Making their Case

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In their first public debate leading up to the April 7 election, the two candidates for state Supreme Court put their cards on the table.

Incumbent Justice Shirley S. Abrahamson touted her 32 years of experience on the high court and an “independent judiciary,” while opponent Jefferson County Circuit Court Judge Randy R. Koschnick advertised his approach on the bench as that of a “judicial conservative.”

At the forum held Jan. 29 at the Wisconsin Newspapers Association Convention in Green Bay, each candidate took turns citing cases decided by the other that had been either overturned or conflicted with state laws.

Koschnick, 48, suggested that a series of decisions by Abrahamson showcased her history of legislating from the bench.

He pointed to the State of Wisconsin v. Matthew J. Knapp, in which he initially ruled that the defendant’s blood-soaked shirt was admissible in the case at the circuit court level.
On appeal and then again after being remanded by the United States Supreme Court, Abrahamson, along with the majority of the justices, determined the evidence was inadmissible because police had not read Knapp his Miranda Rights.

“The rule has always been for a Miranda violation, the remedy is correction of defendant’s statement and not suppression of physical evidence,” Koschnick said. “That’s how I ruled, so the shirt was admissible.”

“Justice Abrahamson’s ruling basically overturned decades of precedent, whereas I applied the law in the way it was written,” Koschnick said.

Abrahamson, 75, defended the decisions and said Knapp had been convicted “through legally obtained evidence, of which there was much.”

The Chief, who is seeking her fourth term on the bench, shot back at her opponent with a question about whether he had ever been reversed by the appellate courts for improper application of state statute.

“You like to look at cases?” Abrahamson said. “You got cases, too.”

Traffic, paternity and divorce cases were among the examples Abrahamson used to illustrate times where Koschnick had been reversed by the appellate courts because he either “exceeded his authority,” or created his “own rule” of law.

Koschnick stood by his decisions and suggested that Abrahamson’s lack of experience as a trial court judge does not give her an understanding of the “busy dockets” circuit court face.

“Where the Court of Appeals found a minor technicality to reverse me on, I point out that busy trial court judges are in very difficult position to have to process a large number of cases and do justice for the people.

“I don’t think the appellate courts should be splitting hairs and looking for minor technicalities to reverse either criminal convictions or other decisions made by circuit court judges,” Koschnick said.

In his 10 years on the bench in Jefferson County, Koschnick said his experience with victims and police officers coming through his court is a stark contrast to Abrahamson’s “judicial activism” on the high court.

Koschnick noted that Abrahamson sided with criminal defendants in 60 percent of more than 200 cases that came before the Supreme Court from 2000 to 2008. He said that total was the highest among the justices on the high court.

Abrahamson said she did not know if the figures were accurate and also dismissed the use of judicial philosophy labels.

“Judge Koschnick talks about judicial conservatives and he talks about activist judges. These are meaningless, divisive phrases,” Abrahamson said. “When you say it’s an activist judge, what you are really saying is you don’t like that decision, but you are not willing to state why or explain why.”

The two candidates will appear at a judicial forum hosted by the Milwaukee Bar Association on Feb. 4 from noon until 1 p.m.