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High court conflict threatens credibility

By: Jack Zemlicka, [email protected]//March 25, 2011

High court conflict threatens credibility

By: Jack Zemlicka, [email protected]//March 25, 2011

Friendship is not a job requirement for the co-workers on the Wisconsin Supreme Court.

But the level of animosity among some members of the court, particularly illustrated by the public spat between Chief Justice Shirley Abrahamson and Justice David Prosser, will lead to a drop in productivity, said Erin Johnston, a Chicago-based workplace conflict resolution mediator and owner of CFR Mediation Services.

Intense workplace conflicts often lead to breakdowns in communication to the point that any interaction is based on emotion, rather than rational thinking, Johnston said.

Rational thinking is a job requirement for the co-workers on the Supreme Court.

“It gets to the point where nobody wants to give an inch or weaken their argument,” Johnston said. “As a result, they aren’t focusing on the job at hand and just maintaining their own egos.”

David Prosser
David Prosser

Prosser said he can separate the conflicts with his co-workers from his role as a justice “most of the time,” though he declined to explain further to what extent the animosity affects his judgment.

The effect could extend beyond the bickering justices, Johnston said. If attorneys are appearing in front of Supreme Court justices whose focus is distracted by an internal feud, the attorneys might alter their arguments to compensate.

“Suddenly, an attorney is playing up picking at that internal conflict, which doesn’t have anything to do with their case,” she said. “That is not how it is supposed to work.”

That also does not match the reality of appearing before the Wisconsin Supreme Court, said Monte Weiss, a Fox Point attorney with Deutch & Weiss LLC.

“It doesn’t in the least come into my mind,” he said, “when I think about oral argument or how the court decides a case.”

A bickering court’s final decision in a case should be a concern, given the stakes involved for the public in Supreme Court decisions, said David Yamada, a law professor at Suffolk University in Massachusetts who has written extensively on conflict and incivility in the workplace.

“The implications are significant,” he said. “To a degree, personal conflict could enter into writing of majority, concurring or dissenting opinions.”

But Weiss also disputed that theory. He said he has argued before the Supreme Court on numerous occasions and has never thought court conflicts played a role in decisions.

“I think the justices are capable of separating their personal issues from the work before them,” he said. “It’s expected of judges.”

Shirley Abrahamson
Shirley Abrahamson

During the past several months, tensions between the conservative Prosser and the liberal-leaning Abrahamson have come into sharp focus, culminating with a report that Prosser, who is running for re-election, in February 2010 called Abrahamson a “bitch” and threatened to “destroy her.”

Prosser acknowledged the comments he made about Abrahamson were “inappropriate.”

“Not much good would come out of trying to defend or explain the comments,” he said, “so I simply apologize for an extremely poor choice of words and hope we can move on.”

Two months ago, Abrahamson called a public meeting to question why Justice Pat Roggensack asked for reimbursement for travel on a personal project. The conservative bloc in turn accused Abrahamson of overstepping her authority when she hired two assistants.

Prosser has denied being the root of controversy on the court and accused its more liberal members, including Abrahamson, of trying to create a “foul atmosphere” and recruit candidates to run against him in this election.

He is being opposed by assistant attorney general JoAnne Kloppenburg and, he said, should he win the 10-year term April 5, court relations should improve because there no longer would be incentive to embarrass him.

Abrahamson did not return repeated calls for comment.

But Yamada said he doubts a Prosser re-election would solve the problem.

“It may address the inevitable question of whether the people are going to have to find a way to work things out,” he said. “The question mark is whether they are going to do so.”

But some say the dysfunction on the court is beyond the help of an outside mediator.

“What has been leaked out and now in public view is probably only the tip of the iceberg,” said Mike McCabe, executive director of campaign watchdog group the Wisconsin Democracy Campaign.

He said a resolution of the rift likely would arrive one of two ways: The justices find a way to set aside their differences, or voters make the decision for the court.

“They don’t have to like each other, but they do need to work together,” he said. “There needs to be a certain level of collegiality and the ability to talk to each other civilly.”

Jack Zemlicka can be reached at [email protected].


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