Bruce Murphy
Murphy’s Law

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.

By - Mar 21st, 2013 09:19 am
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Justice Patience Roggensack

Justice Patience Roggensack

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.

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27 thoughts on “Murphy’s Law: Can Fallone Beat Roggensack?”

  1. George Mitchell says:

    Bruce says the issues could hardly be bigger after a column that does not mention the glaring, Grand Canyon-like gap between the credentials of the two candidates.

    Bruce somehow thinks Justice Roggensack’s recusal is the biggest issue. That is silly.

  2. Kyle says:

    Well, since Bruce would probably like to break the conservative majority, I doubt he has much interest in pointing out the credentials of both candidates. He can make the case for Fallone simply by tying Roggensack to the Prosser-Bradley incident and letting that bring back all the emotions of Act 10 and the protests.

  3. barbula says:

    Aren’t we straining at gnats and ignoring the elephant? This big deal over a “he said, she said” squabble vs. an unqualified candidate with poor judgment: http://www.jsonline.com/news/statepolitics/court-candidate-ed-fallone-stood-by-latino-centers-exgang-leader-9292oon-197708431.html

  4. Bill Sweeney says:

    The first step to resolving any problem is to recognize that there is a problem. The Wisconsin Supreme Court used to have a reputation for integrity. People could disagree with the substance of the decisions that were made, but at least they did not believe that the decisions were for sale. Judge Geske certainly has a widespread and deserved reputation for integrity. Her opinion is that “people are losing faith in the system.” That is a major problem which Justice Roggensack prefers to ignore. That, in and of itself, is reason enough to elect Fallone to the high court. Presumably being a professor of Law at Marquette University establishes that Fallone has a good grasp of issues that might come before the Court, and his background and community service would add a much needed different perspective. Time for a change.

  5. Bruce Murphy says:

    To George and Kyle: you’re free to characterize me anyway you like but the story does in a couple places note Fallone’s lack of experience relative to Roggensack. To wit:
    To Scholz, the election “boils down to one word: experience.” The campaign released a very effective ad touting Roggensack’s 17 years experience presiding over 550 Supreme Court cases and 2,400 appellate cases. Fallone, by contrast, has never been a judge.

  6. Kyle says:

    Bruce, I apologize for my quick characterization of your story. I missed the additional tabs and based my characterization on the first page, which is almost entirely devoted to the Prosser incident.

  7. matt says:

    George Mitchell, what is silly is your apparent belief that people don’t know who you are. Are you getting paid to opine in this comment section? Give them their money back (or is it more of an in kind contribution? Then give us our court back.)

  8. Patty says:

    I bet putting a pointless referendum on the ballot would increase the liberal voter turnout in Milwaukee. Let’s see if this ends up influencing the outcome.

  9. Kyle says:

    Okay, having taken another moment to read through everything you’ve written, you do mention the credentials. The weight you give the credentials is miniscule, but they are mentioned. I still think your story is slanted so much that it could be posted on Fallone’s campaign page.

  10. sn says:

    A platform based on fixing dysfunction is pretty hollow. It would be different if Fallone could demonstrate a history as a collaborator or someone who brought divergent interests together. He’s not Geske, who is very skilled at that. OTOH a debate about judicial decision making (Fallone has written very clearly on this) would turn off even more of the public.

  11. Dohnal(Wis. Conservtive Digest says:

    Interesting to note that the sheriff and special prosecutor found no evidence of any wrong doing by anyone. Also out fact that Bradley charge Prosser and Prosser put up his hand to stop her from attacking him. Should he have stopped her by putting up hands to her boobs?
    Franklin Gimble is a partisan democrat, you might mention that.

  12. Bruce Thompson says:

    Matt’s comments about George Mitchell trouble me. Rather than reacting to George’s comment, he takes the easy route by attacking the messenger. I sometimes agree with George and sometimes disagree, but always find him interesting and knowledgeable.

    But that brings up the thing that most troubles me about Roggensack: she seems unable to make the thought experiment that asks, “if the parties were reversed but the issues were the same, would I vote the same way?” If the special prosecutor had decided the evidence supported charges against Bradley rather than Prosser would she still have scuttled the investigation by recusing herself?

    Likewise if Doyle and the Democrats had passed significant legislation without sufficient legal notice, would she have still voted to uphold the legislature on the grounds it had effectively voted to change the law? Likewise, if a law passed by Democrats was blocked by a circuit judge would she have voted to overrule the injunction without waiting for a published opinion or hearing from the court of appeals?

    Obviously we will never know the answer to each of these hypotheticals, but I believe the weight of the evidence says the probable answer is no.

  13. dohnal(Wis. Conservtive Digest says:

    I have never heard a judge discuss things in that manner, they do not discuss cases in the future or past.

  14. Dohnal(Wis. Conservtive Digest says:

    Interesting to see Peg Lautenschlager, the town drunk, comment on how Prosser’s actions should get him fired.

  15. stacy moss says:

    So sweet……………………He remembered “the warmth on the side of Justice Bradley’s neck in his hands.”

  16. dohnal(Wis. Conservtive Digest says:

    How did Justice Bradley get to where Prosser was and in what mood was she? the investigators report said that she was yelling at him to get out of her office and some Justice’s said that she had her fist raised in a threatening manner and some did not. Anyway you call it it was an assault on Prosser. he should have pushed her away in the chest I guess just like if it had been Gableman coming at him.
    Any way is is well established that Roggensack got between them to make peace.

  17. stacy moss says:

    I doubt he (Bruce) has much interest in pointing out the credentials of both candidates.

    OMG….. credentials, credentials, credentials. Sounds like a “talking point” to me.

    Let’s start with George Bush II (drank his way through college, failed in the oil business, and used his father’s name to get into the baseball business) or Paul Ryan compared to Paul Krugman on economics.

    By the way, Newton had no “credentials” when he discovered gravity.

  18. Kyle says:

    Stacy, I suggest you put exactly that on a cover letter next time you apply for a job. Why on earth should you have to be qualified for a job? Experience and education are just “talking points”!

    I’m not going to go the other direction and suggest that youth or new ideas don’t have their place. Everyone has to start somewhere. My issue is that Roggensack is being attacked for the actions of two coworkers, and on her judicial stances. I don’t see any insight regarding any staff conflicts at Marquette Law, or any critique of stances Fallone has ever taken. I’m not a big fan of judges on the highest court having never been a judge before. I’m willing to work past that, but ignoring it in favor of several pages on an incident involving two different people not up for reelection doesn’t do anything to address my concerns.

    Roggensack didn’t put her hands on Bradley’s neck, nor did she charge at Prosser, so I’m not inclined to hold that against her. That brings my choice down to an experienced judge versus a law professor at a Jesuit university.

  19. Kyle says:

    For anyone reading this who would like to know a little bit more about Ed Fallone and his opinions, please check out his own writings:

    http://law.marquette.edu/facultyblog/author/edward-fallone/

    He even quotes Orwell, which should make Ed happy (if he’s still reading comments on this site).

  20. Dohnal(Wis. Conservtive Digest says:

    I have and guess what? He is a left wing University professor backed by the left wingers in Wisconsin. Your choice.

  21. Kyle says:

    Oh, I know. But that isn’t the impression you’d get reading this article. I just figured I’d point people to the best information available to guess what his real views are.

  22. Paul says:

    If experience is a factor – consider that Prosser had 0.0 experience as a judge. Fallone is eminently more qualified than Prosser was when he was elected.

  23. Kyle says:

    Eminently: To a high degree: Very (from Merriam-Webster.com)

    Prosser had some experience in a law office, but more as a legistlator. Fallone ‘also practices law’ but spends more time as a professor. (None the the bios I found would say how much or how long he’s practiced.) So as far as I can tell, Paul, your claim is that professors, by nature, are far more qualified at anything than politicians.

    If I lived and voted in Wisconsin when Prosser was appointed in 1998, I wouldn’t have liked his lack of judicial experience. Ditto for when he was elected in 2001 (depending on who ran against him – I haven’t checked). By 2011, he’d had 13 years on the bench to judge, versus Kloppenburg’s career (not that any of that played a role in that particular race).

    Maybe the deeper issue is that too many Wisconsin Supreme Court candidates don’t have any judicial experience before they’re appointed or elected the first time. Experience is a factor, but it’s not the only factor. Another factor is a candidate that claims (from his own website) “We need Justices that have the courage to be independent in the face of political pressure …” but who blogs regularly about the ACA and Act 10.

  24. dohnal(Wis. Conservtive Digest says:

    Let us see, you are more qualified to be a judge if you read about the law then if you make it. Do not think so.

  25. Kyle says:

    Dohnal, you forget to add eminently. You are eminently more qualified to be a judge if you read about the law than if you make it.

    I’m glad I could clear that up for you.

  26. andy says:

    Go Fallone. Fallone should win. Last fall WI carried obama and senator baldwin by a large margin. WI is distancing itself from anyone tied to Walker. If Fallone wins, I think the governor job is wide open in 2014.

  27. Andy says:

    Fallone should win on what basis, andy? Is it his lack of experience?

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