Tag Archives: Wisconsin Supreme Court

List of Supreme Court Finalists Down to Three

This is a pretty good list.

The finalists are 2nd District Appeals Court Judge Mark Gundrum, 3rd District Appeals Court Judge Thomas Hruz and attorney Dan Kelly. Gundrum is a former Republican state lawmaker who served with Walker in the Assembly.

Walker named Hruz to the appeals court in 2014.

Kelly is an attorney who defended Republicans’ 2011 redistricting plan.

Two other semifinalists who did not make Walker’s final list were Jefferson County Circuit Judge Randy Koschnick and Marinette County Circuit Judge James Morrison.

Wisconsin Supreme Court Overturns DPI Law

I think this ruling is largely correct.

Justices Michael Gableman and David Prosser split with their fellow conservative colleagues, siding with the courts two liberal justices to render a 4-3 decision upholding a ruling from 20 years ago that had solidified the state superintendent’s independence as head of the Department of Public Instruction (DPI).

Gov. Walker signed a law in 2011 that would have given his administration greater power in writing administrative rules on education, a function solely preserved for DPI under this ruling.

Ultimately, the court rejected arguments made by Republican Attorney General Brad Schimel to overturn the decision.

While I dislike the concept of a DPI as a Constitutional position in general, it is in our state’s constitution. If we want to change it, we need to revise our Constitution.

Justices Reprimand Justice Abrahamson

Boom. It seems that Abrahamson has become even more bitter and vindictive since being removed as Chief Justice.

Justice Shirley Abrahamson wrote opinions suggesting that Bradley’s decision to participate or not in the decisions without new oral arguments was not a best practice.

She did so again in Thursday’s parental rights case, and that finally triggered a reaction from both Bradley and Chief Justice Patience Roggensack in separate concurring opinions.

“Because Justice Abrahamson has omitted important facts from her separate writings that were well known to her when she personally attacked Justice Rebecca Bradley and because her attacks immediately preceded the election of a justice to our court, it appears that Justice Abrahamson is using the prestige of her judicial office to further private interests,” Roggensack wrote.

She noted that Bradley watched video of the oral argument in tied cases, just like Crooks had when he wasn’t feeling well. And, she said, despite Abrahamson’s repeated suggestion, there is no specific rule about when a new justice can help decide cases, a fact Bradley researched extensively and explained to the court before she helped decide the tied cases.

Prosser retires from state’s highest court

My column for the West Bend Daily News is online. Here you go:

In a somewhat unexpected development, Wisconsin Supreme Court Justice David Prosser has announced his retirement. He will leave the bench in July. The jostling immediately began to find a suitable replacement.

Prosser has served on the Supreme Court for 18 years. Prior to being on the court, Prosser was a private attorney, district attorney and served for 18 years in the Wisconsin Assembly — including two years as speaker of that body. He was appointed to the bench in 1998 by Gov. Tommy Thompson and was elected twice thereafter.

While Prosser has not publicly stated a reason for his resignation, it is not hard to imagine that at 73 years old and after 44 years of public service, he wants to enjoy many years of well-earned retirement. It is also not hard to imagine that the contentious political climate of the court in the past few years in which Prosser was maliciously maligned made the decision to retire an easy one.

From 1998 to 2011, Prosser served with distinction and was respected by all. When Prosser was appointed, the Wisconsin Supreme Court had a liberal majority with Prosser finding himself on the more moderate side of the bench. He was elected unopposed in 2001 with 99.53 percent of the vote.

The court maintained its liberal majority until 2008, when Justice Michael Gableman defeated liberal incumbent Justice Louis Butler. Since then, Prosser has sat on the more moderate end of the conservative majority of the court. That was enough to draw withering fire from Wisconsin liberals when Prosser ran for re-election in 2011.

Prosser became the first target for Wisconsin’s liberals rebelling against newly elected Gov. Scott Walker. Prosser’s re-election effort was in the first election after Walker came into office and signed the Act 10 reform. Since Prosser was identified with the conservative majority of the court and his defeat would swing the court back to a liberal majority that would strike down Act 10, Wisconsin’s liberals and unions pulled out all the stops to defeat Prosser. They unfairly attacked Prosser and made him a proxy for Walker.

They lost. Prosser won. It was the first defeat for Walker’s opponents in a political war that continues to rage.

Since Prosser’s re-election in 2011, Wisconsin’s voters have continued to strengthen the conservative majority on the court to five of the seven justices. Because of this, Prosser’s retirement will not shift the balance of the court. By law, Prosser’s replacement will be appointed by Walker and will not stand for election until 2020. That is a lot of time for the voters of Wisconsin to get to know Prosser’s replacement and decide whether or not he or she is worthy of election.

The process for the appointment has already begun with several people submitting their names to Walker for consideration and several more expected to do so before the May 19 deadline. Many names being floated are current judges like Wisconsin Court of Appeals judges Mark Gundrum, Thomas Hruz and Brian Hagedorn. Others are judges on lower courts like county judges Randy Kischnick and Jim Troupis.

This will be an incredibly important appointment for Walker. Wisconsin rarely fails to re-elect an incumbent Supreme Court justice with Butler being the only incumbent to lose re-election in the past 48 years. It is fairly likely that whomever Walker appoints will serve on the court until he or she is ready to retire.

Walker is entitled to appoint whomever he chooses and will surely spend an inordinate amount of time considering his choice. He will have time to deeply consider his choice. He should not appoint someone who has run for the court and the voters have already rejected. He should appoint someone who has demonstrated sound judgment. He should appoint someone who is young enough to give many years of service to the court if the voters want it. And most of all, he should appoint someone with a deeply conservative judicial philosophy.

Prosser has served the citizens of Wisconsin for more than two generations in two branches of state government, having stood for election 13 times. He deserves our gratitude and respect for his honorable service. Thank you, Justice Prosser — may you enjoy all that Wisconsin has to offer in your well-earned retirement.

Replacing Prosser

The Capital Times has a list of likely candidates to replace the retiring Justice Prosser. Of those on the list, I like Judge Gundrum the best. He was a good egg in the legislature and has been a solid judge.

Judge Mark Gundrum, Wisconsin Court of Appeals, District II

Gundrum, a former Republican state representative, was appointed to the Court of Appeals in 2011. He served in the Assembly from 1999 until he was elected as a trial court judge in Waukesha County Circuit Court in 2010. He reportedly commuted with Walker to Madison during their time in the Legislature. He was featured on the Netflix documentary “Making a Murderer” for his involvement in creating a criminal justice reform bill after Steven Avery was exonerated for a 1985 crime. WisPolitics has reported that Gundrum will apply. He did not return a call for comment Thursday.

Vote For, Not Against

My column for the West Bend Daily News is online. Here it is:

With only two weeks left until the April 5 election in Wisconsin, we are about to endure a withering political barrage that will not end until that blissful dawn April 6, when all of the presidential politicians, their courtiers and the locustal media move on to the next state. But April 5 is not only the primary election for the presidential nominees, it is also the general election for thousands of local elected offices and for the next justice of the Wisconsin Supreme Court. Those local and state elections tend to have far more impact on our daily lives than the national races.

It is easy to vent one’s spleen at all of the reasons to vote against someone, and there sure are plenty of people to vote against this election season. I prefer to focus on the reasons to vote for someone. There are only three contested elections on my ballot this election. Here is whom I am voting for, and why.

There are four candidates vying for two seats on the West Bend School Board. I will be voting for Randy Marquardt and Ken Schmidt. Marquardt is the only incumbent on the ballot, having first been elected to the school board in 2010, and currently serves as the president of the Board. While I strenuously disagreed with Marquardt regarding the referendum to expand Silverbrook, his accomplishments on the board have been impressive.

Since Marquardt was first elected, the district has managed its facilities so that it is no longer in a constant state of crisis and is, in fact, saving money for the next big building need. The school district has implemented an extremely popular and successful walk-in clinic for employees, begun a charter school, expanded online offerings, added vocational courses and helped guide the district through some tumultuous shifts of educational policy at the state level.

Ken Schmidt is a newcomer to the ballot, but brings a wealth of experience in the community and education. Schmidt is a 36-year resident of the district and is married to a public school teacher. He also served as a member of the Board of Regents for Bethany Lutheran College for 27 years. He espouses a belief in being a good steward of the community’s investment in their schools and wants a systematic review of new curriculum programs and testing regimens to make sure they are improving educational outcomes.

Two candidates are vying for the State Supreme Court. Incumbent Justice Rebecca Bradley will be receiving my vote. Bradley was a private attorney for many years before her meteoric rise to the Supreme Court late last year after the untimely death of Justice Patrick Crooks. Having previously served as a Milwaukee County Circuit Court judge and on the Wisconsin Court of Appeals, her rulings were marked by their fairness and strict adherence to what the law is — not what she might think it should be. The fact that her opponents are seeking to smear her with salacious stories instead of attacking her actual performance as a judge is supplemental evidence of the soundness of her judgment. Bradley’s brilliant legal mind and respect for the proper role of a judge makes her the easy choice to keep her seat on the bench.

Both the Republican and Democratic presidential primaries are on the ballot in Wisconsin. I will be voting in the Republican primary and happily voting for Sen. Ted Cruz. The senator from Texas is undeniably one of the most intellectually brilliant candidates to ever appear on the ballot. He was the valedictorian of his high school, graduated cum laude from Princeton, magna cum laude from Harvard Law School, was the editor of the Harvard Law Review, national debating champion, clerked for Chief Justice of the United States William Rehnquist (from Milwaukee) and had a distinguished legal career before winning a seat in the U.S. Senate in 2012 as an insurgent outsider.

Cruz couples his towering intellect with a passionate conservatism that put him at odds with not only the Democrats in the Senate, but with his fellow Republicans whose ideology has slumped to the left. He is ardently anti-abortion, pro-Second Amendment, pro-civil rights, pro-fiscal sanity, pro-Constitution and pro-border security. He has a mastery of the important issues facing our country and a conservative plan to address each of them. Cruz would not only make a great Republican candidate, he would make a great president.

As the election season wears on and the narrative fills up with negativity and filth, it must be remembered that behind all of that blather are some truly impressive people whose service would make our communities, state and nation better. In-person absentee voting began yesterday at your local municipal clerk’s office and election day is on April 5. Get out and vote for someone.


DOJ Files Brief in Wisconsin Carry v. City of Madison

Remember that this is one of the cases on the docket for the Supreme Court this session.

Today, in Wisconsin Carry, Inc. v. City of Madison, Attorney General  Brad Schimel filed a motion supporting Wisconsin Carry’s argument that state law preempts certain municipal gun regulations, namely, Madison’s Transit and Parking Commission’s rule banning all weapons from its Madison Metro buses.

Attorney General Schimel argues, contrary to Madison’s claims, that a municipality cannot delegate power that it does not have, and that municipalities do not have the power to regulate firearms in ways more stringent than state law.  Since state law allows people to possess and transport firearms in vehicles, Madison may not ban them from its buses.

Voters to determine Supreme Court’s direction

My column for the West Bend Daily News is online. Here you go:

The Wisconsin Supreme Court has agreed to review eight cases ranging from guns on public buses to open records to how low-income properties are assessed to how far a police officer’s “hot pursuit” can extend into a citizen’s home. With less than a month before Wisconsin voters head to the polls to choose a Supreme Court justice, the variety and reach of the court’s chosen case load reminds us how important voters’ choice is.

For example, in State v. Weber, an officer turned on his lights to pull over Weber for a busted taillight. Weber proceeded to ignore the officer, pull into his attached garage and head into his house. The officer entered the garage without a warrant and detained Weber. Weber subsequently pled no contest to felony drunk driving (it was not his first time driving drunk).

The question the court will decide is whether the officer should have obtained a warrant before entering Weber’s garage. Even though he was drunk driving, the officer did not know that at the time and was only pursuing him for the minor offense of a broken taillight. Should law enforcement be permitted to enter private property without a warrant for such a minor offense?

In Democratic Party of Wisconsin v. Wisconsin Department of Justice, the court will decide on the appropriate balance between the public interest in keeping a record hidden versus the public’s right to know under Wisconsin’s open records laws. In this case, the Democratic Party sought videos in which Attorney General Brad Schimel, who was a candidate at the time, conducted training regarding victims of sensitive crimes and how to prosecute internet sexual predator cases.

The Democratic Party wanted the videos because they thought there might be some embarrassing things in the video that could be twisted against Schimel during the campaign. The DOJ refused to release the videos, saying the public interest in protecting the identities of the victims and the techniques used by investigators and prosecutors of internet sexual predator cases outweighed the public’s interest in seeing the videos. The Democratic Party disagreed and appealed. The court must decide where the appropriate balance lies between these competing public interests.

In Wisconsin Carry Inc. v. City of Madison, the court will decide if the city of Madison violated the state’s concealed carry law when implementing a ban on guns on public buses. Wisconsin’s concealed carry statute prohibits local units of governments from enacting an ordinance or resolution regulating the ownership, transportation, taxation or carrying of firearms.

The city of Madison has banned people from carrying firearms on city buses, but claims the statute does not apply because it is a “bus rule” and not an ordinance or resolution and that the rule was enacted by the city of Madison’s Transit and Parking Commission — not the city itself. Wisconsin Carry sued the city, arguing — rightly — the statute is designed to prevent local governments from enacting gun laws more restrictive than the state as a whole.

The Supreme Court must decide how the statute must be applied. Of course, in this case, the Legislature could have easily clarified the statute before now, but they must certainly do so next year if the Supreme Court rules in favor of the city of Madison.

As the highest court in the state, the Supreme Court decides cases that govern how the laws apply to us, how far our government can reach into our lives, how transparent our government must be and countless other important matters. As such, the selection of each justice on that court is of critical importance. On April 5, Wisconsin’s voters will choose between two drastically difference candidates.

Wisconsin Court of Appeals Judge JoAnne Kloppenburg is running for the Supreme Court for the second time after being rejected by the voters five years ago. She is proudly a liberal’s liberal with a decidedly activist perspective regarding the role of a Supreme Court justice.

Supreme Court Justice Rebecca Bradley was appointed to the court in 2015 and is on the other end of the judicial philosophy spectrum. She has demonstrated a healthy understanding that judges must act according to how the law is and not how they would like it to be.

Unlike the United States Supreme Court, the voters decide who sits on the state Supreme Court. Vote wisely.

Supreme Court Says (Again) Shut Down Doe

How many times do they have to say it?

The state Supreme Court today rejected a request to reconsider its July order shutting down John Doe II and rescinded the special prosecutor’s ability to continue overseeing the case.

The court ruled Francis Schmitz’s appointment as special prosecutor was invalid. But it made that order effective with the release of today’s decision, leaving him only limited powers to carry out the court’s order to return evidence seized in the probe into coordination between conservative groups and Gov. Scott Walker’s campaign during the recalls.

The ruling noted Justice David Prosser’s concurring opinion in the July decision also reached the conclusion that Schmitz’s appointment was invalid. But that view did not carry an order for Schmitz to cease his work.

RIP Justice Patrick Crooks

Sad news for Wisconsin.

Supreme Court Justice Patrick Crooks died today at the state Capitol, Chief Justice Pat Roggensack confirmed this afternoon.

Crooks, 77, had announced last week that he would not run for re-election next year.

Crooks Won’t seek Reelection for Supreme Court

This was expected, but not it is for sure. It will be an open seat.

Supreme Court Justice Pat Crooks announced today he will not seek re-election.

The 77-year-old justice noted today is the 38th anniversary of his swearing in for the Brown County bench following an appointment by then-Acting Gov. Martin Schreiber. He won his first term on the state Supreme Court in 1996 and was unopposed as he sought re-election in 2006.

“I have been very fortunate to have had the opportunity to serve as a judge and justice and to have had the support of the voters of Brown County and Wisconsin over the years,” Crooks said.

Appeals Court Judge JoAnne Kloppenburg and Milwaukee County Judge Joe Donald have already announced plans to seek Crooks’ seat next year, and Appeals Court Judge Rebecca Bradley has filed paperwork to run as well. Madison attorney Claude Covelli has said he is considering a bid.

Bradley is a good conservative candidate. It’s going to be a heated race.

Wisconsin Supreme Court Ends John Doe Investigation

In a long ruling settling several cases at once, the Wisconsin Supreme Court has forcefully and completely ended the John Doe investigation as unconstitutional and outrageous.

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

Good. Now the rogue prosecutors need to be held accountable.

Wisconsin Supreme Court to Rule on John Doe

On Thursday

Unnamed petitioners have filed two lawsuits seeking to halt the John Doe proceeding, Wisconsin’s version of a grand jury investigation where information is tightly controlled. Prosecutors have filed their own action seeking to reinstate quashed subpoenas in the probe. The high court is expected to rule in all three lawsuits.

It is widely expected that the court will put a stop to the investigation as both a state and federal judge have already ruled. Let’s hope so. Then, let’s hope that the prosecutors see some punishment for abusing their power as they have.

One thing though… it is completely unacceptable that the Supreme Court has taken this long to act. This has been a hot legal and political issue for months and months. The court has shown that it can act quickly when it needs to and chose not to do so in this case until not. One wonders if it was former Chief Justice Shirley Abrahamson holding up the process and the new Chief Justice got things moving along. In any case, it took far too long for the court to act on a case that has caused so much turmoil in the state.

Chief Justice Patience Roggensack

Huzzah, huzzah.

MADISON, Wis. — Wisconsin Supreme Court justices moved quickly Wednesday to elect a new chief following certification of a constitutional amendment that ended seniority as the sole determinant, even as a federal lawsuit was pending seeking to delay replacing longtime Chief Justice Shirley Abrahamson.

Abrahamson objected to the email vote making Justice Patience Roggensack the chief justice, and Abrahamson continues to believe she still holds the position, her attorney Robert Peck said in a letter filed with U.S. District Court late Wednesday.

Four justices voted via email to replace Abrahamson with Roggensack as chief justice, Peck said. Roggensack accepted the position, even though Abrahamson and Justices Ann Walsh Bradley and Patrick Crooks objected, Peck said in the letter.

Judge Allows New Chief Justice Selection Process to Proceed


MADISON, Wis. (AP) — The Wisconsin Supreme Court could have a new chief justice soon, after a federal judge on Tuesday refused to block a voter-approved change in how the head of the court is selected.

While the judge recommended that Abrahamson stay chief until her case is fully adjudicated in order to avoid switching chiefs again should she win. I disagree. They should elect a new chief ASAP.

It is funny that nobody – Abrahamson, Judge Peterson, etc. – thinks that Abrahamson’s peers would elect her to be their chief. That’s telling.


Supreme Court Elections

As often happens in Wisconsin elections, the races regarding the Supreme Court is a mixed bag, but overall positive.

Supreme Court

99% reporting
Name Votes Vote %
Ann Walsh Bradley (inc) 468,322 58%
James Daley 338,655 42%

Elect Chief Justice

99% reporting
Name Votes Vote %
Yes 430,507 53%
No 380,518 47%

Bradley’s win is not a surprise. Daley was a flawed candidate for a variety of reasons and the conservatives had a hard time getting behind him. He was the better choice than Bradley, but couldn’t get the support to overcome such a strong incumbent.

The constitutional change to make the chief justice elected by his or her peers instead of being a mark of tenure is a wonderful win. It’s not a huge thing, but it injects a bit more sense into that institution. While it will be gratifying to see Chief Justice Abrahamson ousted from her perch, the long term positive effect of the change is more important.

As a whole, the Bradley win is a wash. It was a vote for the status quo and nothing changes there. The constitutional change is a good thing, so as a whole, it’s a net positive.