CAPITOLISMS BLOG: Discord in the court

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At least two justices on the state’s Supreme Court have lobbied Senators in favor of a bill that would change the way the title of chief justice is bestowed in Wisconsin.

Still, the question remains: Why go to the trouble of trying to amend the state constitution over a position that wields so little power?

That answer became a bit clearer during a rules conference held Friday in the Supreme Court Room of the state Capitol.

During the slightly more than three hours of the meeting, the justices bickered over seemingly insignificant procedural matters, all the while alleging that ulterior motives were afoot and accusing each of other of not acting in good faith. The dissatisfaction that at least two members of the conservative bloc on the court, justices Pat Roggensack and Michael Gableman, feel about Chief Justice Shirley Abrahamson was unmistakable.

And the feeling appeared to be mutual.

The main matter up for discussion was a proposal to form a committee charged with revising Wisconsin’s code of judicial ethics.

This task, along with being dauntingly large, also threatens to touch on a few sore points, namely the state’s rules regarding recusal. Delving into that subject could be a cause of embarrassment for several justices on the court; not only the conservative members but Abrahamson herself, who, as the Wisconsin Center for Investigative Journalism has pointed out, has a tendency to side with lawyers who have contributed to her election campaigns.

Still, it has been Abrahamson who has pushed forward with the proposal to have a committee revise the judicial code of ethics. Blocking her, at least on Friday, was Roggensack, whom many believe to be the leader of the court conservatives.

Roggensack never once said Friday that she was against taking a look at the ethics code – a stance that, given the court’s recent history, might have been difficult to justify to the public. Her objection instead hinged on a technicality and was directed at the way the proposal was introduced.

Abrahamson had put the committee idea forward in the form of what is known as a rules petition. Roggensack argued that such a petition, properly employed, can only lead to changes in court rules; since what Abrahamson wanted, Roggensack reasoned, was the formation of a committee charged with revising rules, rather than a rule change itself, the proposal had been brought forward in an improper manner.

Roggensack said she would be happy to discuss the committee idea if it were raised in the right way. It could, for instance, be put forward by a motion made in closed session.

Rather than a concern for procedure, other members of the conservative bloc, though, made it clear that they were motivated by a desire to have any discussion about judicial ethics take place behind closed doors. Gableman, who has been at the center of at least a couple of recusal controversies, said certain members of the court have been known to use open meetings to put others in difficult and perhaps embarrassing positions.

His remarks prompted Justice Ann Walsh Bradley, who tends to side with Abrahamson on highly political cases, to observe that there appears to be a difference in philosophy among court members. She and certain other justices, she said, think that anything they can be proud of saying behind closed doors they can also be proud of saying before the public.

Obviously irritated, Gableman snapped back that such grandstanding was exactly the sort of thing he was trying to avoid.

Justice David Prosser also had objections that went beyond the way in which Abrahamson’s proposal was introduced. Judging by some of the chief justice’s recent remarks, particularly the State of the Courts speech she delivered previously this year , Abrahamson appears to believe that justices are not recusing themselves enough, Prosser said.

But Prosser said he already has to sit out on too many cases and is “dead set against” rules that would lead to even more recusals. Could it perhaps be, he said, that Abrahamson’s proposal was related to a “certain matter” in which most of the justices decided to recuse themselves because they were witnesses to the act they would be asked to pass judgment on?

That certain matter of course was the 2011 scuffle in the justices’ chambers that resulted in Prosser’s placing his hands around Bradley’s neck, an action that Prosser has said he carried out in self-defense. Abrahamson did not respond to Prosser’s speculation directly.

When her rule petition was put to a vote, it was defeated 4-3; the four justices commonly considered to be the conservatives – Gableman, Prosser and Roggensack, plus Justice Annette Ziegler – voted against it.

Joining Bradley and Abrahamson in support was Justice N. Patrick Crooks, who said he could not understand the objection to calling Abrahamson’s proposal a rules petition. Speaking directly to Crooks, Abrahamson said all she knew was that the committee was obviously something that “they,” not specifying whom she was talking about, wanted to avoid discussing in public.

She said she would rewrite the proposal and submit it once again at the court’s next open rules hearing.

“We all understand what’s happening,” Abrahamson said, “and we’ll just have to deal with it appropriately.”

Wisconsin Law Journal staff writer Dan Shaw writes his Capitolisms blog. For more, go to dailyreporter.com/capitolisms