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.
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.