Prosser ousted from Wis. SC, pending likely recount

Jessica M. Karmasek Apr. 6, 2011, 4:27pm


MADISON, Wis. (Legal Newsline) - A final, unofficial vote count shows Wisconsin Assistant Attorney General JoAnne Kloppenburg with 204 more votes than incumbent state Supreme Court Justice David Prosser.

The Associated Press, with 100 percent of the state's precincts reporting, showed Kloppenburg with 740,090 votes and Prosser with 739,886 as of 4 p.m. Wednesday.

The race was too close to call early Wednesday morning.

It wasn't until about 11 a.m., with five precincts remaining, that Kloppenburg jumped ahead of Prosser by 447 votes.

Nearly 1.5 million votes were cast in the hotly contested race.

Prosser has sat on the Court since 1998. Kloppenburg has worked as a litigator and prosecutor with the state Department of Justice since 1989.

Though the race is nonpartisan, Prosser was part of the conservative majority on the Court. Kloppenburg most likely will tilt the Court to the left. Her taking the seat also could have implications for the ongoing legal challenge to Gov. Scott Walker's Budget Repair Bill.

The bill has been a source of controversy for months now, eliminating nearly all collective bargaining rights for those public employee union members. The Republican governor had proposed the bill in response to state budget deficits.

However, the law cannot go into effect because of a temporary restraining order put in place last month by Dane County Circuit Judge Maryann Sumi.

Sumi, in her original ruling March 18, will not allow Secretary of State Doug La Follette to publish the law. She says a legislative committee violated the state's Open Meetings Law when it approved a new version of the governor's budget bill on March 9.

The state Supreme Court will probably end up deciding the issue, meaning that the union-backed Kloppenburg will have a direct hand in it.

The election, itself, has been fraught with controversy and accusations -- mainly by special interest groups.

The Greater Wisconsin Committee, throughout the campaign, ran ads targeting Prosser for his conservativeness and connections to Walker. One ad by the group even accused the judge of failing to aggressively investigate sex abuse allegations against a Catholic priest while working as a district attorney in the late 1970s.

Justice at Stake, a nonpartisan national reform campaign aimed at keeping America's courts fair and impartial, called the ad an example of the state's "furious descent into negative politics in state high court elections."

This is the third time in four elections special interest money and character attacks are driving such a campaign, Justice at Stake Executive Director Bert Brandenburg said in a statement last week.

Both Prosser and Kloppenburg accepted public financing, taking them out of the financial arms race and limiting their campaign ads. But that didn't stop others, including the Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce, from flooding the airwaves on their behalf, Brandenburg said.

According to data released Tuesday by the Brennan Center for Justice, special interest groups spent more than $3.5 million on television ads in this year's Wisconsin Supreme Court election.

"The feverish special interest spending on television ads in this year's Supreme Court race -- which eclipsed the record-setting spending of 2008 -- has cemented Wisconsin's reputation as a state in which, unfortunately, costly multi-million dollar judicial campaigns and vicious mudslinging attack ads are commonplace," Adam Skaggs, counsel for the Brennan Center's Fair Courts Project, said in a statement.

Through Monday night, according to the Brennan Center report, the Greater Wisconsin Committee spent an estimated $1,363,040 to air independent television ads. It was followed by four groups seeking to re-elect Prosser: Wisconsin Manufacturers and Commerce, which spent an estimated $893,990 on air time; Citizens for a Strong America, $813,660; Wisconsin Club for Growth, $415,860; and Tea Party of Wisconsin, $53,710.

"Once again, costly spending and negative attack ads have raged out of control in Wisconsin," Charles Hall, a Justice at Stake spokesman, said in a statement.

"Regardless of who wins this election, public confidence in a fair, impartial court system will inevitably be damaged."

According to the AP, the final results could change and aren't official until they are canvassed and certified by the Government Accountability Board.

It is uncertain whether Prosser will seek a recount. The latest he can make such a request is April 20, the AP said.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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