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Koschnick: Wisconsin Supreme Court needs more conservative judges

Randy Koschnick

Wisconsin News

Wisconsin's Supreme Court has become too much of an activist court, reading more into the state's constitution and laws than the authors intended, claims Randy Koschnick.

It's that troubling trend that prompted him to challenge incumbent Shirley Abrahamson, said Koschnick Friday. The two will face off in the April 7 election.

"The role of a justice is to apply the law, not make it," said Koschnick, 49, who promises he won't legislate from the bench.

For nearly a decade, Koschnick, Oconomowoc, has served as one of four judges in Jefferson, a county of about 75,000 in southeastern Wisconsin.

Before being elected to the circuit court, he was a public defender for 14 years in La Crosse and Jefferson counties.

He was born in Milwaukee, graduated from Whitefish Bay High School and earned his bachelor's degree from UW-Stevens Point.

He earned his law degree from Hamline University School of Law and worked as an intern in the Homicide and Sexual Assault Prosecution Unit of the Hennepin (Minn.) county attorney's office.

"I think that I have a good well-rounded background," said Koschnick of his work as a trial-court judge, as a public defender and in prosecution.

He said there's a division between judges on both the Wisconsin and the U.S. Supreme Court with strict constructionists on one side and judicial activists on the other.

"They interpret the law the way it was written," said Koschnick of strict constructionists. Activists, on the other hand, see the law as "a living breathing document," he said.

Koschnick objects to the "activist" approach.

"It allows the court to usurp powers from the Legislature," he said.

In response, Abrahamson has said the labels mean nothing and she decides every case based on the facts and the law.

In support of his allegation of activism, Koschnick cites a trial over which he presided and which he calls the "Bloody Shirt Case."

In 1987 Resa Scobie Brunner was beaten to death with a baseball bat in her home. Shortly after the murder, an investigator following up on leads went to the home of Matthew Knapp.

The detective asked Knapp what he had been wearing the day before, and Knapp pointed to a pile of clothing. A bloody shirt was found in the heap.

The case languished for a decade, said Koschnick, until DNA testing technology was improved and used to identify the blood on the shirt as Brunner's.

Knapp was charged and brought to trial. He challenged the use of the shirt evidence because he hadn't been read his Miranda warning before the detective's question. Koschnick ruled that the shirt was admissible.

"I applied the law the way the law was written and with respect to precedents," said Koschnick. He said the standard was that the Miranda ruling doesn't affect the introduction of physical evidence.

Knapp appealed. The Wisconsin Supreme Court voted to reverse Koschnick, but the U.S. Supreme Court held that federal law hadn't changed and failure to provide Miranda warnings wasn't enough to exclude physical evidence.

The case, said Koschnick, was sent back to the state Supreme Court which again voted to exclude the shirt, this time relying on the Wisconsin Constitution.

That decision created broader rights for criminal defendants in Wisconsin than they would have under the U.S. Constitution or than are required by the U.S. Supreme Court, said Koschnick.

He also criticized a Wisconsin Supreme Court's ruling in Thomas v. Mallett. The case involved a Milwaukee resident who claimed to have become ill after ingesting lead-based paint. He had lived in three different houses so it was not clear which paint caused his illness.

Steven Thomas filed claims against seven paint pigment manufacturers. A majority of the Wisconsin Supreme Court voted to allow the case to proceed without having to prove which company made the paint that caused Thomas' injury.

"That was a radical departure from precedent," said Koschnick, calling it "really anti-business and unfair to businesses."

He is also uneasy about a Supreme Court decision declaring a cap on pain-and-suffering malpractice awards unconstitutional.

"That's an example of legislating from the bench," said Koschnick.

Decisions like those create uncertainty that encourages litigation and that's bad for business and the economy, he said.

"(A judge) can improve society," said Koschnick. "A conservative judge like myself can create a stable economic environment."

For more information about Koschnick's candidacy, go to his website: