Roggensack asserts need for judicial independence

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Speaking before a group of lawyers and judges at the Milwaukee Bar Association, Justice Patience Drake Roggensack stressed the importance of judicial independence and warned against the court making policy-driven decisions. Wisconsin Law Journal Photo/Jack Zemlicka

Both the executive and legislative branches should have limited influence over the third branch of government, according to one state Supreme Court justice.

Wisconsin Supreme Court Justice Patience Drake Roggensack offered her perspective on the importance of judicial independence during a speech at the Milwaukee Bar Association, Jan. 25. Roggensack’s discussion of the limited influence both branches should maintain over the courts, along with improving the public perception of the system, generated lively discussion among the legal professionals in attendance.

“My hope is that this will provoke people, both internally and externally involved in the judiciary, to start talking about the topic,” said Roggensack. “It’s something I feel very strongly about and want to see it brought out into the open.”

Separate but Equal

Roggensack touched on several topics during her presentation, including the need for a cooperative relationship among the three branches of government when it comes to court matters, while at the same time, maintaining their individuality.

“There has been a perception that the judicial branch was considered the least dangerous of the three branches because it had neither the sword of the executive, nor the purse of the legislative,” said Roggen-sack. “It’s important that the judicial branch stand on its own.”

Specifically, Roggensack referred to resisting certain policy-driven case rulings. She cited the outcome of Dairyland Grey-hound Park v. Doyle in 2006 as an example.

The Supreme Court sided with Gov. Jim Doyle. The majority decision concluded that Indian casino compacts approved in 1991 and 1992 for 11 state tribes, along with Doyle’s recent extensions of those compacts, were constitutional. Dairyland had sought to block a court order to renew the compacts and claimed the track was losing money because of the casinos.

The ruling upheld the Dane County Circuit Court decision that a 1993 state constitutional amendment, which banned most forms of gambling, did not invalidate the original tribal gaming compacts.

In her dissent, Roggensack asserted that “this decision takes away the State’s sovereign police power to regulate gambling within its jurisdiction. However, tribes are not within the State’s jurisdiction: States do not have jurisdiction over tribes unless specifically granted such jurisdiction by Congress. Moreover, without a valid compact, state laws have no regulatory power over gaming on Tribal land, and states have no authority to police Tribal casinos.”

In her speech, Roggensack said the case revealed a “less than clear separation between the executive and judicial branches.”

Elective Influence

A prominent question on several audience members’ minds was how much political and personal influences affect judicial reasoning and public scrutiny.

Specifically, the popular method of “labeling” has again played a role in this year’s race for the open seat on the State Supreme Court.

One day prior to Roggensack’s visit, in the very same room, the three candidates downplayed the relevance of political preferences in a non-partisan election, but have also attacked party affiliations throughout the campaign.

Roggensack, who was elected in 2003, deflected political questions during her campaign, while her opponent Judge Edward R. Brunner openly offered his views on several politically charged topics.

“When I ran, I figured I was the perfect candidate since I tried to focus on judicial issues, but the reality is that the same people interested in partisan politics, are interested in judicial elections,” said Roggensack, who suggested that political interest would be less of a factor if there were more candidates. “I really think what you need is to be bi-partisan, not necessarily non-partisan.”

Milwaukee County Circuit Court Judge Mary M. Kuhnmuench believed labeling of judicial candidates and sitting judges is a misnomer.

“I don’t think it is supported 90 to 95 percent of the time,” said Kuhnmuench. “Any-one who sits on the bench will bring an ideology, whether it’s religious, political or otherwise, we’re human. Are we able to still judicially apply the law? I think so.”

Roggensack furthered the notion with first-hand experience.

“Look at how Justice (Patrick) Crooks was presented as a conservative throughout his campaign,” said Roggensack. “Would you place that label on him today?”

Open or Closed Discussion

An issue that has garnered attention in recent months is whether Supreme Court case discussions should be open to the public.

The concept has been pub
licly supported by Wisconsin State Bar President Steven A. Levine, but Roggensack believed judicial transparency would diminish the Supreme Court’s ability to effectively rule.

“I’m opposed to the idea because I don’t think it would help public confidence in the judiciary,” said Roggensack. “I think without supervision, we are able to create better, more consistent judgments.”

She suggested that media influences could taint public perception of a case and take statements made by justices out of context.

“Quite honestly, we’re not always that polite with each other in discussions and I don’t think we need stories saying, this justice said something to so-and-so,” said Roggensack. “It’s counterproductive to our goal of collectively and lawfully determining the best outcome of a case.”