Roggensack Weakens Judicial Watchdog?

Patience Roggensack

A recent Journal Sentinel story reported on yet another dispute at the Wisconsin Supreme court, this time regarding the selection of a new member of the state Judicial Commission. The commission is the body that deals with ethics charges against judges, including members of the Supreme Court, and in recent years there have been charges against three of the four-justice faction that supported Pat Roggensack’s election as Chief Justice and voted to kill the John Doe investigation of the Walker campaign. Justice Annette Ziegler was charged for not recusing herself on a case involving her husband’s bank, Justice Michael Gableman for lying in a false campaign ad, and Justice David Prosser for putting his hands on Bradley’s neck.

So the appointee to the state Judicial Commission would be of great personal interest to these three judges, not to mention Roggensack, who depended on their votes to replace Shirley Abrahamson as chief justice.

Abrahamson wrote a dissent that called out her colleagues for changing the procedure followed to choose a Judicial Commission member:

I object to the secret and exclusionary process now being used by this court to appoint persons to the Wisconsin Judicial Commission. The process is antithetical to the process the court should follow——working together as a collegial court to select the most qualified persons to serve. … An open, transparent appointment process would help dispel any perception that justices of the supreme court may choose their own prosecutors in judicial discipline cases or otherwise improperly influence the Judicial Commission’s work.

Abrahamson does not name the person Roggensack appointed, but it appears her concern about the justices choosing their own prosecutors has substance. The person chosen, Joe Olson, is very much involved with Republican legal groups, including the Federalist Society and the Republican National Lawyers Association.

More important, Olson was also one of the attorneys sanctioned and excoriated by a three-judge federal court for obstruction in an earlier suit challenging the legislature’s gerrymandering of electoral districts to favor Republicans. The judges took the unusual step of blasting Olson and three other attorneys by name and specifying their punishment for their actions, which basically amounted to thumbing their noses at the federal court and the legal process. The judges’ decision starts out:

Quite clearly, the Wisconsin State Senate and Wisconsin State Assembly (collectively, “the Legislature”) and its attorneys are none too pleased with this three-judge Court’s prior orders … The Legislature’s dissatisfaction with the Court’s prior decisions is clear from its refusal to comply with those orders. … Rather than comply, the … Legislature has all but declined to cooperate with the plaintiffs’ reasonable … discovery efforts.

The decision continues:

To clarify, if perhaps the Legislature’s lawyer’s failed to read or understand the Court’s prior orders entered under the heading “Before WOOD, Circuit Judge, DOW, District Judge, and STADTMUELLER, District Judge,” the full Court considered the arguments of the parties, conferred and agreed upon an appropriate resolution, and entered both challenged orders accordingly.

The judges conclude:

As such, the Court finds it appropriate to impose sanctions in this instance. However, mindful of the fact that the state’s taxpayers would ultimately bear the cost of such sanctions, the Court will order that the Legislature’s attorneys, Eric M. McLeod, Joseph L. Olson, Aaron H. Kastens, and Michael Best & Friedrich LLP—those ultimately responsible for the sand-bagging, hide-the-ball trial tactics that continue to be employed—jointly and severally, make payment to plaintiffs’ counsel in the form of an award of attorneys fees and costs as a sanction by the Court.

It sure looks like Roggensack was looking for a partisan who would take every action possible — even ignoring higher court rulings — to protect Republican-leaning politicians. It seems safe to say that will include the four conservative judges on the court, should any of them ever face future ethical challenges. That might help explain why Roggensack changed the selection procedure for this appointment to a secret one, so the public wouldn’t be aware of what was happening.