Can Fallone Beat Roggensack?
Pat Roggensack leads the Supreme Court's conservative bloc and may be its most powerful justice. Ed Fallone blames a "dysfunctional court" on her.
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 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,” 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 a resolution of 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.