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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Leader of The Conservative Bloc

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.

Article Continues - Pages: 1 2 3 4 5

Categories: Murphy's Law, Politics

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:

  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:

    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

    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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