Heated Wis. SC race coming to close

By Jessica M. Karmasek | Apr 5, 2011


MADISON, Wis. (Legal Newsline) - Wisconsin voters on Tuesday will decide who will win a state Supreme Court seat and, in turn, possibly the fate of Gov. Scott Walker's collective bargaining bill.

Justice David Prosser is facing Assistant Attorney General JoAnne F. Kloppenburg to keep his seat on the state's high court.

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

Though the race is nonpartisan, Prosser is part of the conservative majority on the Court. If Kloppenburg wins, it most likely would tilt the Court to the left.

The outcome also could determine the ongoing legal challenge to Walker's Budget Repair Bill. The bill has been a source of controversy for months now, eliminating nearly all collective bargaining rights for public employee union members. The Republican governor had proposed the bill in response to state budget deficits.

In Wisconsin, a law usually goes into effect when it is published by the secretary of state. However, Secretary of State Doug La Follette cannot publish the law because of the temporary restraining order put in place last month by Dane County Circuit Judge Maryann Sumi.

Sumi made her original ruling March 18. In it, she said 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.

Mordecai Lee, who teaches government at the University of Wisconsin-Milwaukee, told Bloomberg News that the state Supreme Court, including the person who fills the open "swing seat," will probably end up deciding the issue.

"This is not merely a symbolic referendum on public opinion about the collective bargaining bill; it is substantively about the collective bargaining bill," said Lee, a former state lawmaker.

Charles Franklin, a University of Wisconsin-Madison politics professor, told Bloomberg that "the stakes are high."

If Prosser wins, it will show Republicans are, indeed, in control. If he loses and Kloppenburg wins, it could be in retaliation for supporting the governor, Franklin said.

Both candidates have already attacked each other's ability to be impartial in the case. Prosser said during a debate last month that he would provide "moderate sound judgment," while Kloppenburg said she would be independent and fair.

The election, itself, has been fraught with controversy.

A tax-exempt "independent issue advocate" called the Greater Wisconsin Committee has been accused of running ads targeting Prosser. Executive Director Michelle McGrorty has denied any involvement in the election campaign. However, the committee has a page on its website entirely devoted to the race.

At the top, it says, "David Prosser's top aide says Prosser will be a complement to Scott Walker and the conservative-dominated state Legislature!"

Then it shows photos of Prosser and Walker side-by-side with the words "Prosser = Walker" written over them.

Below the photos of the two, the page says, "Tell Justice David Prosser: 'A justice on the Wisconsin Supreme Court should not be working to further the Walker agenda. We need justices on the court who will be fair and impartial.'"

Then the committee encourages visitors to get the message out by "donating today," followed by its message to Prosser:

"We want judicial independence, not a justice who supports Walker's anti-working family agenda for Wisconsin. Members of our state's highest court should have the utmost standards of independence and integrity. Greater Wisconsin Committee will continue our efforts to communicate these messages to Wisconsinites."

But it doesn't end there.

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

In this ad, the Greater Wisconsin Committee accuses Prosser of failing to aggressively investigate sex abuse allegations against a Catholic priest while working as a district attorney in the late 1970s.

"Once again, an incumbent's alleged soft treatment of a sex offender, long before he took the bench, has trumped any consideration of that justice's performance on the bench," Justice at Stake Executive Director Bert Brandenburg said in a statement last week.

"Voters will have to decide what weight to give this three-decade-old case. But just five years ago, the current tenor of high court elections would have been unimaginable in Wisconsin."

For the third time in four elections, he said, special interest money and character attacks are driving the campaign. Both Prosser and Kloppenburg accepted public financing, taking them out of the financial arms race and limiting their campaign ads.

But that hasn't stopped others from campaigning on their behalf, Brandenburg said.

The Greater Wisconsin Committee, the Wisconsin Club for Growth, and Wisconsin Manufacturers and Commerce all have flooded the airwaves, he said.

He points to a recent report released by the Brennan Center for Justice, saying $1.4 million has been spent on television ads in Wisconsin, with non-candidate special interest groups accounting for 82 percent of the total.

Brandenburg said the state has become "Ground Zero of all that is wrong with state supreme court elections in America today."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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