The Wisconsin Supreme Court has a rich and storied history dating all the way back to 1847. But in the last few years, the court has become a place of tension and division.
It culminated in June of 2011 when Justice David Prosser allegedly placed his hands around the neck of fellow Justice Ann Walsh Bradley during an argument. Prosser has claimed it was in self-defense.
Justice Pat Roggensack, who is up for re-election next week, witnessed the incident.
"It was very upsetting to me because I personally put my body between two of my colleagues to stop a bad situation from getting worse and then I held on to Justice Bradley until she calmed down," Roggensack said. "I think the last time I broke up a fight was when my son Matthew was about six years old and he and his buddies were wrestling around on the floor and I chased them all outside. I found it a very upsetting thing."
When asked if she saw Prosser put his hands on Bradley's neck Roggensack replied, "Yes, unfortunately I did and yes, unfortunately it did happen. I mean it when I say I physically separated them. I put myself between the two of them. And that's what stopped what was going on at that particular moment."
That incident has become the centerpiece of the campaign for Roggensack's opponent, Marquette University law professor Ed Fallone.
"The personal animosity between the justices has affected their work," said Fallone. He says the incident and subsequent investigation shows the high court is dysfunctional.
"The court has been trapped in these cycles of hostility, ill will, recrimination, tit-for-tat grudges, and they can't seem to break out of it. That's why I believe it's time for a change in personnel and a new direction," he said.
The state's judicial commission accused Prosser of ethical violations but four justices, including Roggensack, recused themselves from the case because they were witnesses. That effectively prevented the case from moving forward.
"It's dead. It's not going to go anywhere," said former Justice Janine Geske. She says the court needs to rebuild its reputation.
"They clearly have a problem. They are in conflict and I think it has affected people's confidence in the court," Geske said.
While Geske works at Marquette Law School with Fallone, she says she is not endorsing anyone in the race.
Geske says Roggensack is among the court's conservative majority. If Fallone is elected, Geske says no one really knows how the balance of the court would shift.
"We know the kind of decisions Justice Roggensack is going to make because she has a 10 year record on the Supreme Court and then a record on the Court of Appeals. We don't know where Ed Fallone will decide cases," Geske said. "I think people are making assumptions that he will be more judicially liberal and I think maybe on some things, looking on his record, that may be a valid argument. But he's been a corporate lawyer. He's been a business lawyer. He may not be different than Justice Roggensack on some of those cases."
Wisconsin Supreme Court justices are supposed to be independent, meaning they don't run as members of a political party. But if you look at who is supporting the candidates, the difference between them is pretty clear.
Roggensack is backed by Republican Party groups and conservative donors. Outside groups including the Wisconsin Manufacturers and Commerce are running ads supporting Roggensack.
Meanwhile, Fallone is receiving a lot of support from Democrats and unions. The list of endorsements on his campaign website is a virtual who's who of Democratic politicians.
"I think what people see is that I'm an independent thinker and I'm open-minded and that I'll simply decide each case individually based upon the law," Fallone said.
When asked about the high-profile Democrats supporting his candidacy, Fallone replied, "I'm very proud of our elected officials who know me, have seen my work and have faith in my ability as a Supreme Court justice. I think what's notable to me is that I've been introduced at many events by people who say Professor Fallone may not agree with us 100% of the time, he may not rule the way we want 100% of the time but we know 100% of the time he'll give us a fair hearing. That's all I've promised anyone and I'm proud of my support."
Like Fallone, Roggensack gave an answer you'd expect from someone running for office.
"I don't like labels," Roggensack said. "I'll tell you what I tell everyone that always asks me to comment on that. I have a judicial philosophy. It is set by the Wisconsin Constitution. I don't consider it to have any kind of a label."
When asked about the support she's received from Republican and conservative groups, Roggensack said, "I think that they think that they look at my record and they think I have done a fair and an even-handed handling of the matters that have come before me."
So who will be elected the 10-year term on the court? We won't know until the election but it would appear that Fallone has an uphill battle.
In the primary, Roggensack
received twice as many votes as he did and she has also raised more money. And then there's history. A sitting justice has only been defeated five times in the last 161 years.
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