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With Roggensack in charge, high tension on state’s high court (UPDATE)

Former longtime Wisconsin Supreme Court Chief Justice Shirley Abrahamson, left, participates in an open meeting in court chambers with Chief Justice Patience Roggensack, center, presiding and Justice David Prosser, right, participating on Wednesday, June 10, 2015, in Madison, Wis. Abrahamson has filed a federal lawsuit challenging Roggensack's election as chief justice. (AP Photo/Scott Bauer)

Former longtime Wisconsin Supreme Court Chief Justice Shirley Abrahamson (left) participates in an open meeting Wednesday in court chambers with Chief Justice Pat Roggensack presiding and Justice David Prosser participating in Madison. Abrahamson has filed a federal lawsuit challenging Roggensack’s election as chief justice. (AP Photo/Scott Bauer)

The tension during the Wisconsin Supreme Court’s first rules conference presided over by a new chief justice didn’t stop the court from getting down to business.

Pat Roggensack led her first rules conference as chief justice on Wednesday. She presided over the meeting with five of the six justices present. Justice Michael Gableman called in.

The first hour of Wednesday’s conference showed little hint of the conflict among the justices.

Justice Shirley Abrahamson sat directly to Roggensack’s right during the meeting, which began with a debate over blacking out certain information in court records.

The rule would require litigants to keep personal information such as social security numbers and driver’s license numbers out of documents filed in circuit courts. A petition in favor of the rule was unanimously approved at the court’s last meeting, but the court has yet to issue an order containing the final language of the rule.

Justice Annette Ziegler initially referred to Abrahamson as “the chief,” but later called her justice.

It wasn’t until later that the tension started to mount.

After having debated changes to a draft of the privacy rule for more than an hour, the justices took a break, which was supposed to last 10 minutes but ended up taking 15 minutes as the justices waited for Abrahamson and Bradley to return.

Roggensack said she was ready to reconvene without the two absent justices, noting that she didn’t need them to have a quorum. Before she could resume the meeting, though, the two had returned.

When the conference started again, Roggensack said that she would be calling a vote on the privacy rule at 11:25 a.m. and limiting the amount of time the justices would have to make comments. Abrahamson was almost simultaneously listing her concerns about the privacy rule. Roggensack cut Abrahamson off to call the vote, apologizing for the interruption.

The justices approved the draft of the privacy rule, although saying some changes still need to be made. The justices will cast their vote on the last draft version of the rule using email and then a final order will be issued.

Afterward, Roggensack skipped over discussion of a rule on out-of-state depositions and discovery to call a vote on whether to deny a rule petition submitted by the attorney Christopher Wiesmueller. The petition would have clarified an already existing rule that prevents attorneys from either preventing access to or destroying evidence, or concealing it.

Roggensack said the petition was turned for the sake of expediency, noting that five of the justices had already voted to deny the petition with the understanding that it could be taken up later. Only Bradley and Abrahamson still needed to vote.

When Roggensack attempted to move on and call the vote, Abrahamson started talking over Roggensack.

“I never did this to you when you were chief justice. …” Roggensack said. “You need to do the same.”

“I appreciate that,” Abrahamson responded, “but I never silenced anyone.”

Abrahamson went on to say that when she was chief justice, she let everyone voice their concerns, and expected the same treatment.

In the end, the justices voted to deny Wiesmueller’s petition, although they did note that the topic may be revisited when the court takes up Abrahamson’s petition to review the Office of Lawyer Regulation.

The justices also gave preliminary approval to the rule on discovery and depositions, pending certain revisions.

The tension in the court stems from Abrahamson’s having filed a federal lawsuit challenging Roggensack’s election to the chief-justice position, which Abrahamson had held for 19 years. A federal judge has said he hopes to rule on the case this summer.

Voters in April approved a constitutional amendment giving the justices, for the first time, the power to elect the chief justice. Before that change, the top spot had gone to the justice with the most years on the court.

Toward the end of Wednesday’s meeting, questions arose over whether Roggensack, by herself, could have the court meet in a closed session.

Emails show Justice Patrick Crooks had argued in May that Roggensack may not, on her own and without the support of the other justices, call for a closed conference to discuss cases.  Even so , Roggensack had scheduled the court to meet in private Wednesday afternoon.

Roggensack adjourned Wednesday’s meeting amid Bradley’s protesting that the court had to unanimously vote to go into closed session. Roggensack replied that she did not want to argue with Bradley in public.

About Erika Strebel, erika.strebel@wislawjournal.com

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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