Watch our separate interviews with Ed Fallone and Supreme Court Justice Pat Roggensack at postcrescent.com.
Having never served as a judge, Marquette University Law Professor Ed Fallone relies on his years of experience in academia and the legal world in his bid Tuesday to unseat Supreme Court Justice Pat Roggensack.
Fallone points out that both Chief Justice Shirley Abrahamson and Justice David Prosser were not judges prior to ascending to the court.
“If you look at history, we’ve had many fine justices with no prior judicial experience,” Fallone said. “I bring broad expertise from teaching constitutional, corporate and criminal law and as a practicing attorney and leader of many nonprofit groups.”
In an interview Thursday on Newsmakers, Post-Crescent Media’s online issues show, Fallone said the dysfunction on the state Supreme Court is a calling for change. Here’s an edited transcript:
The public hears a lot about the 4:3 conservative/liberal split, but Justice Roggensack said only a few decisions fall that way. Is it perception or reality?
Partly perception, partly reality. It’s a concern due to the dysfunction on the court. When they snipe and can’t get along, the general public views that as due to partisan differences, and it undermines the public’s faith that they’re acting independently. I’m not running with any agenda. If elected, there won’t be a shift from 4:3 one way or another. I’m independent and not part of any bloc.
How often do you agree with Roggensack?
It’s hard to say. I would probably disagree with any justice because I don’t agree 100 percent of the time. There is no clear answer many times in the law. I am concerned by some of her opinions and some of her approach. Two things concern me; the first being that she writes alone, in some cases is not willing to compromise on issues where compromise is possible. They too often write separate opinions. They should try to write with one voice or few as possible. They also reach out and decide on issues that aren’t necessary. The most important thing they do is interpret the state constitution, but the only way to change that is through an amendment, which is a very difficult process. If there are ways short of reaching the constitutional question, they should do that as their first option.
If elected, would you be willing to go along with majority opinions?
It’s about building trust and building consensus. When Chief Justice John Roberts had his confirmation, he addressed this. Too often they write separate opinions in the same case and leave the legal landscape more unclear than they found it.
How is it that funds for an election come from one side or another? Why do liberals want you on the court?
Because I’d be a great justice and be independent. One thing I hear again and again when I get introduced is, “Professor Fallone isn’t going to rule the way we’d like 100 percent of the time, but he’d give us a fair hearing and we’re not getting one now.” Some groups don’t feel they’re getting a fair hearing. All I’ve ever promised is to be independent and open-minded.
What’s your opinion of judicial advocates? Have you been charged with that?
I take a very cautious approach to the law and as a constitutional law scholar, I teach students that it’s not the job of the judiciary to second guess policy by other branches. Under our constitutional system, we have two political branches that in solving problems chose different ways. It’s not the job of the judiciary to second guess their choice, but to be independent and to be a check and balance to ensure the Legislature stays within the bounds of their powers and doesn’t take an approach that violates our constitutional rights. That’s why it’s so important courts don’t fight amongst themselves because they have to be the defender of our rights.
Is there a specific case where they’ve gone out of bounds?
Wisconsin v. Forbush. That was a case where law enforcement needed some guidance. They needed to know under state constitution when they discovered a suspect had a lawyer, did they need to stop the interrogation. Under our constitution, the answer was “yes,” but on the U.S. Supreme Court the answer was “no.” So do we follow the Wisconsin constitution or Supreme Court? Instead of choosing one clearly, they issued five separate opinions. Three saying it has to stop; two saying it can go forward. So law enforcement has no guidance, they don’t know what types of confessions will get thrown out. Unfortunately it’s that inability to give clear guidance that is an example of the dysfunction.
How can the public know that if you’re elected you won’t just be on the liberal side and the dysfunction will continue?
I have never characterized the divisions on our state supreme court being liberal or conservative. I do have substantial experience serving on multi-member bodies, serving on the board for Catholic Charities, and as the chair of Marquette’s faculty governance committee. I’ve learned you inevitably have policy differences, but you don’t personalize them, or question intelligence, you simply say “we disagree.” Hopefullly that will break through the mistrust on the court. You also have to lead by example. I have experience demonstrating my own willingness to compromise, finding common ground and I think that’s missing from our court. Hopefully through my conduct, I can build some trust and get the court working effectively.
In the Prosser-Bradley disciplinary situation, the court and Justice Roggensack believe they can’t get involved in the process at all, so it’s in limbo. Do you agree?
No. We had the normal disciplinary preceding under way. The Judicial Commission that investigates and prosecutes allegations, the normal next step would have been to refer that to a three-judge appellate level. At that stage, it’s a pretty automatic step. There’s no need for justices to do anything other than send it on. No need to find facts or anything that would require them to serve as witnesses or testify. It was very premature. Under our statutes the recusal statute that Justice Roggensack points to only applies to civil and criminal cases, not a disciplinary proceeding. Elsewhere when it has the procedures for those proceedings, you only apply those where it’s practical. It’s just not practical to apply it when the whole case goes into limbo. Because of that, they recused very early and we’re stuck in this limbo.
Justice Roggensack has said the best the court can do is issue a letter of apology as a public statement. Is that enough?
No. I disagree that’s enough. It’s a poor substitute for the normal disciplinary process. The commission found probable cause for violations of the code of conduct. This doesn’t assign responsibility to anyone by name and uses passive voice like “mistakes were made.” Under our state constitution, the only body that has power to censure a judge is the Legislature, so for the court to come up with an alternative would be contrary to the constitution.
Would Wisconsin be better served with appointments instead of judicial elections?
As a candidate, I absolutely appreciate the fact we elect our judges. I’ve traveled around our state and I spoke with a dairy farmer in Mosinee. The law affects him with immigration law, as well as intellectual property law and I hear the concerns and now can go the bench with a wider perspective. The downside is money because it becomes much more important. The special interest groups are willing to make very large contributions. That worries people about the influence, and that’s why I’ve talked a lot about what we can do to minimize the impact of those dollars by revoking the “Roggensack Rule” and allowing for public funding.
What should be the donation limit that triggers automatic recusal?
I’m asking for a return to previous rule. Any party that feels a judge might be biased due to a contribution, a motion could be made to step down. The judge would consider the size of contribution. A lower amount but close in time might be significant. I’m not necessarily suggesting a set dollar amount. Anyone who feels their judge might be biased, they should have ability to ask they step down solely for that reason.
Would you oppose a rule that does set a limit, like what the League of Women voters proposed?
I wouldn’t necessarily oppose that rule. I think if we set a limit, I think we should study the issue and particularly we should get input from the other judges around the state. There are two separate provisions that could apply, there’s a mandatory disqualification provision — it would have the effect of forcing a judge to step down — and there’s some concern that forcing a judge off a case would lead to some game-playing by attorneys.
If elected, would you give that “public perception” the benefit of the doubt when deciding for yourself?
The first thing I’d do would be to repeal the “Roggensack Rule” — then under previously existing standard would be the size and circumstances of the contribution and whether I thought a reasonable person would doubt my impartiality.
Roggensack authored the proposal to end administrative hearings in public. You’ve vowed to make court more transparent. How?
The court should reopen its administrative meetings. It’s notable that Justice Roggensacks’s motion came after their discussions about civility. I think we have three branches of government. When the court operates administratively and decides on a multimillion budget with issues like security and pilot programs and making our judicial system more cost effective, those meetings should be open and transparent.
Why not run in 2010 against Justice Prosser?
I sought an appointment to the court for the seat Louis Butler was appointed to. Really what happened was we’ve reached a stage where as a law professor and teaching about high standards of conduct that local and national media had underscored the dysfunction of our court, in our to get our court functioning we have to change personnel.
— Nick Penzenstadler: 920-996-7226, or email@example.com; on Twitter @npenzenstadler