Frederica Freyberg:

The Wisconsin Supreme Court is in the news again. When the state certified election results Wednesday, the state’s majority swiftly elected a new Chief Justice, a move the former Chief Justice rejects. Controversy rolls on in Wisconsin’s high court which is already in the midst of the uber controversy known as John Doe. Our next guest candidly calls the Wisconsin Supreme Court corrupt. Howard Schweber is a law professor at UW-Madison. He joins us now. Thanks for doing so Howard.

Howard Schweber:

My pleasure.

Frederica Freyberg:

In terms of what we called an uber controversy, the John Doe law suits before the court, two of the suits involve targets of secret investigation looking into whether Scott Walker’s recall campaign illegally coordinated with independent groups trying to stop the investigation so again now being heard before the court. What is your legal opinion of whether the court should even be hearing these cases?

Howard Schweber:

I think actually, that’s almost a more important question than whether the investigation itself has any merit. We have no idea. We have no way of knowing whether there’s any crime to be discovered here at all or whether it is entirely baseless. There’s a tremendous appearance at least of a conflict of interest on the fact of these Supreme Court Justices hearing the case. Wisconsin has the loosest rules in the country about when a judge is allowed to hear a case. In Wisconsin judges are allowed to sit on cases that involve parties with major campaign contributors. In this case that’s Wisconsin Manufactures and Commerce. What’s odd about this situation is that those rules were written by Wisconsin Manufacturers and Commerce and approved in 2010 on a 4-3 partisan vote by justices who had been supported by Wisconsin Manufacturers and Commerce, which is now a party in the criminal investigation being heard by the same court under those same rules. At that point the fact that the investigation happens to involve allegations of illegal campaign contributions is merely ironic.

Frederica Freyberg:

And so I guess this would be why you called this high court corrupt?

Howard Schweber:

Well, I was using the term not in a criminal sense. But there’s a thing called legal corruption. That is, we’re not talking about bribes in garages in the middle of the night. We’re talking about an evaluation of an institution and whether the rules that are in place genuinely and effectively protect against both the fact and appearance of the purchase of influence. A study was done just this past year by the Safra Center for Ethics at Harvard University ranking all 50 states’ judicial systems in terms of this level of legal corruption. And in that sense of the word, Wisconsin was found to be one of the ten most corrupt systems in the country.

Frederica Freyberg:

This is well-known outside of Wisconsin?

Howard Schweber:

Absolutely. And a matter of considerable attention. And it’s striking that this is not a partisan or limited opinion. Just this week, Chief Justice Roberts who is no friend to campaign finance rules concurred in an opinion saying that where judges are concerned it is much more important than in the case of legislators to make sure there is no possibility of purchasing favoritism or the appearance of purchasing favoritism. It is very hard to see how justices appearing on a case or ruling on a case based on rules written by one of the parties that allow them to rule on a case involving one of the parties who have contributed to their campaigns can possibly avoid at least the appearance of favoritism let alone the underlying reality.

Frederica Freyberg:

Meanwhile, in the John Doe, Scott Walker has now publicly called that investigation a political witch hunt which than prompted the Doe prosecutor and judge to call his words potentially defamatory. How unusual is all of that?

Howard Schweber:

It’s extraordinarily unusual. These are a couple of very pissed off prosecutors. I should point out, one of them is a Democrat and one of them is a Republican. Governor Walker is not entirely wrong. I am not speaking of this John Doe investigation. John Doe investigations are intrinsically very out of step with the notions of how the American justice system ought to work. This is a nasty remnant of 19th century law which prosecutors are allowed to pursue named individuals and find out whether there’s a basis to charge them with a crime. Usually we want prosecutors to wait for a crime to be committed and then find out who did it. This is about going after people to see if they can be characterized as criminals. On the other hand the 2010 investigation yielded six criminal convictions so there was something there at that time. It is inaccurate to describe this as partisan since both Republicans and Democrats were involved both as judges approving the investigation and as prosecutors. The prosecutor who made that comment is a Democrat. The Republican prosecutor said the Governor is saying things that are not true. All involved say the Governor is lying. Governor Walker was giving a campaign comment. He may not have meant his words to be taken that quite literally.

Frederica Freyberg:

Meanwhile, people are now calling for this John Doe to be public because it’s supposed to be shrouded in secrecy?

Howard Schweber:

The secrecy is yet another very bothersome dimension. Now, there’s some secrecy always involved in criminal investigations and grand jury proceedings for that matter. In this case it gets very complicated. One of the reasons much of the evidence is not known is that Governor Walker will not agree to have it be released. In fact to a certain extent he has control over what is known. But it is also true that the investigation by its nature, by its rules is shrouded in secrecy. We don’t know who is investigated, we don’t know what the potential charges are. That is genuinely discomforting and should be.

Frederica Freyberg:

Now lastly, and with less than a minute left as to the Chief justice elections this week who is in charge? Justice Abrahamson says she should still be and Justice Roggensack says she is.

Howard Schweber:

I think by any reasonable interpretation, Justice Roggensack is the Chief Justice. Justice Abrahamson has filed a legal challenge. I don’t think there’s a great deal of strength in that challenge. But regardless, unless and until it is ruled upon, Justice Roggensack is our Chief Justice and I believe likely to remain so going forward.

Frederica Freyberg:

All right, Howard Schweber thank you very much for getting so much in.

Howard Schweber:

Thank you.