Both Supreme Court candidates will emphasize experience

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“The public is better served by a clear unanimous rule of law. Appellate judges need to ask, ‘how can we best let the public understand, the next time this issue arises, on which side they fall.’” Hon. Patience Roggensack

The two remaining candidates for the Wisconsin Supreme Court, Barron County Circuit Court Judge Edward R. Brunner and Wisconsin Court of Appeals Judge Patience Roggensack, are entering the final leg of the campaign, to be determined on Tuesday, April 1, with both candidates stressing their respective experience in the trial and appellate courts.

In an interview with Wisconsin Law Journal, Roggensack stressed the significant difference in not only the day-to-day work, but the institutional nature of the courts, noting that, like the Supreme Court, the court of appeals is a collegial one in which the judges must work with others to reach a decision that states a clear rule of law for prospective use.

Roggensack stated that she has only filed a dissent in 11 or 12 cases in her six years on the court, and that in the rare instances she has, the Supreme Court has frequently reversed and adopted her position. Roggensack also emphasized her experience in discussing cases with the other judges on the court to produce a final decision that is not only correct, but clear and helpful to parties and judges in future cases.

While a trial court judge need only issue a decision that resolves the issues for the parties involved, Rog-gensack said, “The court of appeals and the Supreme Court decide law for other parties. Decisions must be written in a way that takes a long look at the law. They must be framed so they provide prospective guidance.”

Roggensack noted that many of the splits on the current Supreme Court have nothing to do with any liberal/conservative division, adding that the current justices are much more complicated than that. Instead, dissents and pluralities result from failure to agree on how to approach a case.

“I really do think that, by far, the vast experience of being a trial court judge offers more than simply being an appellate judge.” Hon. Edward R. Brunner

As an example, Roggensack cited State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 244 Wis.2d 613, 628 N.W.2d 376, in which the court produced a majority opinion joined in its whole by only three judges, and in part by five.

Dividing the court and producing only a plurality opinion was not any ideological disagreement, but disagreement over how to approach the property variance at issue — as a use variance or an area variance.

Roggensack stated that she believes she would fit comfortably within the middle of the court, working to draw it together to speak with one voice.

“The public is better served by a clear unanimous rule of law,” Roggensack said. “Appellate judges need to ask, ‘how can we best let the public understand, the next time this issue arises, on which side they fall.’”

Finally, Roggensack stated she would bring a new perspective to the court because none of the current justices have prior experience on the court of appeals, or any recent experience as a trial attorney. Prior to her term on the current appeals, Roggensack noted, she was a trial attorney for 16 years, practicing in trial courts all the time.

As for lack of experience as a trial court judge, Roggensack said that would be an important issue if there was a lack of justices on the court with that experience.

However, four current justices have that experience, while none have served on the court of appeals.

Noting that in the federal courts, the courts of appeal are the main proving ground for U.S. Supreme Court justices, Roggensack said, “the reason is simple — you do the same work.”

By contrast, Brunner emphasized the trial court experience as being invaluable, and noted that none of the current members of the
court have been hampered in any way by coming to the court without prior appellate court experience.

A trial judge does the same work as an appellate judge, Brunner noted, studying the law, and making decisions that are unassailable on further review. As a trial judge, Brunner stated, he issues as many written decisions as appellate ones, and without the benefit of law clerks, with few ever getting appealed.

Among the issues before the Supreme Court for which trial court experience is particularly helpful, Brunner cited sentencing and jury selection. “To sentence people year after year, day after day, those are difficult decisions. It is important that Supreme Court justices have that background, as well.”

More important, however, Brunner cited the experience of witnessing every day how decisions affect people in their lives and in the courts. “I really do think that, by far, the vast experience of being a trial court judge offers more than simply being an appellate judge.”

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Brunner also noted his prior experience in administrative matters as the chief judge of District 10, within the larger community, and serving on various Supreme Court committees, such as the one that studied domestic violence issues. “Now, the state has wonderful programs, such as the one in Milwaukee County, which has been recognized nationally.”

As examples of other issues he would like to see the Supreme Court consider, Brunner identified sentencing guidelines, disproportionate minority sentences, and the problem of felony drunken drivers, without any other re-cord, going to prisons designed for the criminal mind rather than negligence or a problem with alcohol.

There are better ways to sentence such offenders, Brunner asserted, noting that, in Barron County, providing treatment and keeping the offender working has worked successfully for drunk drivers convicted of a lesser number of offenses.

As for change in the makeup of the court, Brunner stated he believes his election would not change it much. “I consider myself a moderate, and Justice Bablitch fit into that category as well.”

David Ziemer can be reached by email.