Can the Wisconsin Supreme Court overcome its fractured relations? Observers fear a point of no return
MADISON – It was April 2017 when the Wisconsin Supreme Court, after a heated debate, rejected an effort to establish a rule requiring justices to step aside from cases involving their biggest financial backers.
"I think," then-Justice Shirley Abrahamson joked as the court wrapped up its debate with a 5-2 vote, "we maybe need a therapy session, but that's not for me to say."
Six years later, the conservative justices who outnumbered Abrahamson and Justice Ann Walsh Bradley on the recusal vote have lost what was once an iron grip on the court’s ideological majority — and Republican lawmakers are threatening the court’s newest liberal justice with impeachment if she doesn’t recuse from a case that could benefit her biggest campaign contributor.
This time, one former justice worries, a therapy session might not be enough to repair the fractures within the court that have only deepened since Justice Janet Protasiewicz was sworn in last month.
“So many harsh, terrible things have been said. It's going to be very hard, I think, for them to sit at a table and to be able to find common ground and to be able to compromise on whatever they need to compromise on,” former Justice Janine Geske said. “There are a lot of layers to this, somebody's going to have to work through, and I think it's going to be hard for them to be able to do it. … I don't know that it can be done.”
Sen. Van Wanggaard, R-Racine, recently likened the dynamic of the court to a “food fight.” Marquette University Law School professor Chad Oldfather calls it “a mess.”
“My guess is that (the conflict) just furthers the sense that has been growing for a while … that they're just political actors — that there's no difference between what they do and what members of the Legislature do. And that's a problem because they're not supposed to do the same job,” Oldfather said.
Campaign contributions not enough to force recusal
The 2017 vote was far from the first time the court sparred over recusal standards, but it was significant.
The court’s conservative majority — then-Chief Justice Patience Roggensack, Justice Rebecca Bradley, current Chief Justice Annette Ziegler and former Justices Michael Gableman and Daniel Kelly — voted to keep in place rules adopted in 2010 that say a judge "shall not be required" to recuse based solely on an endorsement or campaign contribution.
The conservative justices rejected a proposal to establish campaign contribution thresholds that would force a judge or justice off of a case involving the donor, arguing it would impede free speech.
"The question is whether we should tell judges and the state that we don't trust them to (determine when they should recuse from a case)," said Kelly, whom Protasiewicz defeated by 11 percentage points in the April election. "I think that's caustic and inappropriate and an unnecessary thing for us to do."
"Every judge and justice in Wisconsin should be highly offended by this petition because it attacks their integrity," said Rebecca Bradley, who is not related to Ann Walsh Bradley.
Last month, Rebecca Bradley criticized Protasiewicz for not stepping away from challenges to the state's electoral maps that are currently under the court's consideration.
"Despite receiving nearly $10 million from the Democrat Party of Wisconsin and declaring the maps 'rigged,' Protasiewicz has not recused herself from the case. These four justices will adopt new maps to shift power away from Republicans and bestow an electoral advantage for Democrat candidates, fulfilling one of Protasiewicz's many promises to the principal funder of her campaign," Bradley wrote.
Rules written by campaign backers
The campaign donation rules adopted in 2010 were approved by a 4-3 majority, with Abrahamson, former Justice N. Patrick Crooks and Ann Walsh Bradley objecting. Gableman, Ziegler, Roggensack and former Justice David Prosser voted in favor.
They were written by the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce, and came at a time when defense attorneys were trying to force Gableman off several cases because they believed his campaign statements showed a bias against criminal defendants.
The issue of recusal had flared up in 2007 when Ziegler stepped aside in a case between the Realtors and the Town of West Point. The town had asked her to recuse because she received $8,625 from the Realtors. Without Ziegler, the court split 3-3, sending the case back to the Court of Appeals, which ruled against the Realtors.
Ziegler took heat months later when she decided to stay on another case viewed as critical by WMC, which spent $2 million to help get her elected. Ziegler wrote the 4-3 decision that favored WMC's position, triggering hundreds of millions of dollars in business tax refunds.
Ziegler noted at the time that WMC was not a party to the case and neither side had asked her to step aside.
History repeats itself
The disagreements among justices continued over the next decade, including a physical altercation between Ann Walsh Bradley and Prosser, and an exchange during which Prosser called Abrahamson a “bitch” and said she would be “destroyed.”
In 2011, the court’s conservative majority ruled that if a justice is accused of bias and asked to recuse, only the justice can decide whether to stay on the case. That decision came after a dispute over whether Roggensack should have a say in whether she should remove herself from a case after a defendant requested she do so.
The court’s next major shakeup occurred after voters approved a referendum in 2015 allowing members of the court to select its chief justice. The role had, for the previous 126 years, gone to the court’s most senior member.
The conservative bloc voted to oust Abrahamson hours after the referendum results were certified, replacing her with Roggensack.
A month later, the justices sparred over Roggensack’s decision to hire J. Denis Moran on a temporary basis to serve as court director — a move Ann Walsh Bradley and Crooks argued violated court policy.
"This dictatorial style of leadership does not well serve the institution of the courts or the people who elected us," Walsh Bradley wrote in an email to Roggensack and the other justices at the time.
Roggensack had the court meet to discuss cases and Moran’s hiring. Abrahamson, Crooks and Walsh Bradley said Roggensack didn't have the power to convene that meeting because of a court rule that said meetings couldn’t be scheduled without the agreement of all seven justices.
"Now you have compounded an unauthorized meeting with an unauthorized offer of employment that has excluded input from three members of the court," Walsh Bradley wrote.
If that scenario sounds familiar, it should.
Randy Koschnick, who had served as state courts director since 2017, was ousted from the role by the court's liberal majority last month when Protasiewicz started her term. The liberal justices appointed Audrey Skwierawski, a Milwaukee County circuit judge, to replace him on an interim basis.
Koschnick has filed complaints since his firing with the Wisconsin Judicial Commission against Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky and Protasiewicz, as well as Skwierawski. Ziegler has said the decision to appoint Skwierawski "was made without regard for the Constitution, case law, or Supreme Court rules,” and pledged to post a job listing for the position.
"The four of you secretly and unilaterally hired Judge Skwierawski, without the input or knowledge of any of your remaining colleagues. That has never been how the court conducts its business and her hiring is unauthorized," Ziegler said in an email, addressed to the entire court and Skwierawski. "I cannot agree that Judge Skwierawski is a duly appointed Director. Her appointment was and is not lawful."
The liberal justices also voted Aug. 4 to change the court's rules, including the creation of a new committee composed of the chief justice and two justices picked by the court's majority members.
The liberal justices voted to shift powers from Ziegler to the new committee, in some cases eliminating the chief justice as the sole decisionmaker and instead assigning such jobs to the committee, including overseeing the state courts director, picking members of state-level judicial committees and the planning and policy advisory committee, and reviewing the court system's budget, among other matters.
“Your frantic emails and public statements notwithstanding, your power has been limited, in accordance with the constitution, which allows a majority to rule and to develop procedures you must respect,” Dallet wrote in response to Ziegler’s complaints.
'What the hell is going on up there?'
The current conflict is the result of a “convergence of abnormalities,” Oldfather said, noting that judicial campaigns have grown increasingly partisan, polarized and expensive over the last 25 years or so.
Add those mounting influences to a court with “long-standing group dynamic problems” and you’ve got “a mess,” he said.
“I just don't think there's an easy fix here,” Oldfather said.
Both Oldfather and Geske noted that a key difference, in this situation, is the public nature of both Protasiewicz’s comments and the justices’ disputes with one another.
“Even when I got to the court, many, many years ago, there were splits and personality difficulties and nasty remarks that happened, but they were kept at the table — and something would slip out a bit every once in a while, but it was not press releases, not making announcements,” Geske said. “I have a sense that the public looking at this … thinks what the hell is going on up there? Why don’t they get their act together?”
Geske looked back to former Chief Justice Roland B. Day’s tenure — just one year in that role — as an example of how to address interpersonal issues among justices.
It was no secret, she said, that Day and Abrahamson did not get along — but as chief justice, she said, Day made a point to facilitate lunches among the justices, among other efforts to increase the court’s sense of collegiality.
The best chance at moving past the current conflicts is to bring in an independent mediator, Geske thinks. Without that, it will be difficult to build trust without a fear of conversations spilling into the public, she said.
“I hope they get back on track, because people's faith in that court is really important,” Geske said. “And the court was really, really highly respected nationally for a long time, and unfortunately, they've lost that.”
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This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court fractures seen as difficult to overcome
