Disrespectful Justice

This afternoon, I had the opportunity to attend the Wisconsin Supreme Court candidates’ debate sponsored by the Dane County Bar Association between incumbent Justice Rebecca Bradley, who was recently appointed to an open seat by Gov. Scott Walker, and Court of Appeals Judge JoAnne Kloppenburg. As both candidates covered familiar ground, I did not expect to learn anything new that would result in my writing a blog post. After all, I have recently written another post about this campaign, and I have publicly endorsed Judge JoAnne Kloppenburg, whom I have known for her entire legal career.

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Justice Rebecca Bradley

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Court of Appeals Judge JoAnne Kloppenburg

However, towards the end of the debate, Justice Bradley was asked about the well publicized time when she walked out of oral argument before it was finished in order to give a campaign speech to a conservative business group. While I certainly did not expect her to apologize or admit that she had done anything wrong, since she has defended her decision to depart from oral argument early, her response made me realize that Justice Rebecca Bradley truly does not understand how her actions impact upon attorneys and litigants.

She told a large group of attorneys that she, “could not have learned anything else,” if she had stayed for the final 15 minutes of oral argument because she had already asked all the questions she had, and that she watched the video recording of the argument she missed afterwards.

I was stunned. Justice Rebecca Bradley admitted to a large group of attorneys that it was unfathomable for any further questioning from the other 6 Supreme Court Justices, or any of the answers from either attorney for the party to educate her in any way. This is simply the height of pomposity and egotism. As someone who has practiced law for over 30 years and has presented appellate oral argument many times, it is abundantly clear to me that many appellate judges think of new or follow up questions based on a colleague’s question, or an attorney’s answer. Apparently, Justice Rebecca Bradley cannot conceive of that possibility and felt that it was more important to give a campaign speech.

As if that was not audacious enough, Justice Rebecca Bradley went one step further to reveal that she has very little respect for the parties in legal proceedings. When pressed about the possibility that she might have learned something new during the portion of the argument she missed, she said that if she felt that was the case after watching the video, she would have required the parties to return to the Supreme Court for additional oral argument.

Once again, I was stunned. Is she completely unaware of the cost to the parties to require attorneys to prepare for and present oral argument a second time, just because she had to make a campaign speech instead of doing what she was appointed to do? As a practicing attorney, I know that the additional cost would have been in the thousands of dollars. Of course, her request would have also delayed the proceedings and final decision, raising anxiety for both parties in the process and delaying the ultimate outcome.

After you strip away all the campaign rhetoric, Judge Rebecca Bradley‘s answers defending her inexcusable departure from oral argument to give a campaign speech makes one thing perfectly clear: she does not respect the people who come before the Wisconsin Supreme Court, and on that basis alone, she does not deserve to win the upcoming election to a 10 year term on that court.

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For more information on how Jeff Spitzer-Resnick can help you accomplish effective, progressive systems change contact him by visiting his web site: Systems Change Consulting.

 

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The True Meaning of Supreme Court Dysfunction

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 SystemIndeed, 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.


For more information on how I can help you accomplish effective, progressive systems change e-mail Jeff Spitzer-Resnick or visit Systems Change Consulting.