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Recusal an Issue in Wisconsin Supreme Court Race

Ed Fallone, who is challenging incumbent Patience Roggensack in Wisconsin Supreme Court election, say justice should have recused herself from a case involving attorney who also represented her.

In 2010, the Wisconsin Supreme Court reinstated a criminal conviction against Dimitri Henley. Afterward, his lawyers filed a motion arguing that Justice Patience Roggensack should have recused herself from taking part, given her role in a case involving Henley’s co-defendant.

This motion was later denied, on a 4-3 vote. What surprised and even shocked some court observers was that Roggensack took part in this ruling.

“Justice Roggensack’s participation in judging her own conduct showed astounding disregard for legal ethics and every litigant’s right to impartial justice,” thundered the New York Times.

But it was in keeping with what Roggensack, now seeking a second 10-year term, has helped make the standard — that individual justices have sole authority to decide whether they should recuse.

Consider the case of Polsky v. Virnich, which the Wisconsin Center for Investigative Journalism reported on last year.

Michael Polsky was the receiver representing the creditors of a stereo components company that went bankrupt. He alleged that its owners, Daniel Virnich and Jack Moores, had plundered the company through excessive payments to themselves.

In 2006, a jury agreed, ordering the pair to pay a $6.5 million judgment, the largest in Wisconsin that year. The case came before the state Supreme Court — twice. The first time, Roggensack did not participate, without explanation, as court rules allow. The second time, in 2011, she cast a critical vote to upend this judgment.

The attorney for the victorious defendants was Donald Schott, who also represented Roggensack in a 2008 proceeding before the state Government Accountability Board.

Both Schott and Roggensack have refused to say whether his services were provided for free or at a reduced rate. The question arose because another justice, Michael Gableman, received free legal services from an attorney whose firm had cases before the court. A recent request for comment made through Roggensack’s campaign adviser, Brandon Scholz, yielded no response.

Marquette University law professor Ed Fallone, Roggensack’s challenger in the April 2 election, is seeking to make recusal an issue in this campaign. He says Roggensack “bears a large part of the responsibility for pushing through” a 2010 change in court rules stating that mere receipt of campaign contributions or endorsements can never in itself require recusal.

In a news release, the Fallone campaign has dubbed this the “Roggensack rule,” saying it “allows interest groups with cases before the court to make campaign contributions to justices.”

Roggensack has defended this change, telling a legislative committee that “money spent to communicate during an election has long been held to be an element of speech, and therefore such expenditures are protected by the First Amendment.”

Fallone, who signed the recall petition against Republican Gov. Scott Walker, does not think general opinions should be grounds for disqualification, because judges are expected to put these aside. He would disagree, for instance, with calls for Gableman to sit out criminal cases because of statements he made as a candidate suggesting antipathy toward criminal defendants.

But Fallone says campaign contributions from parties or lawyers may require recusal: “We should always be concerned that the courts are not perceived as being for sale.”

State Rep. Gary Hebl, D-Sun Prairie, last year introduced bills to make parties to a case disclose judicial contributions, require judges or justices to explain in writing if they refuse a request to step aside, and create a new standard requiring recusal whenever “a reasonable person would question whether the judge could act in an impartial manner.”

The bills went nowhere, but Hebl plans to reintroduce them in the current legislative session.

Fallone supports all of these changes. But he may not got the chance. Roggensack bested him by a 2-1 margin in the primary and has a sizable lead in reported campaign cash. According to the news source WisPolitics.com, insiders are wondering whether Fallone will muster enough support to run a credible number of TV ads.

ART FRIEDMAN March 28, 2013 at 02:13 AM
Why not let the marketplace of ideas decide the winner instead of shutting down the voices of big business and big unions? The US Supreme Court has decided (in their infinite wisdom -ha!) that BIG money can do as it pleases when it comes to voting.
ART FRIEDMAN March 28, 2013 at 02:16 AM
BOTTOM LINE: Examine the record of Mr. Felonious and you'll get a picture you do not want to see in any office.
John Wilson March 28, 2013 at 03:04 PM
ART FRIEDMAN - Dear “Patience” Drake Roggensack was elected to the Wisconsin Supreme Court in 2003 – born July 7, 1940 in Joliet, Illinois, and will be 73-years old this July. I mention this only because I am somewhat concerned about her ability to function – CRS (Can’t Remember S**t) and incipient Alzheimer’s aside – in any cognitively meaningful manner, which might be of some relevance in the position of a Supreme Court Justice. This Supreme Court Justice stated that there have never been any “inappropriate” incidents in Wisconsin’s Supreme Court. That leaves me somewhat curious regarding her eye sight and her definition of “inappropriate”. Experience is certainly not a meaningful issue here, as she has clearly demonstrated that she does, indeed possess an impressive record with decades of voting for businesses, huge corporate interests, and people with hefty bank accounts. And then there is that troublesome “Roggensack Rule” regarding what rules should be in place to determine when a justice must step down from cases because of real or perceived conflicts of interest. It is Patience’s contention that no matter how much money you give to her candidacy and what her personal relationship is with the contributor, that she can still judge the case fairly. Finally and perhaps most important of all, will she be capable of any adequate defense against the infamous David T. Prossser, Jr,’s choke hold, should she be reelected…
ART FRIEDMAN March 28, 2013 at 03:18 PM
John Wilson, et al, The Supreme Court of the USA tells us that when a justice cannot perform exactly how this is handled. May I suggest that a more meaningful discussion on the 2 candidates is 'who is the moral candidate?' Mr. Felonious talks about recusal, but remains silent about all the labor money he has amassed. His logic is deeply flawed because no Justice could perform if they must recuse themselves based upon past support. The Socialists among us want a court to act based on per-conceived formats. That is never justice, but politics. The electorate ought vote on the personal merits of each candidate. don't you think?
John Wilson March 28, 2013 at 04:31 PM
ART FRIEDMAN – “The Supreme Court of the USA tells us that when a justice cannot perform exactly how this is handled.” Please cite me the source for this assertion? More importantly, please cite me ONE justice in the USA that has been removed by the process that you assert. Furthermore, we are discussing the Wisconsin Supreme Court here, not the SCOTUS. May I suggest that if you want to discuss “morals” that you 1) stop calling a candidate for the Wisconsin Supreme Court “Mr. Felonious” (?) 2) define what you mean by ‘who is the moral candidate’ (?) 3) provide some objective metric of what “moral” may mean to you, who displays a stunning lack of morality – implying a candidate is a felon – would be deeply appreciated. It is clear that the Republicans and the Voucher School folks support “Patience” with their $$$. It is equally clear that the Democrats and the Unions support Fallone with their $$$. In an “ideal world” we would indeed merely assess any and all candidates for office on their merits; however, we do not live in an ideal world, and whether you like it or not, admit it or not, decisions about any candidate for office are always extremely political in nature; you might also add to that race, religion, value systems, social status, individual prejudices and biases. I do not agree with your assessment regarding Mr. Fallone’ s stand on recusals; in fact, your assessment is ludicrous.

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