Dane County judges say state Supreme Court Justice Patience Roggensack is engaging in a power grab that overrides the local judiciary and allows her to hand pick county judges that preside over high-stakes commercial and business disputes.
“Allowing big business (or any special interest groups), through the auspices of the Chief Justice, to cherry-pick judges to decide their court cases,” wrote Dane County Judge Richard Niess Thursday. “This is a bridge too far.”
In a lengthy email to state bar officials and commercial lawyers, Niess explained why the county’s 17-member judiciary opposes the Commercial Court Pilot Project. The project aims to increase efficiency by channeling cases to judges specially trained to preside over complicated business cases like antitrust, confidentiality agreements and shareholder claims.
Roggensack said a study committee surveyed all 50 states to see if they had similar programs and how effective they were. As of 2018, according to an article in Wisconsin Lawyer, 27 states had similar programs.
“This very recent development, forged without public or bar input and imposed on the Dane County judiciary over our objection, will be trumpeted as a positive for the bench, bar and citizens of Dane County and Wisconsin,” Niess wrote. “It is not.”
The pilot program has been operating for three years in Waukesha County and the seven northeastern counties that make up the state’s Eighth Judicial District. It was initiated in 2016 with approval of a majority of the Supreme Court justices, and a public hearing was held on Feb. 16, 2017.
Roggensack, asked to comment on Niess' complaints, responded with a written statement saying the decision to launch the initiative was made with careful consideration.
"Our Pilot began after more than a year of study to determine whether introducing a commercial docket into Wisconsin's judicial system would be of benefit to the people of Wisconsin," she said.
She added: "The Pilot has been helpful to the people of Wisconsin and therefore, the Court decided to expand the Pilot into other circuit courts."
The project gives Roggensack the authority to pick judges who will preside over qualifying cases, rather than the current system of assigning cases to judges on a random basis.
According to Niess, Jim Morrison of Marinette County, the state’s top chief judge, in November informed Dane County Chief Judge Bill Hanrahan that the program would be extended to Dane County by Roggensack’s order. That set off a round of negotiations, during which Hanrahan agreed to adopt the program, but only if random assignment of the cases continued.
Roggensack personally vetoed the agreement, according to Niess, and Hanrahan informed Morrison that the county would decline participation.
But on Feb. 7, Roggensack summoned Hanrahan to her office and told him “she was requiring Dane County to participate in the Pilot Project on her terms, i.e., she would hand pick the judges and, in fact, had already done so,” according to Niess.
He added: “Apparently, she requested secrecy on her judicial selection.”
In what he characterized as the “most dire consequence” of the program, Niess said the mandate to adopt the program is the “unacceptable intrusion into our judicial independence.”
“Special business interests now collaborate with our Chief Justice to hand-pick those judges they want to decide their cases,” he wrote. “The Dane County Circuit Court will now be required to implement a two-tiered system of justice; one for the privileged few and one for the rest of us.”
He also complained that the new program has been foisted on the county without the input of the county’s judges in a process he called “exclusive, secretive and at times, disingenuous.”
He said the Business Court Advisory Committee that developed the project, made up of judges, lawyers and business interests, included no lawyers or judges from Dane County.
“As far as I can see, the only Dane County member is Wisconsin Manufacturers and Commerce,” he wrote.
It wasn't clear what Niess was referring to, as none of the two judges and four attorneys listed as members of the committee appear to have direct links with WMC, the state's largest business association.
According to Roggensack, the study committee that worked on the proposal included three circuit court judges, five commercial attorneys, Roggensack's law clerk and a Supreme Court commissioner.
"No business interests or entities were members of the study committee," she said.
Niess, the presiding judge in Dane County’s civil court division, pointed out that he’s been handling complex business cases since 2004 and has presided over the division since 2006. He said he’s seen no data supporting the new system, and hasn’t seen evidence that the three-year pilot project has done anything to improve efficiency.
“Instead, we are presented with anecdotal surveys that are facially designed to skew responses to favor the commercial docket,” he said.
He maintained that the county’s civil court judges “have the capacity and skill” to handle the cases that will be targeted by the project.
“I have yet to hear a single complaint from anyone about the efficiency, processing or fairness concerning how these cases are handled by any or our judges,” he said.
Niess also objected to the legal institution chosen for training participating judges, the Antonin Scalia Law School at George Mason University, which he called “controversial.”
“Why not tap into the expertise at the UW Law School, the UW School of Business and the UW-Whitewater’s highly-rated program in accounting?" he said. “If we need to go outside the state, why not the non-partisan National Judicial College in Reno?”
Roggensack didn't address the location of the training. She said the judges take assignments to the court on a voluntary basis.
"It is extra work for them, so I wanted each judge to be able to say no thanks," she said. "The judges do receive special training, but it comes from other Wisconsin judges who have had experience in this specialty court."
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