While part of me (a large part) would prefer a different topic for this month, avoiding the controversial issues affecting the Wisconsin Supreme Court is not consistent with my role as a columnist on our legal system. No, I’m not talking about any of the cases pending before them, which should be controversial enough. Rather, of course, it is the firestorm following the investiture of Justice Janet Protasiewicz who, to the dismay of some, won an election. Not that it matters, but the election was not even close. No one claims any other result occurred (unlike another election in recent memory).

Among the controversies is the restructuring of certain court rules. But these rules are less important than the tone of messages between the justices which have been made public. By means of example only, Chief Justice Annette Ziegler texted to her fellow justices, “What you have done is contrary to the constitution, our IOP’s and SCR’s.”

In response, Justice Rebecca Dallet sent out a public statement, “On behalf of a majority of justices on the Wisconsin Supreme Court, I want to express my disappointment that the Chief Justice, rather than collegially participate in a scheduled meeting of the court today, is litigating issues normally discussed by Justices either in conference or through email, through media releases.”

Supreme Court Justice Ziegler then responded, “I am not willing to violate my oath or the constitution. You know that this invented ‘committee’ is in violation of your oath, the constitution and longstanding practice. It is illegitimate and unenforceable. I will not participate in your sham experiment.”

Again, these are only a couple of examples of the level of discourse among the justices.

In a recent news article in the Milwaukee Journal Sentinel, one legislator referred to the dispute as akin to a “food fight.” A Marquette law professor called it “a mess.”

I would call it an embarrassment to the legal system. As my grandmother used to say to each of us when my brother and I got into a fight: “You’re wrong and you’re wrong.”

Choose Civility

Civility between attorneys is required by, guess who? Why, the Supreme Court itself. Per SCR Chapter 62, “Adherence to standards of professionalism and courtesy, good manners and dignity is the responsibility of each judge …”

As I’ve said before in this column, observation of civility rules flow from the top down. Fortunately, in trial courts, this works in practice as judges and staff treat litigants with amazing patience and politeness. But it would nice if the Supreme Court followed its own rules – and it does not get any more “top” that that.

As said above, the substance of the dispute is less important than the tone. Justice Protasiewicz won the election and elections have consequences. One consequence may be that rules change. Justices may disagree about the rules, but good lawyers know how to disagree on substantive issues in a professional, civil matter. We do it all the time.

In the aforementioned article, former Justice Janine Geske noted the “harsh, terrible things [that] have been said” and suggested an independent mediator.

Since the best mediator I have ever seen is that very same Justice Geske, let me volunteer her (not that she asked). All of us involved in the legal system will wish her the best of luck. And she will need it.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via email or by calling (414) 272-5632.