Supreme playbook

(First published in March 15, 2018 issue of City Pages)

High court contender Michael Screnock says he’s not a partisan, judicial activist but his rival Rebecca Dallet is. Really?

In his campaign for Wisconsin Supreme Court, Michael Screnock is following a playbook used by every other successful conservative candidate since 2007, when the races became flush with money from outside special interests. The steps:

Pledge to apply the law, not personal beliefs. Insist opponent will not. Deny political or ideological inclinations of any sort. Rely on outside groups to pump money into the race, mostly on ads portraying opponents as criminal-coddling threats to public safety. Get elected.

Screnock, a circuit court judge in Sauk County, is running against Rebecca Dallet, a circuit court judge in Milwaukee County. A win by Screnock on April 3 would preserve the court’s 5-2 domination by conservatives. A Dallet win would move the balance to 4-3.

The seat is being vacated by conservative Justice Michael Gableman, who in 2008 won a 10-year term with the help of a campaign-funded ad so dishonest that the Wisconsin Judicial Commission filed ethics charges against him. The ad falsely suggested that incumbent Justice Louis Butler, had, as a defense attorney, helped spring a child molester who molested again. Gableman was spared discipline when his conservative colleagues caused a court deadlock.

In the seven state Supreme Court contests since 2007, outside conservative groups have spent about $12 million, compared to $5.7 million by groups backing liberals, according to an analysis using figures compiled by the Wisconsin Democracy Campaign. Most of this money has gone for “issue ads” that just barely stop short of telling people how to vote.

Prior to the Feb. 20 primary, the big-business lobby Wisconsin Manufacturers & Commerce (WMC) spent $600,000 on Screnock’s behalf, according to WisPolitics.com. The Republican Party of Wisconsin gave him at least $142,000 worth of campaign assistance. Millions more are expected to pour into the race before April 3. A Democratic group headed by former U.S. Attorney General Eric Holder is backing Dallet with $140,000 in digital ads; she will likely get outside support from other quarters.

The job of state Supreme Court justice is officially nonpartisan, although that’s hard to tell. Screnock’s main theme has been to brand Dallet as “a liberal activist judge” while claiming his own campaign is free of partisan, political or ideological intent. This is an especially audacious claim.

Prior to his appointment to the bench in 2015 by Republican Gov. Scott Walker, Screnock helped defend the state’s Act 10 law hobbling public employee unions, and the redrawing of voter boundaries to the GOP’s advantage. As a young man, he was twice arrested for blocking access to a Milwaukee abortion clinic, actions he recently called “not something I’ve ever regretted.”

Screnock is backed by three of the court’s current conservatives, including Gableman, as well as by the NRA and anti-abortion groups. His campaign is staffed by longtime Republican operatives including Sean Lansing and Luke Hilgemann, both formerly with the Koch brothers’ Americans for Prosperity; and Nathan Conrad, formerly a spokesman for the state GOP.

Dallet, in interviews, has called Screnock an “extremist” who is “bought and paid for” by the political groups now backing his campaign. “We’ve had a court that’s done the bidding of special interest money and political allies,” Dallet says. “We have the opportunity to change that and start restoring confidence in a court that can uphold the values of Wisconsinites.”

I made multiple attempts to interview Screnock, both before the primary or after. Screnock and his campaign did not respond, and Screnock even ignored my small number of questions put to him in writing.

Screnock and his backers have other ideas about what he needs to do to win, one that has worked time and again.

Dallet has 23 years of experience as a lawyer, including 11 years as a prosecutor with the Milwaukee County District Attorney’s Office. She has been a judge for a decade, elected as a Milwaukee County circuit court judge in 2008, and reelected in 2014. She has presided over more than 10,000 cases.

Screnock is relatively new to the legal profession and to the bench, having served less than three years. He worked for 12 years in local governments before getting his law degree in 2006 and landing a job the next year at Michael Best & Friedrich, a high-powered law firm that often works with state Republicans. In 2015, Walker appointed Screnock to the Sauk County Circuit Court.

In the low-turnout primary, which eliminated Madison attorney Tim Burns, the top vote getter was Screnock, with 46%. The general election will be a different ballgame, with perhaps six times as many voters. A Marquette poll conducted shortly after the primary found that three-quarters of registered voters did not know enough about Dallet and Screnock to decide.

Dallet believes part of the Supreme Court’s job “is to be a check on our other branches when they violate the law.”

Screnock has said: “The court’s only job is to interpret and apply the laws, not to rewrite them, not to veto policy choices made by the governor, not to include new stuff that never existed in our laws.”

During a March 2 candidate debate, Screnock said Dallet had on two occasions explicitly vowed to pursue policy changes to advance “her litany of liberal political issues.” Dallet said she was referring to policies set by the court as part of its function.

“No it’s not,” Screnock shot back. “You were talking about policies to protect your values, which are workers’ rights, women’s rights, clean air, clean water, full funding for schools. Those are the things you’re talking about in those speeches, and then you say you’re going to advocate for policy change. You’re right, the Supreme Court does have a policy-making function but that is not what you were talking about.”

A review of Dallet’s remarks on these two occasions does not fully back up either interpretation. Dallet did say, in a Jan. 17 campaign appearance, that “experience matters to get the policies we want to move forward and to protect our rights.” And during a Feb. 8 radio program, she cited a need to “advocate for the policies that need to be changed.” Both comments were made after she had spoken about fundamental rights as well as internal court policies, like when justices must recuse themselves from a case.

This ambiguity did not stop Screnock from telling Dallet what she meant by her own words. Moreover, under our system of justice, workers and women do have rights, and one role of the judiciary is to protect them.

Another revealing moment came when debate moderator Mike Gousha reviewed Screnock’s ties to WMC and state Republicans and asked, “Why would a reasonable person not conclude, as your opponent has charged, that Michael Screnock is going to be a rubber stamp for the Republican administration and for conservative causes?”

Screnock, in reply, defended WMC’s decision to become heavily involved in state Supreme Court elections because “the last time we had a liberal activist court majority, which was in the mid-2000s, we saw in rapid-fire succession a number of activist decisions… based on the political aims of the individual justices and not based on the law.”

Screnock is referring to three liability cases decided in 2005, that launched WMC on its successful campaign to elect its preferred candidates to the state Supreme Court. These were the subject of an article I wrote in late 2005.

In one case, the court overturned the basis on which an appellate court had axed a $94 million judgment against the operators of a crane that crashed during the construction of Miller Park, killing three workers. In the second case, the court struck down the state’s caps on noneconomic damages for medical malpractice, saying it found “no rational basis” for them.

In the third and most controversial case, the court ruled that a young man in Milwaukee who suffered mental defects from eating lead paint chips as a toddler could seek damages, even though it wasn’t clear which of several companies made the paint.

WMC responded by warning of catastrophic job losses as personal injury lawyers take advantage of the new legal terrain created by these rulings. Its spokesman, Jim Pugh, told me that Wisconsin would soon be “flooded with frivolous lawsuits by trial lawyers seeking to get rich and killing jobs in the process.”

No such thing occurred of course. The rulings, each limited in scope and potential application, had a negligible impact. Conservative Justice Patience Roggensack, now chief justice, had sided with the majority in the Miller Park case. In the lead-paint case, which was firmly grounded in the court’s own precedent, the plaintiff ended up losing in court.

So why did WMC go into conniption fits over these cases? Former Justice Bill Bablitch told me in 2005, “This is an opportunity for those interests to froth up their constituents, raise some money, and perhaps elect some candidates favorable to their positions.”

The “Issue Areas of Concern” listed on WMC’s website include civil justice and legal reform, energy and telecommunications, the environment (more precisely, fighting an “often hostile regulatory environment”), mining, taxes and spending, and transportation.

Crime and public safety are not mentioned. Yet in the ads it runs to elect conservatives, these topics reign supreme. WMC’s pre-primary ad for Screnock shows menacing footsteps outside a house as a woman reads to a child in bed. The voice-over touts Screnock’s “record of throwing the book at murderers, abusers and predators, as all judges should.” The ad’s fine print cites three cases in which Screnock handed down significant (though not maximum) sentences, including 15 years in prison plus five years extended supervision for 2nd degree sexual assault of a child.

Not mentioned was a case in October 2016 in which Screnock sentenced Aldo Eder Ruiz Velazquez to just eight months in jail and two years probation, per a plea agreement, for fourth-degree sexual assault. The criminal complaint alleged that Velazquez, 24, plied two teenage girls with alcohol and had sex with one of them, age 16, as she repeatedly told him “No.” Her friend confirmed hearing this. According to a Baraboo News Republic article on the case, “A number of traffic citations against Velazquez also were dismissed as part of the deal.”

Screnock also sentenced Axel R. Conrad to five years on probation and no jail time for “repeated sexual assault of [a] child.” This was a Class C felony, punishable by up to 40 years in prison.

These two cases are featured in Dallet’s first post-primary commercial, which imitates the style of soft-on-crime attack ads right down to the scary music.

When I asked about his sentencing in these and other cases, Screnock did not respond.

Meanwhile, a website created as an in-kind contribution to Screnock by the Republican Party of Wisconsin blasts Dallet for giving a man convicted of attempted sexual assault of a child a two-year sentence “instead of the maximum 20 years.” Not mentioned on the site but noted in the linked article is that this was the punishment the prosecution recommended.

A 2015 analysis of 140 state circuit court judges by USA Today Network-Wisconsin identified Dallet as one of the three harshest sentencers. She was given the rating “extremely harsh.” (Screnock, then a recent arrival to the robe, was not included in this analysis.) In fact, on several occasions, defendants have challenged Dallet’s sentences as “unduly harsh,” only to have appellate courts uphold the rulings.

Asked whether this “undercuts the claims made by the state Republican Party that she is soft on crime,” Screnock did not respond.

Interestingly, both Screnock and Dallet define judicial activism in roughly the same way: going beyond what is in the law and facts of a case to reach a result based on political aims.

Screnock says this is what Dallet is itching to do. But when asked for examples of times when Dallet “has acted like an activist in her role as a judge,” he had no response.

Dallet argues that the court’s conservative majority has engaged in wholesale judicial activism. In its 2014 ruling upholding Act 10, for instance, she says the majority analyzed the case under the wrong legal construct to achieve a desired result. (Screnock, during the March 2 debate, disputed this.)

And Dallet faults the court’s 5-2 decision in February to let the state deny records to a labor union based on unsubstantiated claims that it might use them to “harass” state employees. “The court read into the record facts that weren’t part of the record to reach a decision that they wanted to reach,” she says. The case, along with a 2016 ruling involving the state Democratic Party, chips away at one of the fundamentals underlying Wisconsin’s open records law: that denials should not be based on the identity or presumed intent of the requester.

Dallet has also sharply criticized the court’s 2015 ruling to shut down the John Doe probe into alleged coordination between Walker’s campaign and outside groups. At one point, such behavior was clearly understood to be illegal. In 2001, then-Supreme Court Justice Jon Wilcox and his campaign were fined $60,000 for coordinating with an outside group on a mailing.

But subsequent court rulings made this area less black-and-white. Walker saw it as gray and plunged in, instructing backers to give to an outside group so it could run ads on his behalf in his 2012 recall election. The John Doe probe found proof that this occurred, but the state Supreme Court’s conservative majority decided there was nothing illegal about it.

“No other state court has done this,” says Jay Heck, longtime executive director of Common Cause in Wisconsin, a nonpartisan watchdog group. “Not even the U.S. Supreme Court has done this. Coordination in federal elections is still illegal.”

The John Doe ruling, for which Screnock has expressed agreement, is noteworthy for another reason: Gableman and another conservative justice took part in it despite being asked to recuse themselves. The case involved WMC, which spent millions on the two justices’ behalf.

Wisconsin’s current recusal standard is subjective: A judge who decides he or she can remain impartial can stay on a case. In 2010, the state Supreme Court amended its code to say that a campaign endorsement or contribution can never in itself require judicial recusal. This rule was actually written by WMC and the Wisconsin Realtors Association. Dallet supports a change in court policy to require recusal in cases involving major donors; Screnock does not.

Asked about alleged judicial activism by conservatives, Screnock did not respond.

This is the first state Supreme Court election in which recusal has been a major issue, says Heck of Common Cause. He also thinks “voters are more tuned into this election because of what has happened nationally.”

Dallet has sought to capitalize on President Trump’s historic unpopularity, running an ad showing grainy images of the president as a narrator intones, “He’s attacked our civil rights and our values.” And she’s highlighting the support that Screnock is receiving from the NRA.

The group apprised its Wisconsin members that Screnock had “vowed to protect your firearm freedom.” But an email from Screnock to the NRA, which he released, did not include any such promise. Asked whether he had “other communications with the group that provided the basis for its statement,” Screnock did not respond.

Screnock has blown off candidate questions from the League of Women Voters. He avoided some joint appearances prior to the primary and backed out of a March 13 debate before the Dane County Bar Association, after originally agreeing to take part. The group’s treasurer, David Friedman, says that “to the best of the DCBA’s knowledge,” no other major candidate for state Supreme Court has ever failed to appear at its candidate forum.

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Michael Screnock

Vital stats: Age 48, married, three children, lives in Reedsburg. Worked as a city administrator and finance director in Reedsburg, Washburn and Ashland, before getting law degree; hired at Michael Best & Friedrich in 2007. Appointed to Sauk County Circuit Court by Gov. Scott Walker in 2015; elected without opposition in 2016.

Key endorsements: Justices Michael Gableman, Rebecca Bradley and Dan Kelly; former Justices David Prosser and Jon Wilcox; more than 40 circuit court judges and a majority of the state’s county sheriffs.

Rebecca Dallet

Vital stats: Age 48, married, three children, lives in Whitefish Bay. Twenty three years legal experience, including 11 years as assistant Milwaukee district attorney and special assistant U.S. attorney. Former adjunct professor of law at Marquette University. Elected to Milwaukee County Circuit Court in 2008.

Key endorsements: Justices Shirley Abrahamson and Ann Walsh Bradley; former Justice Louis Butler; U.S. Sen. Tammy Baldwin, Dane County Sheriff Dave Mahoney and dozens of other elected officials; more than 200 circuit court judges; unions including Wisconsin AFL-CIO.

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Screnock’s attorney work in environmental regulation

Besides his work on behalf of the Act 10 labor law and partisan redistricting, Supreme Court candidate Michael Screnock handled a range of environmental cases in his role as a corporate lawyer from 2007 to 2015, before Gov. Scott Walker made him a judge. As an advocate for companies engaged in frac sand mining and other environmentally damaging activities, he aggressively pushed back against the state’s regulatory apparatus.

“Michael Screnock has represented some of the state’s worst environmental actors in bright-line cases that pit narrow special interests against clean, safe water for Wisconsin families,” says Ryan Billingham, spokesman for the Wisconsin League of Conservation Voters. “His potential presence on the state’s highest court would be another grim piece of architecture in the Walker administration’s anti-environment agenda. It represents a serious threat to Wisconsin’s water, air, public health.”

As an attorney for Kinnard Farms Inc., an industrial-sized dairy operation in Kewaunee County, Screnock fought an effort by local residents represented by Midwest Environmental Advocates to add monitoring requirements to the farm’s manure management plan, beyond what Walker’s Department of Natural Resources required. In 2014, an administrative law judge ruled that Kinnard needed to install monitoring wells, calling the area’s widespread groundwater contamination a “massive regulatory failure.” A Dane County judge later upheld this ruling but the company appealed, and the case is still playing out.

Screnock also represented New Chester Dairy, a massive farm in Adams County that wanted to add two new high-capacity wells. DNR staff raised concerns about a significant negative impact on a nearby lake; New Chester said its own modeling showed no cause for alarm. The DNR approved the wells but directed the company to install monitoring equipment to check whether its impact predictions were correct.

New Chester sued to block the monitoring requirement, saying the DNR had no authority to impose it. The environmental group Clean Wisconsin rushed to the DNR’s defense. In his 2014 ruling, an administrative judge said he was essentially being asked to ignore established precedent, which would be “the height of administrative arrogance.” He upheld the monitoring requirement, but his decision was later overturned. New Chester won.

Scott Manley, chief lobbyist for Wisconsin Manufacturers and Commerce, hailed this outcome as an endorsement of the Legislature’s efforts to roll back burdensome regulations, Wisconsin Public Radio reported. “The days of [government agencies] regulating by fiat are over,” Manley said.

While Screnock did not respond to a question about his representation of polluters, he has argued elsewhere that his past work as a lawyer is irrelevant. “It is true that as an attorney in private practice, I advocated vigorously for the interest of our clients,” he said during a candidate debate. “That’s what a lawyer does.” But the moment he became a judge, Screnock said, “everything changed.” —B.L.