Recusal an issue in high court race

In 2010, the Wisconsin Supreme Court reinstated a criminal conviction against Dimitri Henley. Afterward, his lawyers filed a motion arguing that Justice Patience Roggensack should have recused herself from taking part, given her role in a case involving Henley’s co-defendant.

This motion was later denied, on a 4-3 vote. What surprised and even shocked some court observers was that Roggensack took part in this ruling.

“Justice Roggensack’s participation in judging her own conduct showed astounding disregard for legal ethics and every litigant’s right to impartial justice,” thundered the New York Times.

But it was in keeping with what Roggensack, now seeking a second 10-year term, has helped make the standard — that individual justices have sole authority to decide whether they should recuse.

Consider the case of Polsky v. Virnich, which the Wisconsin Center for Investigative Journalism reported on last year.

Michael Polsky was the receiver representing the creditors of a stereo components company that went bankrupt. He alleged that its owners, Daniel Virnich and Jack Moores, had plundered the company through excessive payments to themselves.

In 2006 a jury agreed, ordering the pair to pay a $6.5 million judgment, the largest in Wisconsin that year. The case came before the state Supreme Court — twice. The first time, Roggensack did not participate, without explanation, as court rules allow. The second time, in 2011, she cast a critical vote to upend this judgment.

The attorney for the victorious defendants was Donald Schott, who also represented Roggensack in a 2008 proceeding before the state Government Accountability Board.

Both Schott and Roggensack have refused to say whether his services were provided for free or at a reduced rate. The question arose because another justice, Michael Gableman, received free legal services from an attorney whose firm had cases before the court. A recent request for comment made through Roggensack’s campaign adviser, Brandon Scholz, yielded no response.

Marquette University law professor Ed Fallone, Roggensack’s challenger in the April 2 election, is seeking to make recusal an issue in this campaign. He says Roggensack “bears a large part of the responsibility for pushing through” a 2010 change in court rules stating that mere receipt of campaign contributions or endorsements can never in itself require recusal.

In a news release, the Fallone campaign has dubbed this the “Roggensack rule,” saying it “allows interest groups with cases before the court to make campaign contributions to justices.”

Roggensack has defended this change, telling a legislative committee that “money spent to communicate during an election has long been held to be an element of speech, and therefore such expenditures are protected by the First Amendment.”

Fallone, who signed the recall petition against Republican Gov. Scott Walker, does not think general opinions should be grounds for disqualification, because judges are expected to put these aside. He would disagree, for instance, with calls for Gableman to sit out criminal cases because of statements he made as a candidate suggesting antipathy toward criminal defendants.

But Fallone says campaign contributions from parties or lawyers may require recusal: “We should always be concerned that the courts are not perceived as being for sale.”

State Rep. Gary Hebl, D-Sun Prairie, last year introduced bills to make parties to a case disclose judicial contributions, require judges or justices to explain in writing if they refuse a request to step aside, and create a new standard requiring recusal whenever “a reasonable person would question whether the judge could act in an impartial manner.”

The bills went nowhere, but Hebl plans to reintroduce them in the current legislative session.

Fallone supports all of these changes. But he may not got the chance. Roggensack bested him 2-1 in the primary and has a sizable lead in reported campaign cash. According to the news source WisPolitics.com, insiders are wondering whether Fallone will muster enough support to run a credible number of TV ads.