Hon. Patience D. Roggensack
Dane County’s legal community recently had an opportunity to pose questions to Wisconsin’s three state Su-preme Court candidates. Judges Edward R. Brunner, Paul B. Higginbotham and Patience D. Roggensack offered their thoughts on abortion rights, frivolous lawsuit sanctions, the U.S. Supreme Court’s handling of Bush v. Gore and more.
The Jan. 28 luncheon, hosted by the Dane County Bar Association began with familiar comments from the candidates.
Roggensack discussed the need for the court to have an appellate judge who could help the two courts interact more efficiently. She also highlighted her analytical process of developing decisions. Higginbotham discussed the diverse set of experiences he would bring to the court and his desire to make sure the system is fair to everyone who comes through it. Brunner focused on his work on a variety of administrative programs in Barron County and the need for clean government with his promise not to accept PAC money.
Questions and Answers
Audience questions dealt with a variety of issues ranging from women’s rights to states’ rights.
Higginbotham was very candid in his response to a question regarding whether the federal and state constitutions protected a woman’s decision to have an abortion. He clearly stated his support for Roe v. Wade and his support of a woman’s right to choose.
Hon. Edward R. Brunner
"It is important that a woman have a right to choose because it is about power," Higginbotham said. "It’s about a woman’s power over herself. It’s about a woman’s ability to be able to control her life."
He noted the difficulty in trying to set limitations. Most of those, which have been put in place, have infringed on the original decision in Roe v. Wade, he said.
Roggensack was more cautious about responding to the question.
"I think it’s improper … to take a position on a substantive issue that may come before the court," Roggensack responded.
However, she did indicate that she would enforce Roe v. Wade.
"I will take no substantive position other than to tell you that I will enforce the law," she said.
Brunner noted that a recent U.S. Supreme Court decision in Republican Party of Minnesota, et al. v. White, et al. opened the door for judicial candidates to talk about substantive issues during a campaign. The case dealt with Minnesota’s judicial campaigning restrictions, which prohibit judicial candidates from announcing their views on disputed legal and political issues.
"This is a touchy area when you begin asking issue questions," Brunner acknowledged. "But the recent Supreme Court case that was decided out of Minnesota said that judicial elections are fair game and that we ought to be discussing issues. Perhaps in Wisconsin our judicial code still requires that we not make any promises about how we would decide cases.
Hon. Paul B. Higginbotham
"My personal philosophy is one of supporting a woman’s right to choose. That goes with many other personal philosophies that I share when I take the bench."
However, Brunner said he would make no promises about how he would decide specific scenarios, indicating that it would not be proper to say how his beliefs would play out.
Frivolous Lawsuit Fees
During the program, Brunner found himself facing a question regarding his decision in Jandrt v. Jerome Foods to award Jerome Foods $716,081 in attorneys fees and costs. The ca
se dealt with an allegation that exposure to cleaning materials used at Jerome Foods contributed to birth defects in three children. Nine months into the lawsuit, which was originally filed in May 1995, the plaintiffs voluntarily dropped the case. In 1999, the state Supreme Court wrote an opinion in the case addressing the issue of frivolous claims.
Brunner indicated that he had issued the decision long before he decided to run for Supreme Court.
"Had I known that I was going to run and that it would be an issue, I would have decided the case exactly the same," Brunner told the group.
He noted that he had only applied the frivolous lawsuit statute once in his 15-year career. In the Jandrt case, he said that he felt the action in pursuing the case was egregious enough to warrant the application.
Dane County Bar Association Judicial Survey
The DCBA circulated surveys to its 1,400 members and 321 members responded. The following results are those members’ opinions regarding the qualifications of candidates for state Supreme Court and Branch 6 of the Dane County Circuit Court.
Wisconsin Supreme Court
Barron County Circuit Court Judge Edward R. Brunner:
Dane County Circuit Court Judge Paul B. Higginbotham:
Wisconsin Court of Appeals Judge Patience Roggensack:
Dane County Circuit Court – Branch 6
Madison Attorney Michael Anderson:
Madison Municipal Court Judge Shelley Gaylord:
Madison Attorney John Schuster:
"I wrote a decision that made sense giving the facts of the case," he said.
Brunner noted that the decision was the result of three days of testimony and six months of "laborious research and soul searching." Since there was no scientific support for the claim, he determined it to be frivolous.
Higginbotham declined to address the specific case, but indicated that he would discuss the issue of frivolous claims.
"I don’t think there is anyone in this room who believes that a case that doesn’t have any basis in the law and the facts don’t spell out that it has any basis in the law belongs in our court," Higginbotham said.
A judge’s role includes ensuring "that cases that belong in court should be there and those that don’t should find their way out of the system." He also indicated that he had awarded fees for frivolous claims in cases where there was no factual basis for the claim.
Roggensack noted that she had read both Brunner’s decision and the Supreme Court’s decision in the Jandrt case. However, she did not indicate how she would have decided the case.
"I will say that I have some concerns that echo Justice Ann Walsh Bradley’s dissent," Roggensack said. "This was a case that was filed shortly before a statutory change by a lawyer who thought he had a claim. When he, himself, found that he did not, he was the one who wanted to dismiss it."
She went on to state that it does have a chilling effect on the plaintiff’s bar when they are concerned abo
ut bringing a case where all of the elements are not in order.
"I think there is a chill right now in regard to plaintiffs taking cases where every duck is not in order," Roggensack said. "It’s not that I am opposed to awarding sanctions when a case is frivolous. There is a place for that. But I think you have to do that with care, as I do now."
Bush v. Gore
The three candidates were also asked their thoughts on the U.S. Supreme Court’s handling of Bush v. Gore and whether or not the court should have taken the case.
Roggensack and Higginbotham agreed that you would have to read the briefs before making a determination on the court’s final decision.
"Given the political climate and given the fact that this particular Supreme Court sees itself as being actively involved in things that occur throughout the United States, I was not surprised that they took the case," Roggensack said. "Regarding whether I think they rightly or wrongly decided it they are last, so they are always right."
Brunner noted that the Supreme Court’s decision to take the case shows a politicizing of the whole system. Instead, he said, courts should be ensuring that people view the justice system as something that they can trust to be free from politics.
"Whether it was right or wrong, time will tell," Brunner said. "I think one of the fall outs is what I talked about with regard to public trust and confidence in the court system. It’s not always whether it was legally right or legally wrong to do the things that we do. Sometimes as institutions we have to make sure that how we do them and when we do them make sense to the electorate."
Higginbotham indicated that he was not surprised by the high court’s decision to take the case, but that does not mean he agreed with it.
"I believed it was the proper purview of the state court and did not belong in federal court," he said.
Higginbotham anticipated the court would take it based on the equal protection clause.
"The U.S. Supreme Court chooses to review or not review state’s rights cases based on when it will benefit them," he said. "That is a sad statement to our society when our courts are making decisions based on political agenda rather what the law is before them. I won’t do that."
Candidates also faced a question regarding the issue on which Brunner has focused during the campaign accepting donations from political action committees. Brunner has promised not to accept PAC contributions and has challenged his opponents to make the same promise.
"I think it goes to the basic integrity of the court system and our governmental system," Brunner said. "We’ve seen what money and greed can do when it gets involved in government."
He referred to scandals at the state capitol, in Milwaukee County and Milwaukee City Hall. Even though it’s legal to take PAC money now, he said that judicial candidates should not accept it. Although it is fine for the legislative and executive branches, he said, it is not proper for the third branch.
"You can lobby legislators, you can lobby your governor, but you don’t lobby your judges," Brunner said. "That’s the difference."
Higginbotham said he strongly supported the impartial justice bill that is being introduced to the state legislature. He pointed to the importance of investing in the justice system by providing funding for judicial elections. However, that is not the reality of the current system that’s in place.
"Taking PAC money does not mean that one is dirty," Higginbotham said. "Clearly, the public has a right to know who the candidates are. One way in which that is to occur is to go on television."
Referring to himself as an "ordinary guy," Higginbotham said he did not have the kind of money necessary to run a statewide campaign.
"Frankly, as long as PAC money is both legal and ethical, I will be taking it in this race," he said. "I am not going to relinquish my independent nature as a judge. I am independent. I always have been independent and I will continue to be independent."
Roggensack noted that she did not see the question of taking PAC money as an issue in this race. Rather the focus should be on which candidate is the most qualified for the position, she said. So far, she added, no one has offered her campaign any PAC money.
"I’m concerned about people who only have $10 or $15 but want to contribute to the campaign," she said. "Should you prohibit them from participating in the electoral pr
ocess through that means by saying that you won’t take any PAC money.
"If you won’t take any PAC money, will you also not take checks that are $1,000 or more? It could be argued that those things influence judges as well."
She agreed with the importance of maintaining an independent judiciary, but challenged the notion that accepting PAC money would give a group control of a judge.
"I have some concerns about the inference that if you take PAC money you are somehow in the pocket of the group that contributed to the PAC," Roggensack said.
"The chief justice took a lot of PAC money in her last campaign and I don’t think there’s anyone in this room or anyone that I’ve heard of who would question her ethics or her independence at all."
The three candidates met Jan. 28 during a luncheon forum sponsored by the DCBA at the Concourse Hotel in Madison. Two of the three candidates will move forward following the Feb. 18 primary.
Tony Anderson can be reached by email.