions, she forms a two-person liberal minority with Bradley. Patrick Crooks is a swing justice who leans right, but has sided with the liberals on some important cases.

The other four justices form a solid conservative majority, and in recent years Roggensack has emerged as the key member. "My sense is that she is the leader of the conservative bloc, and she is underestimated at times in that respect," says Madison attorney Dean Strang, who has appeared before the court on numerous occasions.

Ziegler and Gableman often seem influenced by Roggensack's views. A Wisconsin Law Journal analysis of the 2009-10 term found that Ziegler agreed with Roggensack 93% of the time and that Gableman agreed 91% of the time.

Roggensack, though, denies the claim that she has consolidated the most power on the court. "I am justice number five, which is my ranking in seniority. I'm just a team player. I listen to all my colleagues."

All four conservatives have been elected with multimillion-dollar campaigns, and have opposed the idea of recusing themselves on cases involving campaign contributors. The classic example of this was a rule adopted in July 2010, in a decision written by Roggensack.

After the U.S. Supreme Court ruled in 2009 that a West Virginia Supreme Court justice should have recused himself in a case involving someone who had donated $3 million to his campaign, state supreme courts were served notice that they should reexamine this issue. In Wisconsin, the League of Women Voters petitioned the court to revise its rules, proposing that a justice recuse if he or she received at least $1,000 from a party in a case being heard.

"We decided most people in Wisconsin think of $1,000 as being significant," says Andrea Kaminski, the league's executive director.

Instead the court accepted verbatim a rule suggested by Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association, which stated that a campaign donation by itself could never require a recusal. Bradley wrote a bitter dissent, joined by Abrahamson and Crooks.

The court looked like a rubber stamp for two groups that spent millions to elect Ziegler and Gableman and would later spend heavily to reelect Prosser. As Gimbel puts it, "You have four people who have a similar financial support system" of campaign donors. "Politicians at every level are interested in retaining their jobs, so you don't piss off financial supporters." Or as the Sheboygan Press editorialized in reaction to the new rule, "Is justice for sale in Wisconsin?"

The ruling put Wisconsin "noticeably out of step with national standards," Crooks declared in an article by Bill Lueders of the Wisconsin Center for Investigative Journalism. And Adam Skaggs of the nonpartisan Brennan Center for Justice agreed, charging that the Roggensack majority "basically ignored the U.S. Supreme Court."

Roggensack calls the rule a "clarification" of a prior rule. Geske disagrees: "To affirmatively state that [a campaign donation] is not an issue is really going further than the court ever has. I think this rule made the system worse."

Fallone is similarly critical. "If a judge has received a significant donation from a party on one side of a case, you're not going to believe that was an impartial decision. We can't allow the public to doubt the impartiality of the court."

Since then, the conservative majority has become ever bolder regarding such conflicts. Gableman received tens of thousands of dollars of free representation from the Michael Best & Friedrich law firm yet declined to recuse himself from nine cases before the Supreme Court involving the firm. Prosser joined the decision upholding the method by which Act 10 (which ended most public worker union rights) was passed shortly after winning an election where anti-union groups spent heavily on his behalf.

And Roggensack declined to recuse in a case where one party was represented by Donald Schott, an attorney who had represented her in a 2008 proceeding before the Government Accountability Board. She has also refused to disclose whether she received Schott's services for free or at a reduced rate. And when lawyers for the losing side filed a motion saying Roggensack should have recused herself, she actually participated in a decision ruling that she didn't need to recuse.

Her behavior received national attention. "Roggensack's participation in judging her own conduct showed astounding disregard for legal ethics and every litigant's right to impartial justice," The New York Times declared.

Dysfunctional court?

Fallone's biggest issue is what he calls a "completely dysfunctional" court, hamstrung by incivility that even extends to "personal sniping in [published] opinions."

Roggensack calls this "just a bunch of gossip at its worst" and says the court members are now getting along.

Few in the legal community seem to share this view. In March 2012, Justice Gableman wrote an essay for Wisconsin Interest referring to "the unfortunate cycle of hostility, recrimination and ill will that has plagued the court." Bradley wrote a decision a month ago where she called it a "myth" that "our issues of workplace safety and work environment have somehow healed themselves."

Geske says that she watched a recent hearing and that "the tension between the justices was palpable."

Fallone lays much of the blame on Roggensack. "She is not willing to work on the problem and give it the attention it deserves."

Roggensack notes that she wrote a letter (PDF) to the other judges suggesting the entire court issue a joint apology and condemn the conduct in the Prosser-Bradley altercation. Abrahamson, however, slapped this down, calling the letter "instantly divisive." Given that an investigation found probable cause to believe Prosser had violated the judicial code of conduct, it was striking that Roggensack instead blamed everyone on the court for what happened.

The conservative bloc has just enough votes to frustrate any attempt to address such issues. Their recusals killed the investigation against Prosser. When Crooks proposed retaining an expert in conflict resolution to assist the justices in addressing the workplace issues, Roggensack and her three fellow conservatives voted against it.

And in February 2012, Roggensack authored a proposal to end the court's 13-year-old practice of discussing court administrative matters in open conference. Her proposal to close these proceedings to the public was passed by the conservative bloc.

As reported by the Wisconsin Center for Investigative Journalism, Crooks called this "a major step backward" and "a terrible thing" to do. Gableman contended it would promote "consensus building and collegiality" among justices, which brought this rejoinder from Bradley: "To suggest that we would behave better behind closed doors is rather counterintuitive."

Fallone criticizes the new policy. "They were public for 13 years, they were on Wisconsin Eye, people could attend. I think the public wants a transparent court."

Losing faith

The loss of transparency will make it even more difficult for the public to evaluate the justices' behavior. Prosser, moreover, is not the only member who has been investigated: Both Ziegler and Gableman have been the subject of ethical investigations.

A change of just one member could have a profound effect: Suddenly there would be a majority vote for open administrative hearings, for a stronger recusal rule regarding campaign donations, and for addressing the Prosser situation.

"The mere fact of changing the personalities on the court would cause the remaining justices to deal with one another," Fallone says.

Roggensack says Fallone's criticisms "create further injury to the court" and hurt its image with the public.

But Geske says court members need to recognize they have a problem. "The court has to rebuild confidence in what it is doing, because what it's doing is not very good, and people are losing faith in the system."

[Editor's note: This story has been updated with the correct spelling of Ellen Brostrom.]

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