Civil Rights Attorney Jeff Spitzer-Resnick explains the tragic nature of the dysfunction ailing the Wisconsin Supreme Court.
The current race for the Wisconsin Supreme Court, pitting incumbent Justice Pat Roggensack against challenger, Marquette Law Professor Ed Fallone, has centered on the severe dysfunction of the Wisconsin Supreme Court. This dysfunction boiled over in 2011, when Justice David Prosser choked Justice Ann Walsh Bradley in chambers. The dysfunction accusation continues because though the Wisconsin Judicial Commission brought ethics charges against Justice Prosser, his attorneys have succeeded in eliminating a quorum by getting enough of his colleagues on the Supreme Court to recuse themselves, thereby setting up an unprecedented example of one man being truly above the law.
Yesterday, I had the opportunity to attend the Dane County Bar Association’s Supreme Court debate. As expected, the dysfunction topic was thoroughly debated and I will not repeat most of the candidates’ positions here. Fallone clearly states that the Wisconsin Supreme Court needs a consensus builder and makes the case that he can play that role. Remarkably, Justice Roggensack alternates between claiming that there is no dysfunction on one hand, claiming the Court is hard at work, but then asserting that she is the best one to resolve the dysfunction due to her experience on the Court.
At one point, responding to Fallone’s accusation that the Supreme Court is so dysfunctional that it is deciding fewer cases, Roggensack responded by claiming that the reason the Supreme Court is taking fewer cases is because fewer cases are being heard by the Wisconsin Courts of Appeals. Indeed, she accurately recited the statistical drop in appellate cases. However, her reasoning for this drop was an unfounded assertion that it was due to the economy, as people cannot afford attorneys.
There is very little argument that the severe plunge in our economy started in 2008. Yet, the statistical drop in appellate cases did not start until 2011. Sadly, there is a much more important reason for this drop that goes to the very core of our system of justice.
Good lawyers do their best to predict the outcome of any case they take and they provide their prediction estimates to their clients, so their clients can make informed decisions about the amount of risk which they are willing to take into court. Sadly, there is a trickle down effect of the severe dysfunction of the Wisconsin Supreme Court. As many lawyers, including myself, lose faith that they can trust the outcome of cases in the Wisconsin Supreme Court, due to its severe dysfunction, they will advise their clients not only to refrain from taking cases to the Wisconsin Supreme Court, but to further refrain from taking them to the Wisconsin Court of Appeals. If one has no faith that the highest Court in the State can correct errors in our necessarily fallible human system of justice, in many cases, the wisest thing to do is opt out of the system of justice entirely.
Unfortunately, over the past nearly two years, since the Prosser choking incident, I have had to counsel numerous clients against entering the Wisconsin court system due to the high chance that the Supreme Court dysfunction creates an unpredictable outcome. Given that our system of justice rises and falls on the respect which average citizens, and the lawyers who represent them, have for that system, we are living through an era where average people have to choose between living with injustice or taking extreme risks with a dysfunctional system. This erodes the rule of law and the very basis for our 3 branch system of checks and balances as created by the framers of our Constitution.
One only has to look at the falling public confidence levels in Wisconsin’s system of justice to verify these concerns. Even the President of the Wisconsin Bar Association has called for Restoring Public Confidence in the Justice System. Indeed, in one year, public confidence in the Wisconsin Supreme Court fell from 52% before the Prosser choking incident, to a frightening 33% afterwards.
Keeping the current members of the dysfunctional Wisconsin Supreme Court, a majority of whom think that one of them is above the law, simply cannot repair the damage to Wisconsin’s system of justice that has now been festering for nearly two years. It is time for a new face on the Wisconsin Supreme Court, whom we should all hope has the skills to begin to repair the severe damage to the Court, and public’s confidence in it.
This blog post led to an interview with a reporter from the Isthmus who quoted me making the connection between the marked drop in Wisconsin jury trials and Wisconsin’s dysfunctional Supreme Court.
Earlier this year, I published, How Systems Change Happens. While I still consider that important advice for conducting effective systems change advocacy, earlier this week, I realized that I left out one critical element which is especially important to systems change advocates working on a tight budget: The Personal Touch.
One should never underestimate the importance of connecting with legislators or other important decision makers on a personal level. Although they may hold lofty offices, they are still human beings with thoughts and feelings just like all of us. Moreover, just like everyone else, they are more likely to respond favorably to people with whom they have a positive personal connection.
Earlier this week, in four different ways, I experienced how my personal connections with members of Congress, helped improve my advocacy for Middle East peace on behalf of J Street.
- During my meeting with Cong. Mark Pocan, I was able to open up the meeting with friendly references to the fact that our dogs do not get along and we kidded each other about whether one of our dogs belonged to the other party. While this may seem trivial, these are the types of connections that helped me convince him over 12 years ago when he was a member of the Wisconsin Assembly to be the first and only sponsor of our bill to eliminate the inappropriate use of seclusion and restraint on school children. His brave act led to the bill’s passage 12 years later as I previously described in my post on: Wisconsin’s New Law on the use of Seclusion and Restraint of School Children.
- Next, I met with Cong. Gwen Moore, whom I have known since early in my career when I was engaged in advocacy on behalf of the elderly and she was in the Wisconsin legislature. Our personal connection became quite clear when rather than the standard handshake, she gave me a big hug when she greeted me. Not only is she a strong J Street supporter, but she agreed to work with me on creating dialogue between J Street and black pastors in Milwaukee.
- J Street next scheduled a meeting for me with Cong. William Lacy Clay. In this case, since he is from St. Louis, I reached out to my in-laws from St. Louis to see if they knew anything about him that would provide me with that critical personal touch in our meeting. As fate would have it, my father-in-law e-mailed me right before the meeting to inform me that he used to rent his vacation house to Cong. Clay’s family. During introductions, I brought that up, which brought out a big smile from Cong. Clay and eased us into a very successful meeting.
- Finally, I met with Sen. Tammy Baldwin, whom I have known since she was in law school and applied for a job where I then worked at the Center for Public Representation. We didn’t hire her because we rightly knew that she was destined for a career in politics, but I wisely maintained a personal connection with her during her years in the Wisconsin Assembly, followed by her years in the US House of Representatives. With pleasure, I received my second Congressional hug of the day from Sen. Baldwin, and I was able to thank her for signing an important letter to President Obama, encouraged by J Street and signed by 27 Senators calling for a “Sustained, US Diplomatic Initiative” for Two-State Solution between Israel and the Palestinians.
Personal connections with key decision makers must be earned, but the work is worthwhile as those connections make a difference, especially for non-profits going up against well financed opponents when trying to engage in systems change.
Previously, I wrote optimistically about Putting an End to the School to Prison Pipeline. I suggested systemic approaches to this horrific problem, such as implementation of Positive Behavioral Interventions and Supports. As promising as this approach is, it does not solve the problem for children who are currently caught up in the School to Prison Pipeline.
Recently, I had the opportunity to work with an excellent local public defender, Debbie Stahl, who used a new approach to push back against the School to Prison Pipeline on behalf of her 14 year old client with multiple disabilities. As often happens in such cases, the court ordered a competency evaluation, and a psychologist met with the child for an hour and determined that he was competent to stand trial. Ms. Stahl learned that this psychologist made no inquiry into her client’s special education needs and failed to review his special education records.
After Ms. Stahl reviewed her client’s records and met with her client’s special education teacher, she concluded that there was substantial evidence that her client could not competently decide whether to accept a plea offer. Nor, could he effectively assist her at trial. So, she asked if I would review his records, meet her client and his teacher and testify as a special education law expert, with additional expertise on the ethics of representing a child with a disability. We both knew that this approach was somewhat experimental, but decided it was worth trying.
After I reviewed the boy’s special education records, and met with him and his teacher, I concluded that he could not make an informed decision about the plea offer, nor could he effectively assist his attorney during the trial. Indeed, his Individualized Education Program (IEP) required his school to provide him a note taker, and was replete with documentation that he was unable for focus for more than 10 minutes at a time, and often acted as if he understood something, when in fact, he did not.
Upon hearing my testimony, the court accepted me as an expert, and determined that Ms. Stahl had presented sufficient evidence to discredit the prior evaluator’s finding that the child was competent to stand trial. Accordingly, he ordered a new evaluation by a different psychologist.
While this particular case is not over, it does illustrate the creative ways in which lawyers can bridge the gap between special education and juvenile justice in an effort to connect them in ways that disrupt the School to Prison Pipeline. Hopefully, we and others can do this more often, and both schools and prosecutors will refrain from putting many children with disabilities through the School to Prison Pipeline unnecessarily.
While new and allegedly better standardized tests and an increased focus on STEM education (Science, Technology, Engineering and Math) is all the rage, if you ask businesses and economists whether standardized tests and more STEM classes will improve the economy, they will tell you that there is still something missing from our work force: Critical Thinkers.
An anecdote from my junior high school education illustrates this issue. My science teacher gave us a paper airplane assignment. The rules were simple. We could only use one standard 8.5×11″ piece of paper. We could not add anything (like a paperclip). We could tear the paper, but we could not remove any paper. We worked on our planes and the contest begun in the hall, the winner determined by the plane which flew the farthest down the hallway. Many fancy folds were made. However, my friend Brian made the simplest and best design.
Brian simply crumpled the piece of paper into a ball. Due to its density it easily flew the farthest and straightest. The teacher was furious as she believed he was making a joke of her assignment, and disqualified him, scolding him in front of the whole class. The truth is that Brian engaged in critical thinking and should have been praised for his simple yet effective innovation.
“When more than 400 senior HR professionals were asked in a survey to name the most important skill their employees will need in the next five years, critical thinking ranked the highest – surpassing innovation or the application of information technology.”
Certainly no one is suggesting that students do not need to learn to read and write or that STEM based classes are not valuable. But the heavy push towards evaluating schools and teachers based on standardized test results is the antithesis to critical thinking education.
Good decisions require focusing on the most relevant information, asking the right questions, and separating reliable facts from false assumptions – all elements of critical thinking. And yet too few employees possess these essential skills. A survey of HR professionals conducted by the Society for Human Resource Management (SHRM) and The Conference Board found that a full 70 percent of employees with a high school education were deficient in critical thinking skills. Even among employees with a four-year college education, 9 percent were deficient in critical thinking skills, 63 percent had adequate skills, and only 28 percent were rated excellent critical thinkers.
Sadly, since our educational system continues to get stuck in political rhetoric, one can even find political platform statements which fly in the face of economic progress, such as what the Republican Party of Texas wrote into its 2012 platform as part of the section on education:
“Knowledge-Based Education – We oppose the teaching of Higher Order Thinking Skills (HOTS) (values clarification), critical thinking skills and similar programs that are simply a relabeling of Outcome-Based Education (OBE) (mastery learning) which focus on behavior modification and have the purpose of challenging the student’s fixed beliefs and undermining parental authority.”
If politicians really want to promote education which improves our economy, they will increase emphasis on critical thinking and decrease emphasis on teaching non-critical thinking test taking skills.