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.