• WisPolitics

Supreme Court candidates differ on approach to court's internal strife
2/18/2013

Justice Pat Roggensack wants this spring’s Supreme Court race to be about experience. Challengers Ed Fallone and Vince Megna are trying to make it about the court’s dysfunction.

Round one of that debate ends Tuesday with a three-way primary that will winnow the field to two candidates for the April 2 primary.

The debate about the court’s dysfunction ratcheted up last week with Justice Ann Walsh Bradley’s court filing that accused Justice David Prosser of a history of abusive behavior and mocked Roggensack’s comments about the court's collegiality. Roggensack said late last year that the court was "doing just fine," adding, "we are working very well together, so don't give up on us."

Even before Bradley’s filing, Ed Fallone and Vince Megna had taken turns decrying what they saw as a court that needed a change in personality.

Fallone, who was interviewed prior to Bradley’s filing, said changing one person on the court could change the entire dynamic -- not just in how the justices interact with the new member.

“Old alliances fall apart because you can’t rely on them anymore,” said the Marquette Law prof, adding his experience on various boards has taught him how to stay professional and keep personalities out of the mix.

Megna was more blunt in his WisPolitics.com interview, which took place after Bradley’s filing became public. He accused Roggensack of lying to voters about the court’s internal problems. The lemon law attorney said electing a new member to the body wouldn’t completely change the court but would have a huge impact because it would break up the solid majority conservatives now enjoy. Instead, he said there would be three liberals, three conservatives and Justice Pat Crooks.

“Once the four-person block is gone, we then have a court that can actually work as a Supreme Court as it should,” Megna said.

Roggensack dismissed the allegations raised by Fallone and Megna over how the court conducts its business as a “smokescreen” because they don’t have her judicial qualifications.

“The race is not about the court. The court is not being re-elected. It is around one justice, Pat Roggensack, asking the voters to look at my record while I’ve been on the court, my experience that I bring to the job, my judicial philosophy. That’s what the race is about,” said Roggensack, who stressed she’s running a positive campaign focused on herself and not her opponents.

Roggensack acknowledged the court needs to “clear the decks with the public.” She said all seven justices are sorry for what’s gone on and said she wrote a letter she hoped Chief Justice Shirley Abrahamson would read from the bench to open the latest term. But Roggensack said she didn’t have a consensus on the letter.

In her filing last week, Bradley, an Abrahamson ally, called on her colleagues to reconsider a proposal to bring in an expert on conflict resolution to help the court work through its issues. A prior motion to do so was rejected 4-3 with Roggensack opposed.

WisPolitics.com interviewed the three candidates last week on a variety of topics. The following is a summary of those conversations.

**Experience**

Roggensack has made her 17 years on the bench – seven at the appellate court and 10 with the Supreme Court – the focal point of her campaign.

But Fallone and Megna insist there’s a flaw in her argument because she hasn’t been a trial judge.

Fallone equated his 20 years as a law professor with Roggensack’s experience at the appellate court and Supreme Court, saying both have spent their time critiquing judicial opinions. Fallone said he also has a broad background in representing various interests and has worked on issues such as a market-based approach to providing legal support for those who make too much to qualify for state representation but not enough to afford a quality lawyer.

“I also understand the issues that working families and immigrants face in seeking access to justice in our courts and have a long history of seeking practical solutions,” said Fallone, who would be the court’s first Latino member.

Megna touted his background representing clients, including arguing before the Supreme Court four times and being involved in two dozen appellate cases involving consumer protection laws that have been published.

He also argued he’s trying to do the same thing Roggensack did 17 years ago when she joined the appellate court without having first served at the circuit court. Megna said Roggensack argued at the time that it was better she didn’t have experience as a judge because she was more in touch with the public. He accused her of changing course now that it suits her and that she doesn’t deserve to be re-elected.

“I’m very disappointed in her and the way she’s handling her campaign,” he said.

Roggensack dismissed the knocks from her opponents on her lack of circuit court experience, pointing out the court has four members who served on that level and can speak out on issues that affect operations of those courts. Likewise, she can offer insight of life on the appeals courts, and she noted most of the cases the justices take are reviews of appellate court decisions.

“The question for the voters is, who has the best experience of the three?” she said.

**Ideology**

Megna has taken the unorthodox approach in this campaign in calling on his opponents to declare their party affiliations and whether they’re conservatives or liberals, insisting it’s disingenuous to suggest they’re not one or the other.

Roggensack noted Supreme Court candidates are prohibited from designating a party affiliation on the ballot and suggested Megna’s approach was an attempt to end run that ban. She also argued running in a nonpartisan race forces candidates to be bipartisan and pointed to the numerous law enforcement endorsements she’s won, saying they include Dems and Republicans.

“Most of the people that are supporting me, I don’t know what they are. You know what? I don’t care,” Roggensack said.

Fallone also took issue with Megna’s approach, saying judicial candidates embracing partisan labels feeds into the public perception that judges decide cases on political grounds.

“I think that is an expectation which is incorrect, and it undermines the public’s faith in the court when the public sees decisions of judges as having political motives,” Fallone said.

Though he’s won the support of a number of Dems, he said he has support from across the political spectrum.

Megna, though, declared Roggensack a Republican who answers to “Governor Walker, the Koch brothers and the Republican agenda.” He also insists Fallone is a Democrat, though he said the law professor has never told him that.

Megna has been open in declaring himself a Dem and a liberal and said he’s most aligned philosophically with Abrahamson and Bradley on the court.

“I think they care more about people, actual people, the same people that I represent and I’ve represented for 23 years, I care about those people,” Megna said. “I don’t care about the millionaires and billionaires, I really don’t.”

**Public financing**

All three indicated openness to public financing for Supreme Court campaigns, though Roggensack said there are higher priorities for the state financially.

Fallone said funding the Impartial Justice Act – the now defunct public financing system that was used in the 2011 race – could help combat the influence of special interest money in Supreme Court campaigns, though he said it’s hard to draw a conclusion about how successful the program could be based solely on one race.

“If someone gives you a million dollars for your campaign, they’re giving it to you for a reason and that reason is they expect you to vote a certain way, and that’s not right,” Megna said, referencing large donations to third parties that run so-called issue ads.

Roggensack noted the letter she and other justices signed several years ago supporting a "meaningful" public financing system for court races. She said the money provided in 2011 didn’t meet that standard and consequently outside groups were again driving the message in that race.

But with money tight, lawmakers should be more concerned with priorities such as making sure citizens have the basics.

“I think you want the candidate to drive the message,” she said. “My message is positive.”

Listen to the three interviews.
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