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Wednesday, March 18, 2009

Staying Above the Fray

Chief Justice Shirley Abrahamson fends off attacks on her record

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For many Wisconsinites, a state Supreme Court without Shirley Abrahamson is unthinkable.

Abrahamson has served on the state’s highest court for 33 years, 13 of them as its first female chief justice.

During her tenure, Abrahamson has developed a national reputation as a no-nonsense jurist who isn’t afraid to wield the Constitution-granted power of the courts. That has made her an accolade-winning icon, a formidable foe, and a target for “judicial conservatives” who want to reign in the power of the courts when they disagree with specific decisions.

But despite her record, Abrahamson’s time on the state Supreme Court could end. On April 7, Abrahamson will be up for re-election to another 10-year term on the court.

Can a jurist with such a long and complex judicial record stay above the fray during today’s win-at-all-costs judicial elections?

Court watchers have been holding their breath for a year, since the April 2008 defeat of state Supreme Court Justice Louis Butler by Michael Gableman, a circuit court judge from Burnett County.

It didn’t hurt Gableman that his campaign got a boost from Wisconsin Manufacturers & Commerce (WMC), which aired $1.7 million worth of distorted anti- Butler ads.

But Gableman also wasn’t afraid to play on racial fears in his attacks on Butler, the first African-American jurist to serve on the state Supreme Court. While candidates often let sympathetic interest groups air the sleaziest ads, Gableman himself unapologetically sponsored a race-baiting attack ad that was denounced by observers from across the ideological spectrum.

The lesson learned from that campaign is that sleaze can prevail, even in races for sober, nonpartisan judicial positions.

Abrahamson says she’s trying to stay above the fray. “This campaign and its primary function is the same as my other campaigns,” Abrahamson told the Shepherd. “I am a justice who is fair and independent. I base my decisions on the facts and law and not personal ideology, not a personal agenda, not on outside interest groups.”

 

Koschnick on the Attack

In the wake of Gableman’s victory, many expected the same sort of stars to align this year—conservatives would rally around a “judicial conservative” who would run on a cops-and-criminals platform and sling mud at the more liberal sitting jurist with a much longer and more complex record to defend.

In some ways, the same stars have lined up. Despite being a former public defender, Jefferson County Circuit Court Judge Randy Koschnick is solidly conservative. He is an evangelical Christian who has earned endorsements from the National Rifle Association Political Victory Fund and the Wisconsin Right to Life PAC. He’s the first to say that he and Abrahamson are on “opposite ends of the ideological spectrum.” He’s a judicial conservative, he says, while Abrahamson “legislates from the bench.”

Yet the WMC and other deep-pocketed conservative groups have—so far—sat out of this race. The most recent campaign finance records show that Abrahamson has a 56-to-1 fund-raising advantage over Koschnick. But even without financial resources, Koschnick is campaigning much as Gableman did by hammering Abrahamson’s record on criminal cases—never mind that criminal matters are only a fraction of the Supreme Court’s caseload, or that Abrahamson has the endorsement of a wide range of law enforcement officials across the state. (Koschnick’s campaign did not respond to a request for an interview.)

In a Milwaukee Press Club-sponsored forum last week, Koschnick ramped up the intensity of his attacks, saying Abrahamson has shown “hostility and blatant disrespect for law enforcement.” He says she’s ruled “against” law enforcement 60% of the time in a “predictable pattern.” He’s trumpeted a quote from former state Supreme Court Justice William Bablitch saying that Abrahamson is “well out of the mainstream when it comes to criminal matters.”

The Tale of the Endorsement

Abrahamson has countered that she has broad support among law enforcement entities, including a slew of district attorneys, judges, sheriffs, police chiefs and state troopers. “They expect me to call the case as I see it,” she said at the forum. “They don’t expect me to be pro-prosecution, pro-defense or pro-any cause, pro-any group. Justice should not tilt.”

Besides, Abrahamson said at the candidate forum, Koschnick lobbied hard for the support of the Milwaukee Police Association (MPA) and the Wisconsin Professional Police Association (WPPA), and they endorsed her instead.

Koschnick admitted that he did try to earn those endorsements. “The people on the [MPA] board said to me, ‘We’re primarily a labor union,’” Koschnick said at the forum. “‘We understand her decisions are consistently not good for law enforcement. But our primary objective in this organization is benefits and pay for our members and that supercedes other concerns.’”

That revelation was news to Milwaukee Police Association President John Balcerzak and Thomas Fischer, the MPA vice president who conducted the candidate interviews. Both of them attended the forum and heard Koschnick’s defense.

“If I would have been able to stand up I would have said that Judge Koschnick’s recollection of the interview process is in error,” Balcerzak told the Shepherd. “Fischer leaned over to me and said, ‘I don’t recall saying that.’”

Fischer, speaking to the Shepherd, added, “Randy’s got things mixed up.”

Contrary to Koschnick’s assertions, Balcerzak said the MPA focuses on a broad spectrum of issues when making endorsements, not just the candidates’ rulings on labor issues. “We’ve supported Abrahamson since 1979, her first election,” Balcerzak said. “We feel that her tenure on the bench gives her the experience, credibility and wisdom to have a fair judgment on everything that’s brought before her. We’ve been on both sides of her judgments, to tell you the truth. We’ve won some and we’ve lost some. But we accept her judging the issues on the merits.”

Simplifying Complex Cases and Pandering to Fears

Koschnick has also been pounding away on Abrahamson voting “in favor of the criminal defendant 60% of the time” since 2000.

Abrahamson countered that she didn’t know that there was a certain average that she was supposed to reach.
“It’s very easy to cherry-pick cases and distort the work of the court and the work of a particular justice,” Abrahamson said.

Koschnick has since released a list of 70 cases that he says shows how Abrahamson’s rulings are out of the mainstream.

But a closer examination of those rulings show that Abrahamson is not outside of the mainstream. In fact, if they show anything at all, they indicate that she is a stickler for details in legal gray areas so that each side receives a fair hearing in court.

“The Supreme Court does not sentence defendants,” Abrahamson told the Shepherd. “The Supreme Court does not determine whether a defendant is guilty or innocent. The Supreme Court determines whether they got a fair trial according to the law, with all of the legal issues handled properly. That’s what the court determines.”

In fact, legal experts consulted for this article said they were worried about Koschnick’s criticism of Abrahamson’s rulings, saying that they were shallow or distorted readings of her writings on complex constitutional issues involving the powers of the state and an individual’s freedom.

“Either he has a profound lack of understanding about the law,” said one attorney, “or he’s deliberately manipulating the facts and blatantly pandering to people’s fears.”

Milwaukee attorney Thomas Foley, who has been dissecting the campaign on his blog, Illusory Tenant, said that Koschnick argues for judicial restraint when he doesn’t agree with a decision, but then argues for more judicial power when he sees fit. “He wants everything both ways,” Foley said.

Providing Guidance and Clarification of the Law

Based upon his critiques, it could be argued that Koschnick favors more expansive government powers to protect the public’s safety, even if that means that individuals must give up their own rights and liberties. Dubious police practices would be upheld in a Koschnick court because they would be “pro-law enforcement.”

Take, for example, Koschnick’s recent charge that Abrahamson showed “blatant hostility” toward law enforcement in her dissent on a “Badger stop” case. For those who haven’t experienced one, a Badger stop is a technique used by law enforcement officers to get an individual’s consent to search their property during a traffic stop. But this is done in a casual, manipulative way after the officer has released the individual from custody. Because the request is so informal, the individual has no idea that he or she can refuse or ignore the request.

In the case Koschnick points to, 2002’s State v. Williams, Abrahamson argued that a reasonable person— in this case, at 2:30 a.m. on a rural road outside of Eau Claire— would not have known that he could refuse the officer’s request to search his car after the traffic stop concluded. And Abrahamson’s opinion could hardly be considered extreme or hostile, since she sided with both the judge in the original jury trial and the appellate court judges who reviewed the case.

In her opinion, Abrahamson wrote that she was concerned that law enforcement officers were being trained to do Badger stops “to trick motorists into giving up their rights.” She asked, rhetorically, “Shouldn’t the public be educated about their rights to refuse to answer police questions and their rights to refuse to consent to a search of their vehicles?”

In fact, Milwaukee attorney Alex Flynn argued, the Supreme Court’s requests to clarify police procedures should be welcomed by law enforcement, since it means that the evidence they gather will hold up in court. “Most law enforcement should be grateful for clear guidelines,” Flynn said.

That sentiment was echoed by Thomas Fischer, vice president of the MPA, who has been reading the full court opinions of the cases that Koschnick has chosen to highlight.

“When I read some of these decisions, I can see why she made these decisions, even if they were against law enforcement,” Fischer said. “These rulings can be educational tools. Some of these things, I wouldn’t say that it’s bad police work, but I wouldn’t have done it that way. I would have done it a different way. And you can see why these decisions were made. Decisions come out of the Supreme Court based on bad police work, I hate to say. But that’s the truth. [The court decisions are] clarification of procedures or the law itself is so ambiguous that you have to have some guidelines on how to enact it.”

Koschnick, on the other hand, seems to be utterly comfortable with “bad police work,” since it would show that he “supports” law enforcement. On April 7, the voters of Wisconsin will have to decide if they’re comfortable with it, too.

What’s your take?

Write: editor@shepex.com or comment on this story online at www.expressmilwaukee.com.