Election 2004

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Foley & Lardner partner Joan Kessler has challenged Judge Charles B. Schudson for his seat on the District I Court of Appeals bench in the April 6 election.

Wisconsin Law Journal Editor Tony Anderson met with each candidate last week to discuss the campaign.

Joan Kessler

Joan Kessler

As she makes a bid for a seat on the District I Court of Appeals bench, Foley & Lardner partner Joan Kessler points to her 35 years of experience practicing as an important asset for the appellate court.

Kessler, who has spent the last 22 years at the state’s largest law firm, has handled a variety of cases throughout her career. Although she now focuses on family law litigation, her career has encompassed a broad spectrum of practice areas.

“I think of my practice over the years as having done everything from appeals to zoning — A to Z. And all the things in between,” Kessler said.

A to Z

After graduating from Marquette University Law School, Kessler clerked for U.S. District Court Judge John W. Reynolds in the Eastern District of Wisconsin. From there she rented space from and eventually worked for the firm of Warshafsky, Rotter & Tarnoff.

She and her husband, Frederick Kessler, opened a small neighborhood practice handling a variety of matters for the blue-collar community. After her husband went to the bench, Kessler’s interest in litigation led her to Cook & Franke where she handled personal injury, lemon law, nursing home and Medicaid reimbursement cases.

In 1978, her experiences were expanded when President Jimmy Carter appointed her as U.S. attorney for the Eastern District of Wisconsin. When President Ronald Reagan named a new U.S. attorney in 1981, she joined Foley.

“When I first started, everyone who did litigation did a variety of things, so I’ve done everything from defending criminal tax fraud, to dealer termination cases, to will contests, to securities broker-dealer disputes,” Kessler recalled.

“I’ve literally done everything you could imagine in the litigation area,” she said.

Experience Counts

Kessler views her breadth of experience as an important asset in her effort to unseat Judge Charles B. Schudson. She noted that prior to taking the bench, his seven years were limited to serving as a prosecutor.

“The kind of experience that I have — the breadth of experience — is something that would be of benefit to the court of appeals,” she said. “I’ve actively practiced law for over 35 years.”

In addition to her knowledge of the law, Kessler also listed people skills among the assets she would bring to the court.

“I know how to work with people and build consensus from differing points of view,” she said. “I think that’s an important characteristic for someone on the appellate bench. To be effective, you need to be able to develop consensus from potentially very different attitudes or views of what the law means.”

She indicated that those skills were shown during her time on the Wisconsin State Bar Board of Governors. She served on the board, chairing it one year, and was on the Executive Committee several times.

“Even people who disagree don’t have to be disagreeable when they are doing it,” Kessler said. “If they are not, then they will almost always find some sort of common ground.”

Campaign Issues

Kessler indicated there were a number of reasons that she was running for the court of appeals in general and Schudson’s seat in particular. (For more on Kessler’s concerns about Schudson, see the accompanying article on previous page).

The veteran litigator said she would like to see the court hold more oral arguments in cases and release more published opinions.

“As a lawyer representing clients for a long time, I am troubled by the lack of oral arguments,” Kessler said. “And I am troubled by the failure to report opinions that decide cases.”

She noted that oral arguments are only held in a very small percentage of cases. However, holding oral arguments would be an important way of letting the public know what the court of appeals is doing.

“The only way courts at the appellate level have a quality of openness to the public is through oral arguments and published decisions,” Kessler said.

In addition, oral arguments can have an important impact on the court as well as the lawyers who might read articles about them and gain a better understanding of how the court is approaching cases.

“I don’t understand why oral arguments can’t be the rule rather than the exception,” she said. “I think we would all benefit from it.”

Kessler also indicated she would like to see the court change its approach to publishing opinions. She wants to see the court issue published opinions in the majority of cases.

“If a case is worth writing a full opinion about, what does it hurt to publish it, now that we have computers so they are available to everyone,” she said.

The state Supreme Court addressed the issue of making more opinions available by allowing citation of unpublished opinions for their precedential value last year. The high court ended up rejecting that proposal.

Kessler said court of appeals judges could still recommend more cases for publication, noting that most of the time when a case is recommended for publication the review panel publishes it.

“I’d try to persuade my colleagues that publication should be the assumption,” she said.

Each of those efforts would be important steps toward making the court more open to the public, Kessler said.

Hon. Charles B. Schudson

Hon. Charles B. Schudson

Wisconsin Court of Appeals Judge Charles B. Schudson acknowledges that his path to the District I bench has been the result of several failures. More to the point, the journey has in-volved moving forward despite initial set-backs and finding the flexibility to change paths.

Having spent the last 29 years as a prosecutor, trial court and appellate judge, Schudson is proud of a legacy he has created in the courts. The 53-year-old judge highlighted several instances both on and off the bench where he felt he had a significant impact. Those efforts included helping to develop a battered women’s program, successfully prosecuting nursing home owners for negligent treatment of patients, and introducing revolutionary techniques to give sexually abused children a voice in the courtroom.

Success Despite Failure

Originally, Schudson had not planned on going to law school, which turned out to be a “fall-back position.” In 1972, his interest in Latin America prompted him to apply for a grant to study sociology and urban affairs in Chile. When the grant went to someone else, he decided to enroll in law school as a second option.

After successfully graduating from the University of Wisconsin Law School, Schudson remained interested in Latin American so he applied for and received a Fulbright scholarship to study a new legal services program in Peru. Before he left, the United States and Peru broke off relations eliminating the possibility of studying abroad.

Schudson said, “My entry into law school and the initial practice of law resulted from failure — the failure to get the grant to go to Chile, then after my success in law school, the failure to get to go to Peru.

“Here I am, the product of Plan Bs.”

Instead, Schudson pursued a position as assistant district attorney in Milwaukee. District Attorney E. Michael McCann hired him, setting in motion a 29-year career in the law. He spent seven years in the district attorney’s office, then was appointed to the Milwaukee County Circuit Court bench where he spent 10 years. Since 1992, he has served on the appellate bench.

When speaking with students, Schudson said he tells them it&
#146;s not a question of whether you have set-backs; those are inevitable. The most important factor is moving forward and having the flexibility to see other options.

For Schudson, that flexibility gave him the opportunity to move forward in public service. At the UW Law School, he had worked with Frank Remington in the legal assistance program. When he began looking at ways to follow up with those efforts, he received some surprising advice from his mentor.

“He said, ‘If you want to do justice, go to work for Michael McCann,’” Schudson recalled, noting he had expected to be told to consider work as a public defender.

Instead, he was urged to use the tools of a prosecutor to determine when it was appropriate to prosecute a case and how to proceed properly.

Career Highlights

Schudson’s tenure with the district attorney’s office opened the door to two of the highlights of his career. He was initially assigned to Project Turnaround — an effort to develop the first battered women’s program run through a prosecutor’s office. Michael Ash, who was in the district attorney’s office at the time had gotten a grant for the groundbreaking project.

“That was my first assignment,” Schudson recalled with pride.

The next highpoint also came while working for Mc-Cann. Schudson took on the prosecution of six owners and administrators of the Glendale Convalescent Center for the negligent treatment of residents. The case involved the victimization of 59 patients including one who froze to death.

Schudson was told they would not be able to bring criminal charges because the victims could not testify due to memory or speech limitations.

“What the owners were doing throughout the Midwest was to get a patient census consisting of people for whom they would get the highest Medicaid reimbursement and for whom they would have to provide the fewest services, even though they were supposed to provide the most,” Schudson explained.

Through the use of nursing care experts, family members, and nurses from the facility, they were able to get a conviction. Through his efforts to extradite the owners from Illinois to Wisconsin, Schudson came to the attention of Gov. Lee S. Dreyfus. In 1982, Dreyfus appointed Schudson to the Milwaukee Circuit Court.

	Related Article Schudson’s supporters respond to Kessler’s allegations

On the trial bench, Schudson engaged in another defining experience. While handling CHIPS cases involving children who had been sexually abused, he learned that offenders rarely faced prosecution because of limitations on hearsay testimony and the problems associated with having young children testify in court.

“I pursued that and found some creative ways to help children gain a better chance to be heard in our court,” he said. “I examined the law of hearsay and found that it was being misapplied consistently across the country.”

He developed a variety of techniques to help abused children testify, including allowing them to sit on a parent’s lap, utilizing hand puppets and adjusting the timing of testimony so it did not coincide with scheduled naps.

At the appellate level, Schudson said he was proud of his work on cases such as State v. Sharp where the court analyzed child sex abuse evidence under the rule of completeness. He also enjoyed the challenge of working on Jerold MacKenzie v. Miller Brewing Co., a case which dealt with four significant issues and involved a massive trial court record.

Whether he wins or loses the April 6 election, Schudson said, he intends to continue moving forward.

Tony Anderson can be reached by email.