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.
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 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.”
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.”