Judges vie for spot on Wisconsin Supreme Court

By: Erika Strebel, [email protected]//April 3, 2018//

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With the playing field now narrowed, experts say the race for a seat on the Wisconsin Supreme Court will for the most part go back to looking like previous races for the state’s high court.

The primary election held on Feb. 20 knocked Madison-based lawyer Tim Burns out of the running to replace retiring Justice Michael Gableman, who is part of the court’s five-member conservative majority. Burns had distinguished himself from most other judicial candidates by being outspoken on political issues of the day and branding himself a Democrat.

His defeat last month left Milwaukee County Circuit Court Judge Rebecca Dallet and Sauk County Circuit Court Judge Michael Screnock as the two candidates competing in the general election on April 3.

University of Wisconsin Law School Professor Ryan Owens, who served as moderator at a Federalist Society forum held before the primary election, said the contest will now be more about candidates’ views on the role of the judiciary rather than particular policies or political stances.

“Throughout the primary, we had the very unique campaign of Tim Burns, who staked out a lot of policy issues, and that was really, really unique,” said Owens. “Now that he is eliminated, I think we’re going to see a more traditional campaign.”

So far, the two candidates have sparred over both when judges should step aside in cases involving parties that have contributed to their campaigns and the NRA’s recent endorsement of Screnock.

Matt Rothschild, executive director of Wisconsin Democracy Campaign, which tracks candidate spending, said also he expects to see contributions by outside interest groups ramp up as they have in past Supreme Court elections.

He noted that, even before the primary, Wisconsin Manufacturers and Commerce and Wisconsin Alliance for Reform had spent $375,000 on issue ads supporting Screnock.

“You can expect millions of dollars from phony issue ad groups on both sides as we get closer to the April 3 election,” Rothschild said.

He also noted that two Democrat-aligned groups – For Our Future and the National Democratic Redistricting Committee –have declared they will be making independent expenditures in the race.

Such expenditures are allowed to be used to support or oppose a candidate as long as the candidate has not been consulted, or coordinated with, on how the money should be spent.

The National Democratic Redistricting Committee, a group established by former U.S. Attorney General Eric Holder to advocate for redistricting reform, has spent $140,000 on digital ads supporting Dallet since the primary election.

Money aside, Dallet and Screnock differ greatly in the paths that led them to seek a seat on the Supreme Court bench.

Dallet, who earned her law degree from Case Western Reserve University School of Law in Cleveland in 1994, is a former prosecutor. She worked as an assistant district attorney in Milwaukee County for 11 years and spent a year working as the presiding Milwaukee County court commissioner.

According to the Wisconsin Law Journal’s yearly review of how the state’s trial court judges fared at the state Court of Appeals, Dallet has been affirmed 117 times and reversed 14 times, giving her an 89 percent affirmance rate since her election to the bench in 2008.

Dallet has also been a special assistant U.S. attorney and adjunct professor at Marquette University Law School. She is a resident of Whitefish Bay, and her husband is a lawyer at Husch Blackwell’s Milwaukee office.

Screnock, who earned his law degree from the University of Wisconsin Law School in 2006, started practicing law at Michael Best & Friedrich in 2007. He was part of the firm’s legal team that defended both the state’s Act 10 law stripping most public workers of their collective-bargaining rights and the legislative redistricting maps drawn up by Republicans following their election victories in 2010.

Gov. Scott Walker appointed Screnock to the Sauk County bench in 2015, and Screnock was re-elected in 2016 in an uncontested race. According to the Wisconsin Law Journal’s yearly reviews of how state trial court judges fared at the state Court of Appeals, Screnock has been affirmed 3 times, showing an 100 percent affirmance rate during his time on the bench.

Screnock, who lives in Reedsburg, worked in local government for 12 years, serving in roles such as finance director and city administrator, before deciding to go law school.

Dallet touts experience in run for high court spot

Wisconsin Law Journal: Why are you running for the Wisconsin Supreme Court?

Rebecca Dallet: I’m running because we’re in a time when our rights are under attack and things like equal protection under the law, clean air and water, women are under attack and we have a broken Supreme Court. We need someone with values and experience to repair that court.

I’ve been a judge for a decade, I was prosecutor for more than a decade, really fighting to protect the rights of Wisconsinites in our Wisconsin courtrooms and I want to keep on fighting to do that on our Supreme Court.

WLJ: What is the greatest difference in the way that you and your opponent perceive the role of the judiciary?

RD: I think the greatest difference is our experience level and our values. So, I’ll start with experience. I’ve been working in our courts for more than 23 years, really in all areas. As a prosecutor for 11 years, I prosecuted sexual predators for five of those years in different counties. And I’ve been a judge for almost a decade. I’ve presided over almost 12,00 cases during that time and have really seen the issues facing Wisconsinites, done the tough calls, done the day-to-day work that you need to be prepared for this job.

My opponent has been a judge for a very short time after being an attorney for not a very long time. And I think he has very limited jury-trial experience, both as a judge and as an attorney, and hasn’t nearly dealt with types of cases and the day-to-day issues that are facing Wisconsinites.

As far as values go, I share Wisconsin values, things like caring about equal protection under the law and clean air and clean water and women’s rights.

My opponent is an extremist. He is one who has blocked women’s lawful access to healthcare, has been arrested twice and was not forthright with his name upon arrest. And he is currently backed by groups whose agenda he has vowed to promote or protect, and those groups include the NRA.

WLJ: Tell me about a person or experience that has significantly affected the way you approach your work and your judicial philosophy.

RD: I believe, for me, what has impacted the way I think the most is not any one particular case or person but really a career’s worth of working in our courts. It takes experience, it takes learning from experience and seeing different cases, the variety of cases, the different decisions that need to be made throughout the whole course of my legal career.

WLJ: The Wisconsin Supreme Court has been labeled “dysfunctional” in the past. What can be done to change that?

RD: First, we need to get in place a strong recusal rule. Right now, we have a recusal rule that was written by a special-interest group: the state chamber of commerce that has poured millions into buying justices. They have poured almost a half a million dollars into my opponent’s campaign so far.

We need to have a rule, a meaningful recusal rule, we need to have a hearing on the rule, and we need to make sure we restore confidence in our courts.

WLJ: What do you think about the court’s decision to close to the public its deliberations on proposed rules changes?

RD: I believe in transparency and government, and we should be able to know what our government is doing. We had for many years the ability to see and hear what was taking place, and that is now dark.

WLJ: Of the petitions for rule-changes on the court’s docket, which one do you think is most significant?

RD: The petition to increase the private bar rate – we’re talking about when lawyers take appointments in cases – that’s a big one. I think that’s very significant.

I’ve worked in our courts now, as I said, more than 23 years. I saw it as a prosecutor in the ability to have the representation for people I was prosecuting and as a judge, seeing how difficult it is to find people in the community to represent defendants when the public defender’s office has a conflict. And in the northern part of our state, it’s just finding people period.

We definitely need to increase the pay for individuals who are willing to represent people who have the right to great representation. In order to do that, we need to pay them a fair wage to take those cases on.

WLJ: If there was one thing you could change about Wisconsin’s court system, what would it be?

RD: I’m running for the Supreme Court because I think the biggest thing we need to change is the Supreme Court.

When I moved here 24 years ago, we had a Supreme Court that was one of the most respected courts in the nation.

And now we have a court that is known across the country for justices not getting along – to put it mildly – and also for the domination in these races by the big money, special interests that have been able to effectively choose their candidate and put them in place on our court to do their bidding and to rule in their favor.

WLJ: Why should voters choose you?

RD: Voters should choose me because I’m the only candidate that does bring the experience and values that voters in Wisconsin demand for a justice on the Wisconsin Supreme Court.

I’ve spent more than 20 years working in our Wisconsin court rooms for the people of our state, standing up for the vulnerable, empowering women, prosecuting criminals and upholding the law as a judge.

I am the only candidate that is going to bring the fairness and independence we need on the Wisconsin Supreme Court.

I am not supported by the big money and specials interest that have ruled over the Supreme Court and that have bought our justices for the last 10 years. I will be making decisions based on the people of our state, not the big-money special interests.

Screnock seeks to provide consistency in court opinions

Wisconsin Law Journal: Why are you running for the Wisconsin Supreme Court?

Michael Screnock: I think it’s really important that our next Wisconsin Supreme Court Justice really feels committed strongly to the rule of law. And, by that, I mean the role of the court is to interpret and apply the law as they find it, and not to try to rewrite the law or to legislate from the bench to try to bend the law to fit the personal or political aims of the individual justices.

In late May, Mr. Burns announced his candidacy and late June, when Judge Dallet announced hers, I just wasn’t satisfied that either one of them, you know, really were committed, unwaveringly, to the rule of law.

WLJ: What is the greatest difference between you and your opponent’s perspectives on the role of the judiciary?

MS: Two things. She is running on political issues that she feels strongly about. She’s indicated in speeches and in interviews that she intends to advocate for policy changes that are required to advance those political issues. That’s legislating from the bench. It’s articulating an intention to be an activist justice on an activist court.

And I have said from day one that I am committed to setting aside whatever my personal beliefs are, views are, whatever my personal feelings might be about the parties before me. I decide cases solely on the law.

WLJ: Tell me about a person or experience that has significantly affected the way you approach your work and your judicial philosophy.

MS: I would point to two. The late Justice Antonin Scalia really has had a significant impact on the judiciary and on the view within the entire legal profession of the proper role of the courts.

The other one, really in stark contrast, is Judge Posner on the Seventh Circuit Court of Appeals. He recently retired. He was viewed as one of the leaders of the thought of being a pragmatic judge.

What Judge Posner was fond of doing was deciding cases based on what he thought was a good result. And the impact that has on the bench and the bar and on society and on businesses is that it creates great instability in the law. It causes lawyers who are arguing cases and, more importantly, it causes individuals and businesses who are trying to organize their daily affairs to not know what the law really is.

It’s very unpredictable and, again, it’s not the type of authority that the people have ever given our judiciary through the Constitution.

WLJ: The Wisconsin Supreme Court has been labeled “dysfunctional” in the past. What can be done to change that?

MS: The first thing that could be done would be to have candidates for Supreme Court to stop urging the voters to believe that the Wisconsin Supreme Court is dysfunctional and broken. Our judicial code of conduct requires us to act in all of our affairs in a way that promotes the integrity and the public confidence in our judiciary.

I do not believe our Supreme Court is dysfunctional. I believe we have a highly functional Supreme Court. One thing individuals could do who are interested would be to actually read the decisions that come out of our court and to look at the decisions over the course of time.

WLJ: What do you think about the court’s decision to close its deliberations on rules changes to the public?

MS: As far as I am aware, there’s no supreme court or highest court in any state that holds those administrative conferences in public. Wisconsin did for a while. If it was truly a great idea or highly efficient or useful to the judiciary, I have no doubt that other states would have jumped on board or other courts would have looked at Wisconsin and said, “This is a really great idea.”

I support having those administrative conferences closed because the court does its work as a body. And I think it is unhelpful to encourage the public to look at our justices individually and try to prop them up as individuals like we do with individual legislators.

And I don’t think it’s helpful when the members of the court are speaking among themselves about how to come to a decision on a rules petition. I don’t think it’s helpful to have that conversation in public. And I worked in local government for nearly 12 years. I saw a lot of public meetings. And anyone who’s done that for any length of time understands that there’s frequently posturing that goes on in these meetings.

And I think it’s important for the public to understand that the Supreme Court has never determined to stop holding public hearings. What they’ve done is they’ve closed these internal discussions among the justices as to how the court as a body is going to act on these things.

WLJ: Of the petitions for rule-changes on the court’s docket, which one do you think is most significant?

MS: One of the important tasks the court has is to be the administrative leadership of the entire court system. And part of that role has to do with spending the judiciary’s funds from a budgeting standpoint. What I am aware of is that under the leadership of Chief Justice Roggensack and the new director of state courts, Judge Koschnick, from what I’ve been able to tell as a circuit court judge, is that they have been overturning every rock to try to determine ways that the court system can be more efficient and be the best steward of the public funds that the legislature and the governor have authorized for the judiciary.

That’s an important role. It requires wise analysis and it also requires some courage at times because, as with any organization where there’s momentum heading a certain direction and the leadership decides to change direction in any way, there’s always some pushback. It’s a task that I think I would be a real asset to the court given my background with an MBA, my prior role as a city administrator and a finance director.

WLJ: If there was one thing you could change about Wisconsin’s court system, what would it be?

MS: I’ve talked with a number of circuit court judges that would like to see our judicial-education programs be more tethered to the law and less focused on the art of judging.

I‘ve been surprised – and it goes back to my judicial philosophy – in the nearly three years I’ve been on the bench the number of times I’ve been in judicial education sessions where at the end of an individual session, I look back and think, “We haven’t actually talked about the law. What are the statutes that govern these issues? What are the limits of our lawful authority as judges?”

There’s a lot of talk about throwing out scenarios and saying, “What would you do? How would you approach this?” – which is a useful conversation but it’s not the be-all and end-all of judging. At the end of the day, the most important thing is we follow the law, that we recognize the breadth of our lawful authority but also the limits of our lawful authority.

WLJ: Why should voters choose you?

MS: The voters in this election have a very clear choice in this election as to my judicial philosophy and my commitment to interpreting and finding the law as I find it and not as I wish it to be.

That’s on the one side. And my opponent, who has articulated the political issues she cares the most about, has indicated in speeches and interviews that she intends to advocate for policy changes and to advance those political issues.

That would be legislating from the bench in its most pure form. She’s articulated in the way that she’s run her campaign that she intends to be a liberal activist judge. And I intend to adhere to the rule of law and reach decisions that the law compels whether I personally agree with those results or not.

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