Under Fire

llustrated by Sharif TarabayPatrick Crooks grabs from his desk an odd curio, an egg-shaped football player wearing the uniform of Julius Jones, one-time star running back at Crooks’ alma mater, Notre Dame. It’s actually a Russian doll made up of successively smaller Julius Joneses tucked inside each other, a gift from a former colleague who visited Russia. Crooks marvels that such things are made, half a world away, for the benefit of Fighting Irish fans.But Crooks never opens the lid to show what’s inside, an odd but characteristic act of restraint. He is, in all things, reserved and unimposing –…

llustrated by Sharif Tarabay

Patrick Crooks grabs from his desk an odd curio, an egg-shaped football player wearing the uniform of Julius Jones, one-time star running back at Crooks’ alma mater, Notre Dame. It’s actually a Russian doll made up of successively smaller Julius Joneses tucked inside each other, a gift from a former colleague who visited Russia. Crooks marvels that such things are made, half a world away, for the benefit of Fighting Irish fans.

But Crooks never opens the lid to show what’s inside, an odd but characteristic act of restraint. He is, in all things, reserved and unimposing – from his staid wardrobe to the fact that he answers his own office phone. It’s a disposition comically opposed to his sudden reputation as the Wisconsin Supreme Court’s most controversial justice, a supposed bomb-thrower who has almost single-handedly pushed the court to the left.

Crooks, who seeks re-election to a 10-year term next April, has been called “the David Souter of Wisconsin” – a presumed conservative turncoat. In August, FreedomWorks, a national Republican group led by Dick Armey, former majority leader of the U.S. House of Representatives, announced that it was prepared to spend $2 million to defeat Crooks due to his votes for “frivolous lawsuits” that have turned Wisconsin into a “Tort Hell Tundra.” Piling on, Armey said trial lawyers “used to avoid Wisconsin but now may swarm to the state like a scourge of mosquitoes.”

The following month, Wisconsin Assembly Speaker John Gard encouraged candidates who are not “activists” to run against Crooks. (At press time, no challengers had declared.) The court’s recent rulings have also drawn fire from talk radio’s Charles Sykes and Milwaukee County Circuit Court Judge Michael Brennan, who has accused the court of being so activist that it “raises concern about the proper exercise of judicial authority under the state’s constitution.”

But the harshest criticism has come from Wisconsin Manufacturers & Commerce, the big business lobby. It is decrying three cases decided this year that were sympathetic to the liability rights of injured parties. The cost of doing business will go up as a result, says Jim Pugh, WMC spokesman.

The group is running alarmist ads in publications like the Milwaukee Business Journal and Corporate Report Wisconsin that show a sports car passing a billboard with an outlined map of Wisconsin and the proclamation, “Hello, Trial Lawyers! Good-bye, Jobs!” The ad claims that “America’s personal-injury lawyers are racing to Wisconsin” due to recent court rulings that “send a clear signal to every CEO and top executive in the U.S. that Wisconsin will be a risky state in which to operate.”

The fact that a pro-business group like WMC is now portraying the state as a bad place to do business (a contradiction Pugh acknowledges) shows just how crazed the reactions to Supreme Court decisions have gotten.

To say that Patrick Crooks is upset or annoyed by this -tumult is to ascribe to him emotions that seem beyond his repertoire. He appears more bemused, suggesting that his critics misunderstand the scope and potential applications of recent -rulings. “The way it’s been portrayed is a real exaggeration,” he says regarding one decision.

Still, there’s no question that some recent court decisions in both the civil and criminal arenas have been surprising. In several cases, Crooks joined the court’s newest justice, former Milwaukee judge Louis Butler, in creating a thin 4-3 majority. Butler, a reliable liberal, was tapped last year by Gov. Jim Doyle to replace Justice Diane Sykes, a reliable conservative, eroding the court’s rightward tilt.

That set the stage for Crooks to emerge as the court’s key swing vote, a majority-maker who is as likely to side with the court’s liberals (Justices Shirley Abrahamson, Ann Walsh Bradley and Butler) as with its conservatives (David Prosser, Jon Wilcox and Pat Roggensack). According to an analysis by the Wisconsin Law Journal, Crooks joined the majority in 87 of 91 -cases in the court’s 2004-’05 term, including 16 of the 19 cases in which the final tally was 4-3. As Patrick Crooks goes, so goes the court. In this sense, he is actually less like Souter and more like Sandra Day O’Conner.

The court’s recent record also suggests a triumph of sorts for Chief Justice Abrahamson, by far the longest-tenured justice. For the first time in years, she is not the court’s most frequent dissenter. (That distinction now falls to Wilcox.) Moreover, the court now relies to a greater extent on the state constitution (rather than the federal Constitution), as Abrahamson has long urged.

The result is a court that’s arguably more liberal. In criminal cases, it is more mindful of the rights of defendants; in civil cases, more sympathetic to individual litigants than big business and other powerful interests. But what may be more striking than any ideological change is the court’s sheer -unpredictability.

“It’s an interesting court to watch now,” says Susan -Steingass, a law professor at the University of Wisconsin-Madison. “Nothing’s for sure.”

 


For an institution that wields so much power over law and public policy, the Wisconsin Supreme Court is a modest operation: just 38.5 employees and a 2003-’05 budget of $8.5 million. Besides deciding major cases, the justices oversee operation of all state courts and impose discipline on wayward lawyers and judges.


One of the Supreme Court’s key functions is selecting cases, since the decision not to take a case typically leaves the -lower court ruling standing. Each year, the court has more than 1,000 cases from which to choose.

Usually, it takes just three of the seven justices to accept a case. The Supreme Court is not an “error-correcting” court: The key concern, according to its operating procedures, “is not whether the matter was correctly decided or justice done in the lower court.” Instead, says former Justice Janine Geske, now a Marquette University law professor, the court looks to find issues where the law is unclear.

Last year, the court took on 128 cases, up from just 88 in 1995. “In my 13 years here, I have never seen them busier,” says Amanda Todd, the court’s spokesperson. “They’ve -really picked up the pace.” Traditionally, the court accepts many more civil cases than criminal ones.

Each case is randomly assigned to a justice whose duty is to lead discussion before and after oral argument. Attorneys for each side then submit a series of briefs. For a recent month, a single set of the materials submitted to each justice for review measured 26 inches tall. Law clerks – one for each justice – may write memos and even make recommendations, but each justice is expected to read these materials prior to oral arguments. (“Sometimes I do some skimming,” admits Crooks.)

During oral arguments, the contesting attorneys each have 30 minutes to make their case. In reality, they are lucky to talk three minutes before the justices start peppering them with questions, parsing the core legal issues and pushing the attorneys to defend their positions. At a recent hearing challenging the legality of Gov. Doyle’s gambling compacts with the state’s Indian tribes, the attorneys eventually gave up on their prepared remarks and just handled the hailstorm of questions. (That hearing, ironically, played out under a mural – representing Wisconsin’s legal history – of the trial of Chief Oshkosh. The Indian leader was acquitted for a revenge killing he committed in accordance with tribal custom.)

After oral arguments, the justices discuss each case privately and take a preliminary vote. One member of the initial majority is then assigned to write an opinion. Again, the selection is random: The chief justice pulls out a blue box and removes seven poker chips, each with an orange smiley face sticker with a number corresponding to each justice’s seniority rank. (This rank also determines the seating arrangements, with the least-senior justice positioned nearest the door in case something needs to be fetched.) The chips are turned up one at a time until they produce the number of a justice in the majority who has not already been assigned a case.

Opinions are written collaboratively; even justices who disagree with the majority may suggest revisions. After what can be numerous rounds of conferences and revisions, a majority opinion is produced. Then justices can either sign on or write a concurring or dissenting opinion, which others can join. Judges, notes Geske, can change their votes right up until a finalized set of opinions “walks out the door.” Often, the opinions for one case fill more than 100 pages. All are posted at www.wicourts.gov.


In years past, the Wisconsin Supreme Court has been dogged with tales of infighting and division, mostly centered around Abrahamson. In 1987, The Milwaukee Journal exposed these problems in a series entitled “Discord in the Court.” Former staffers and attorneys described a court that was rife with internal conflict and barely functional. “They claw at each other,” said one former clerk. “They are more preoccupied with one another than the law.” Even one justice anonymously dumped on Abrahamson: “In conference, she does nothing but give us the finger. She piddles all over our opinions in her dissents.” Such squabbling was blamed for low court productivity and for opinions written primarily as “reactions to other justices.” (Of the seven justices on board at this time, only Abrahamson remains.)

Tensions erupted again in early 1999, three years after Abrahamson, by virtue of seniority, rose to chief justice. Four justices accused Abrahamson of abusing her authority regarding court operations. (Among the sore spots: her decision to allow a courtroom aerobics session and hang a portrait of the state’s first female attorney. Sniffed Abraham-son, “This began with trivia and has stayed at that level.”) This so-called Gang of Four – Justices Wilcox, Crooks, Bill Bablitch and Don Steinmetz – moved to strip the chief’s constitutional powers but backed down when she threatened to sue. Instead, they passed new rules giving other justices a say in day-to-day decisions. Several also actively supported Abrahamson’s opponent, who lost decisively, in that year’s election.

But while tensions between personalities remain, the court is said to be much more collegial now. “Right now, the seven of us seem to mesh pretty well,” says Crooks. Of Abrahamson, he says, “She’s become a very good chief justice. She handles different personalities very well.”

Former Justice Bablitch, who left the court in 2003, says “Justice Abrahamson has become much more comfortable in her role.” While he hears that Abrahamson is still “loathe to accept criticism,” the good news is “it’s no longer her way or the highway.”

Abrahamson is happy to embrace the idea that she has improved (“I hope I change all the time for the better”) but says the mix of personalities has changed, too: “Every time you get a new justice, it’s a new court in terms of how you work together.” It’s also a new court in terms of how cases are getting decided.


Michael Yovovich remembers how it used to be. During his 28 years in the appellate division of the Office of the State Public Defender, he tried to avoid ending up before the Supreme Court. Often when he did, it was because he prevailed at the appellate court level and the prosecution appealed.

“I win, I’m scared,” recalls Yovovich, who retired earlier this year. “Will the Supreme Court take it and reverse?”

Yovovich saw the court as “uniformly against the defense and individual rights,” as unwilling to accept cases appealed by the defense. For instance, one of his colleagues tried, without success, to get the court to hear an appeal on behalf of Steven Avery, a man convicted of sexual assault. In 2003, after serving 18 years in prison, Avery was freed when DNA evidence proved his innoocence.

But Yovovich says things are different now: “It’s not going to be a dead-bang loser just because it’s a criminal case.”

In several cases this year, the Supreme Court has signaled its concern about the possibility of wrongful convictions and the due process rights of defendants. It ordered a new trial for Ralph Armstrong, convicted of a 1981 rape-murder in Madison, based on newly discovered DNA evidence. It opened the door for overturning the conviction of former Green Bay police detective John Maloney for the 1999 killing of his estranged wife.

In State v. Knapp, the court ruled that evidence seized due to a deliberate violation of a suspect’s Miranda rights could not be used against him. Critics are aghast because the -excluded evidence included clothing that contained a murder victim’s blood. But the court’s 4-3 majority declared: “It is not too much to expect law enforcement to respect the law and refrain from intentionally violating it.” State v. Dubose, another 4-3 decision, took a stand against “show-up” identifications, where victims are shown a single suspect and asked, in essence, if this is the guy.

Yovovich is especially heartened by the court’s July ruling in State v. Jerrell that a juvenile suspect’s confession was involuntary and could not be used because of the coercive way in which it was obtained. (Milwaukee police handcuffed a 14-year-old boy to a wall for two hours, then questioned him for five and a half hours more, denying his requests to call his parents.) “This sends a clear message to the [lower] courts that those standards must be applied,” says Yovovich.

But the Jerrell decision went further, to the dismay of conservatives who see it as an example of legislating from the bench. The court, on yet another 4-3 split, declared that interrogations of juvenile suspects must be recorded “where feasible” and without exception “in a place of detention.” (The three dissenters agreed with suppressing the confession but not with this new requirement.) Radio Shack had a great week as police across Wisconsin scrambled to find ways to record these interrogations. And the ruling gave a major boost to legislation that grew out of a state commission appointed in the wake of the Avery case.

“It helped accelerate this,” says Rep. Mark Gundrum (R-New Berlin), chair of the Avery Task Force, whose bill would require re-cording of all juvenile interrogations, as well as any involving adults suspected of felonies. Until the Supreme Court ruling, “There was a reluctance toward any kind of mandate coming down from the state,” he says. Gundrum’s bill goes beyond the court ruling to establish standards and exceptions and helps police agencies pay for recording equipment and storage through a 1 percent hike in the state’s criminal penalty surcharge. The bill, which sets new standards regarding eyewitness identification and the use of DNA evidence, went on to unanimously pass both houses of the state Legislature.


The Avery Task Force – made up of an ideologically diverse array of prosecutors, judges and advocates – played a pivotal role in the Supreme Court’s approach to criminal cases. In late 2004, the task force presented findings at a seminar on wrongful convictions in Madison attended by lawmakers, attorneys, judges and all seven members of the Wisconsin Supreme Court.

“They were very attentive,” recalls Gundrum of the justices. “There’s no question in my mind that they are more focused on the issue of wrongful convictions than perhaps at any time.”

Justice Crooks concurs: “I thought the seminar was very helpful in spotlighting some of the rough spots in the criminal justice system.” For instance, he notes, the court’s ruling in Dubois “reflects current thinking in regard to eyewitness identifications.” Once considered highly reliable, they are now seen as highly fallible, especially when the witness is shown only a single suspect. But for critics like Charlie Sykes, this is an example of the court “basing decisions on questionable social science research in lieu of settled law.”

The court is now deciding another case involving eyewitness identifications. It concerns Forest Shomberg, a 41-year-old former Madison resident serving a 12-year prison term for a 2002 sexual assault and convicted almost entirely on the basis of eyewitness identification. He was placed in a lineup with six individuals, a practice the Avery Task Force has deemed more likely to result in false identifications than if suspects are presented sequentially, one at a time.

“What happens is people tend to make a relative judgment,” says -Gundrum. Indeed, the victim in Shomberg’s case agreed at trial that she picked him because he seemed “the best of the six,” though she wasn’t sure.

Oral arguments were heard in late September; the court’s decision could come anytime before its term ends in June.

Interestingly, in both Dubois and Knapp, the court relied on the state’s own constitution to give defendants greater protection, a concept championed by Abrahamson since she joined the court in the mid-1970s. In Knapp, the court suppressed the evidence despite a U.S. Supreme Court ruling in the same case allowing it in. Justice Crooks wrote a concurring opinion “to emphasize that the majority opinion serves to reaffirm Wisconsin’s position in the ‘new federalism’ movement” of states going beyond the protections afforded by the U.S. Constitution and U.S. Supreme Court.”

Crooks noted that this movement has gained strength nationally over the last three decades because it speaks to both conservatives’ concern with states rights and liberals’ concern with safeguarding individual liberties. “People are waking up to their own state constitutions,” he says.

Abrahamson, a national leader in this arena, explains that federal law serves as a floor, not a ceiling, when it comes to basic rights. While the federal law aims to meet the needs of all 50 states and the federal government, “the state constitution was created by the citizens of this state and adopted by the citizens to fit Wisconsin conditions,” she says.

Conservatives like Circuit Court Judge Michael Brennan disagree. He says the court’s recent rulings smack of judicial activism because they depart from earlier decisions that “interpreted the same state constitutional provision in conformity with – not broader than the U.S. Constitution.”


But nothing has stirred more reaction than the court’s rulings in three big liability cases: Miller Park, medical malpractice and lead paint.

The Miller Park decision, rendered in March on a 5-1 vote (Justice Prosser abstained), overturned an appellate court that threw out a $94 million punitive damage award – the largest in state history – against the operators of the Big Blue crane that collapsed in 1999, killing three workers. The appellate court ruled that the defendant had not acted with malice or intent to harm. The Supreme Court found this interpretation too narrow, saying punitive damages could be assessed if defendants merely acted with intentional disregard for the workers’ safety.

“This is a very big decision for individual plaintiffs holding large companies responsible for their reckless behavior,” says Milwaukee lawyer Walt -Kelly, who ran unsuccessfully against Wilcox in 1997. Yet punitive damage awards may still occur infrequently, experts say.

“Punitive damages are rarely asked for,” says UW law professor Steingass, who served nine years as a Circuit Court judge handling civil cases, because the guilty party must have acted with reckless disregard for the rights of others, and that’s hard to prove. Indeed, Steingass says the perceived phenomenon of sky-high -civil judgments is largely a myth. A national analysis of cases from 2000 showed that the median tort award was $31,000. And most cases that go to trial are won by the defense.

In fact, the Miller Park decision avoided deciding whether the $94 million award was excessive, an issue it may need to revisit. Crooks, in a concurring opinion, suggested that this was something the court should have done, signaling to both parties some discomfort with this amount.

With only Wilcox dissenting, this decision elicited little reaction until later liability cases were decided by the court.

Major controversy arose only after Ferdon v. Wisconsin Patients Compensation Fund, which struck down the state’s statutory cap on non-economic damages in medical malpractice cases. The case concerned a boy left partially paralyzed with a deformed arm due to an injury at birth. A jury awarded him $700,000 in non-economic damages; the judge reduced this to $410,322 to comply with the caps.

The Supreme Court, rejecting arguments that malpractice lawsuits drive up medical costs, found “no rational basis” for cutting off relief to the most severely injured patients, saying this violated the equal protection clause. (The argument, in essence, is that more severely injured people should have a right to higher awards and should not be capped at a level appropriate for those with lesser injuries.) Crooks, in a concurring opinion, wrote that the Legislature could pass a cap on non-economic damages, but the one in place had been “set arbitrarily and unreasonably low.”

Justice Prosser, a former state Assembly speaker, wrote a stinging dissent accusing the majority of operating as a “super-legislature.” He also faulted his colleagues for relying on the state constitution, thereby insulating the ruling from U.S. Supreme Court review.

Some state physicians have been screaming bloody murder, and the Legislature is rushing to enact a new cap. But the Wisconsin Association of Trial Lawyers pointed out that the old cap, in place since 1995, affected just nine jury awards, for a total reduction of $10.2 million, or “18 cents per person in Wisconsin per year.” Others note that malpractice-related expenses account for less than one-half of 1 percent of state healthcare costs.

The third bells-and-whistles case, involving lead paint liability, was decided in July on a 4-2 vote. The court ruled that a young man who allegedly suffered retardation from eating paint chips in Milwaukee as a toddler could seek damages, even though he wasn’t sure which of several companies made the paint. (His lawyers still must prove that the chips caused the injury – no easy task. But one of the companies has already agreed to pay a $35,000 settlement, 1 percent of the total sought.)

“The majority casts a wide net, and that will ensnare numerous defendants and have drastic consequences for doing business in Wisconsin,” Justice Wilcox argued in his fiery dissent. The decision will encourage plaintiffs to sue “entire industries” rather than the -manufacturer of the product that caused the injury.

Crooks says the court was simply applying its own precedent of “risk-contribution” from a 1984 case involving DES, an anti-miscarriage drug blamed for birth defects. “If this was such a horrible decision, where was the outcry [in the earlier case]?” He adds that the circumstances in the lead paint case are exceedingly rare: “It’s not a case that’s going to be applied over and over again.”

Justice Butler, who wrote the -majority opinion in the lead paint case, says the court actually narrowed the precedent in the DES case, ruling that the plaintiff must prove the companies knew they were making a dangerous product. “We didn’t just extend risk-contribution to every situation.”

The case is particularly irritating to Pugh and Wisconsin Manufacturers & Commerce. “It’s crazy, absolutely crazy,” says Pugh. Wisconsin will be “flooded with frivolous lawsuits by trial lawyers seeking to get rich and killing jobs in the process,” he claims.

But some say Pugh’s doomsday scenario may be aimed more at politics than policy. Former Justice Bablitch, who, along with Steingass, is one of Crooks’ campaign co-chairs, argued that WMC is out to “froth up their constituents, raise some money and perhaps elect some candidates favorable to their positions.”


Few, however, expect the strategy to result in Crooks losing his re-election bid. Only once in the last 100 years has a sitting Supreme Court justice been ousted – Chief Justice George Currie in 1968, in part due to backlash over a court ruling that upheld the right of the Milwaukee Braves to move to Atlanta.

Even Pugh contends that WMC has no interest in trying to take Crooks out. He cites an analysis by a national consultant finding that Crooks voted in favor of “restraining the spread of liability” in 56 percent of relevant cases to come before the court since 2001. And a challenge from the right, he says, could make Crooks more vulnerable to some “extremely liberal activist judge.”

The real problem, Pugh stresses, isn’t Crooks so much as Justice Butler’s appointment by Gov. Doyle, who, he hastens to add, is up for re-election next year.

Others see political motives in Crooks’ recent votes. One Madison lawyer, speaking on condition of anonymity, says that on the three big liability cases, “Crooks switched his vote with no discernible basis other than to seek support from the trial lawyers.” Crooks, of course, says he calls ’em as he sees ’em. But he admits asking lawyers who have appeared before him for their campaign support. Several of these lawyers, including Milwaukee attorney Bob Habush, who is handling the Miller Park case, have agreed to back Crooks.

Crooks says that’s not a problem: “You really don’t make decisions based on whether you like the lawyers.”

But Mike McCabe, executive director of Wisconsin Democracy Campaign, argues that the Supreme Court has become “noticeably more partisan” in recent years, as campaigns are increasingly bankrolled by partisan groups. Not only are the justices more likely to fall clearly into a conservative or liberal camp, but they are frequently compromised by their political affiliations.

For instance, three of the seven justices recused themselves from a case decided earlier this year in which former legislative leaders were seeking dismissal of felony charges. These three justices all had ties to the leaders. But so did Crooks, who did not recuse himself; one of the defendants, former Assembly Speaker Scott Jensen, ran Crooks’ last campaign and funneled thousands of dollars into his campaign coffers.

“He had a flagrant conflict of interest,” fumes McCabe. “He had no business ruling on that case.” The four justices who did vote deadlocked 2-2, preserving an appellate court ruling that the cases could move forward. Crooks voted to reverse the appellate court.

All of the justices, if asked, disclaim any political motivations, insisting they make decisions based on the law and after a respectful hearing of their colleagues’ opinions. But justices are political animals, and their ideological biases play a role in how they decide a case.

In the case of Crooks, however, the boilerplate protestations about approaching each case with an open mind might just be true. He says it’s “not all that unusual that I might go in with a tendency to favor one side, and when all is said and done I’ll go the other way.” That’s precisely what has made Crooks the court’s most powerful justice.

 


The Justices
Shirley Abrahamson,
who will turn 72 in mid-December, was born and raised in Manhattan, the daughter of Polish immigrant shopkeepers. She worked as a private-practice attorney in Madison and taught at the University of Wisconsin Law School. She has served on the Supreme Court since 1976 and became chief justice in 1996. Her current term expires in 2009, when she will be 76. She plans to seek re-election. Abrahamson is invariably described as “brilliant” – she has 14 honorary law degrees – and “charming.” In oral arguments, she asks the most questions, and usually the best, and she’s a tireless worker (“like the Energizer Bunny,” marvels one lawyer). But she’s also seen as domineering and uninterested in building a consensus. Says one observer: “She is so brilliant, it is hard for her to tolerate people who don’t think as quickly.” Abrahamson is probably the court’s smartest justice; the problem is that she too often lets others know that.

Jon Wilcox, 69, was born in Berlin, Wisconsin, and raised in Wild Rose. A former state legislator, Waushara County Circuit Court judge and private-practice attorney, he was appointed to the Supreme Court by Gov. Tommy Thompson in 1992. He was elected in 1997 in a scandalous campaign marked by a sleazy attack mailing for which the Elections Board fined him $10,000.

Wilcox has a keen legal mind, is called “as kind a man as you would ever want to meet” and is known for his personal decency. One story: Within days of his being sworn in as a justice 13 years ago, he headed home to Waushara County to help tornado victims dig out of the wreckage. Wilcox is considered the court’s most reliable conservative, but he’s seen as “absolutely predictable in his opinions” and too eager to side with powerful interests.

Ann Walsh Bradley, 55, was born in Richland Center and taught high school for a while before getting her law degree. She then worked in private practice and for 10 years as a Marathon County Circuit Court judge. Bradley was first elected to the Supreme Court in 1995. She is considered conscientious, well-prepared and incisive in her questioning. The only justice called “fun to be around,” she’s known for injecting levity into otherwise somber proceedings. But Bradley is seen as too tight with Abrahamson; last term, the two were on the same side on 96 percent of cases.

N. Patrick Crooks, 67, is a Green Bay native who was a lawyer in the Pentagon and in private practice and then served 19 years as a Brown County Circuit Court judge. He and his wife, Kristen, have six children, five of whom are lawyers.

Crooks, despite his name, is considered highly honorable, a “real gentleman and great ambassador of the court,” says one fan. More than any other justice, Crooks is hard to peg as liberal or conservative and draws fire from both camps. He was expected to step down, then made the surprise decision to run for re-election in 2006. One reason may be that he’s developed a close friendship with Justice Louis Butler. Says one Crooks acquaintance: “I think it’s the first time he’s had a friend [on the court], and he’s having fun.”

David Prosser Jr., 62, was born in Chicago and raised in Appleton. A former Outagamie County district attorney, he served for 18 years in the state Assembly, including two as speaker. Gov. Tommy Thompson appointed him to the court in 1998, and he was elected without challenge in 2001. The only justice who is unmarried and childless, Prosser is “an absolutely Shakespearean figure,” says one wag, who haunts the court’s chambers at all hours and on off-days. He is a perfectionist who takes the longest to write opinions. His legislative experience is an asset, and he’s more mindful than other justices of the real-world consequences of court decisions. But Prosser is rapped for having “microvision, not macrovision” when it comes to interpreting the law, and he’s “not greatly respected for his intellect” by colleagues.

Patience Drake Roggensack, 65, was born in Joliet, Illinois, worked as a private-practice attorney for 16 years specializing in business litigation and family law, and was twice elected to the Wisconsin Court of Appeals. She ran for the Supreme Court in 1995 and sought appointment in 1999, failing both times, then finally won election in 2003. As a candidate, Roggensack stressed being moderate and “independent-minded” but in fact almost always sides with the court’s conservatives. (She’s known for never having seen a police search and seizure she didn’t like.) One lawyer with strong Republican ties is dismissive of her legal skills: “If the court is representative of the public, the mediocre are now represented.” Another lawyer, a liberal, calls Roggensack a hard worker and “better than most Democrats think.” Maybe she can use both assessments in her next campaign.

Louis B. Butler Jr., 53, was born in Chicago and raised on its south side. He served 13 years as an assistant state public defender, 10 as a Milwaukee Municipal Court judge and two on Milwaukee County Circuit Court. He was appointed to the Supreme Court by Gov. Jim Doyle in 2004, becoming its first African-American justice. His term expires in 2008. Butler is likable and collegial but especially on criminal cases is proving as reliably liberal as Roggensack is conservative. He is the court’s only member with significant experience representing criminal defendants. He has in his chambers a Thurgood Marshall portrait, as well as a James Brown figure that gyrates and breaks into “I Feel Good” at the push of a button.

Bill Lueders is news editor of Isthmus, a Madison weekly.

 

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