UPDATED April 3, 2011 -- 5:40pm
By Zac Schultz
Madison: It's a race that could shift the balance of the Wisconsin Supreme Court for years to come. The race between Justice David Prosser and JoAnne Kloppenburg has taken a very partisan tone.
Supreme Court elections are technically non-partisan but the candidates are accusing each other of letter their politics get in the way of justice.
Challenger JoAnne Kloppenburg is trying to make this race about one thing. "I am running to restore people's confidence in the independence and impartiality of the court."
Kloppenburg is an environmental prosecutor at the Department of Justice, but she's never been a judge.
That's what Justice David Prosser wants voters to remember. "What you're looking for is someone with an independent record who is able to set aside partisan considerations and I think that I've demonstrated that over a 12 and half years."
Prosser's partisan background is a prominent issue. He served as a Republican in the legislature for nearly two decades before Tommy Thompson appointed him to the Supreme Court. He calls himself a conservative justice, but says that means he doesn't like judicial activism.
Kloppenburg says that's a red flag for voters. "They are disturbed and alarmed by the words and the conduct of my opponent and his campaign that indicate he has a partisan approach to decision-making on the court."
That's a reference to a statement sent out months ago by Prosser's campaign manager. "It used that extremely unfortunate phrase complement the new administration and legislature," says Prosser. "Obviously I didn't approve the wording, I didn't even know it was going to be sent out."
"He was targeting his message to a narrow segment of voters who would vote for him because of how he had telegraphed he would decide cases," says Kloppenburg.
Prosser says voters need to worry about Kloppenburg's political bias. "She is much farther to the left, supporting green party candidates and principals, than I am to the right. I have a record that shows me right in the center of the Wisconsin Supreme Court."
Like just about every other race on the ballot Tuesday, the Supreme Court race between JoAnne Kloppenburg and Justice David Prosser has been heavily influenced by the reaction to Governor Walker's budget repair bill.
A couple weeks into the protests at the Capitol some new signs started showing up, supporting challenger Kloppenburg. "People are more aware of the importance of having an independent and impartial supreme court."
Justice David Prosser says liberal activists are merging the protests over collective bargaining with Kloppenburg's campaign. "The issue in this campaign has become trying to put a justice on the court, trying to buy justice a seat on the court in order to decide specific litigation."
There is little doubt among the voters or the candidates that Governor Walker's budger repair bill will end up before the Wisconsin Supreme Court.
"I'm sure that aspects of it, either procedurally or substantively, will come before the Supreme Court.," says Kloppenburg.
"What some people are trying to do is turn this into a referendum on litigation that may, probably will, come before the court," says Prosser.
Kloppenburg says she's avoided the bill in case she has to rule on it, "I've intentionally kept a distance from what's in the bill." But she acknowledges it is on the minds of voters. "I do believe that the energy is in favor of a candidate like me."
Prosser feels liberals are manipulating voters who are angry with Walker. "To take out somebody's anger against one person or one policy and attribute it to someone who really is an innocent bystander, that's like a drive-by shooting. It's not fair."
Kloppenburg says voters shouldn't assume she will strike down the bill. "People should not be voting because they want a justice to decide a certain way or they want a certain outcome on the court."
But Prosser believes Kloppenburg has already ruled in her mind, and despite trying to distance himself from the Governor, he can't help but reference a Walker slogan while saying a Kloppenburg would send the wrong message. "What kind of a message does that send to the rest of the nation? Its saying Wisconsin is not open for business. It is really quite hostile to business."
UPDATED February 10, 2011 -- 5:22pm
By Zac Schultz
Madison: Justice David Prosser knows what's coming. "Suddenly, for the purposes of this campaign I'm going to be portrayed as completely unethical and a divisive force."
There are two major issues the challengers have with Justice Prosser. The first comes from 2006, when Prosser testified at the trial of former Assembly Speaker Scott Jensen.
Jensen was convicted of felony misconduct in office for using taxpayer money to run Republican campaigns. Jensen's defense was his actions were standard operating procedure for both parties and had been going on for years.
Justice Prosser was Assembly Speaker before Jensen, and was prepared to testify he did the same things -like have his staff work on the official party platform. "Basically, the interpretation of the law is that I committed a felony when I did that. I think that's absurd. I think that's absolutely absurd."
Prosser's admitted actions were beyond the statute of limitations for the case and he was not charged
The judge did not allow Prosser to testify about his prior actions and he was only a character witness in the case. However, the refusal to let Prosser testify about his actions formed the basis for Jensen's conviction being overturned.
Jensen's retrial was moved to Waukesha County and he recently pleaded out and paid a fine.
"That does not reflect well on him," says challenger Marla Stephens.
"For Justice Prosser to say that everybody was doing what he was charged for," adds challenger JoAnne Kloppenburg.
"Justice Prosser's admission that he did the same things and essentially saying that he didn't think there was anything wrong with it is something that speaks to his character, his integrity and I think it's fair game in this race," says Stephens.
The second major issue is the Supreme Court campaign of Michael Gableman in 2008.
Gableman ran a misleading ad that made it look like his opponent worked to get a defendant off, only to watch him commit another crime.
Many considered the ad to be a lie and after Gableman was elected a discipline hearing went all the way to the Supreme Court. They deadlocked 3-3, with Prosser siding with other conservatives not to discipline Gableman.
Prosser says while the ad was misleading, all the statements in it were facts.
"The fact that they didn't discipline a justice that ran the kind of campaign that I hope we never see again," says challenger Joel Winnig.
"When we communicate in advertising or otherwise, we communicate by what we say directly and by what we imply. What Justice Gableman's ad implied was a lie," says Stephens.
While Justice Prosser expects both of these issues to come up, he says they shouldn't prevent voters from electing him again. "I'm very proud of my record on the court."
One other factor that will likely impact the primary election is voter turnout. This is the only race on the ballot in many counties and with turnout expected to be high in the more liberal areas of Milwaukee and Dane County, that could impact the two candidates that make it to the general election in April.
UPDATED February 9, 2011 -- 5:23pm
By Zac Schultz
Madison: On December 1st, 2009 Governor Jim Doyle signed the Impartial Justice Act into law, providing public money for Supreme Court elections.
"There are so many strings attached to this public financing that the law is terribly flawed." Incumbent Justice David Prosser is not a fan.
The law allows candidates to forego private fundraising and instead take $100,000 in public financing for the primary, and another $350,000 for the general election.
To qualify, candidates need to bring in a thousand $5 contributions from citizens across the state.
"The public financing system is a great first step towards improving elections," says challenger JoAnne Kloppenburg. Kloppenburg and Joel Winnig are taking the public money.
So is Justice Prosser, even though he's worried the public grants are not enough to get his message out on TV and radio. "I'm not able to spend the kind of money to effectively communicate with all the people of Wisconsin."
Prosser says the law was written by Democrats who wanted to tie his hands and vote him off the court. "It is legislation designed to get me.
So why did he accept the public financing? "If I had not accepted the public financing scheme I would have been roasted alive."
Justice Prosser's worst fear was taking the public money and seeing an opponent raise big money privately.
That would be Marla Stephens, who says the law is good, but, "I was concerned that the base grants under the public financing law wouldn't provide enough money to get my message out statewide."
"That undermines the whole principal of an independent and impartial court," says Kloppenburg.
So far Stephen's strategy has backfired. She's only raised $38,000, while the others each have $100,000 in public money. She's also the only candidate without a TV ad.
But the biggest impact on the race will come from 3rd party interest groups, who can raise and spend millions without disclosing where it came from.
The first ad from the conservative WI Club For Growth is already out supporting Justice Prosser.
"If there's going to be independent expenditures, well I hope I'll be the beneficiary of some of them," says Prosser.
All four candidates are preparing to be attacked. "Whoever survives as the challenger, there's millions of dollars of special interest waiting out there and I hope it's not just to tell lies about them," says Winnig.
The law does have a mechanism that gives the public financing candidates matching funds if they are outspent. But that money could come too late. "The law has some gaps, and it doesn't address everything, including special interest issue ads," says Kloppenburg. "The way to deal with those is not to throw more money at them."
Stephens avoided public money because of the 3rd party ads. "My concern was the amount of independent expenditure money that was going to be poured into the race."
"I don't think the people of Wisconsin want to see candidates whose hands are tied and cannot communicate with them and cannot defend themselves," says Prosser.
This could end up being the first and last Supreme Court election with public financing. Republicans in control of the legislature opposed the bill when it was passed and have talked about repealing it.
Posted February 8, 2011 -- 5:16pm
By Zac Schultz
Madison: There are four candidates on the ballot for February's primary, but the race for the Wisconsin Supreme Court begins with the incumbent, Justice David Prosser.
Prosser came to the bench in 1998, when Governor Tommy Thompson appointed him to fill a vacancy. Prosser was elected to the legislature as a Republican from 1978 to 1996, serving as Assembly Speaker in the mid-90's.
"It really was an awesome responsibility to become a Justice of the Supreme Court without having a lot of experience as a judge," says Prosser.
Prosser was elected to a 10-year term on the court in 2001 and says he should be re-elected due to his experience. "I'm very proud of my record on the court."
Prosser's three challengers says that record is why he should be replaced.
"I have specific concerns about Justice Prosser," says Marla Stephens, who works in the State Public Defender's Office as the Appellate Division Director. "I am concerned that the partisanship, the ethics complaints, the influence of special interest groups and the campaigns themselves are causing the public to have some concern or to lose faith in the courts integrity and impartiality."
"I'm running because people have asked me to run," says JoAnne Kloppenburg, a Prosecutor with the Department of Justice, focusing on suing polluters who violate environmental law. "Justice Prosser has not helped the court move forward in a direction of independence and impartiality."
"I knew that the Supreme Court needed new leadership," says Joel Winnig, who has had his own private practice for three decades. "It's actually disgraceful how the court is still operating."
Winnig calls himself the working man's lawyer and says he is a clear alternative to Justice Prosser. "If people want to vote what Justice Prosser has done and the kind of Supreme Court we have now, that's their choice. If they want change and new leadership the Winnig difference is the choice that I'm offering."
The three challengers claim they have no prescribed judicial philosophy and say they will bring an open mind to each case.
Justice Prosser has no trouble identifying himself as a judicial conservative, which he says is different than being a political conservative. "Being a judicial conservative is someone who does not want the court to be activist."
That conservatism is why Prosser has three opponents.
"It tells me that he is a very partisan person," says Stephens.
But Prosser criticizes his challengers for not being more honest with the voters. "My opponents are all quite ideological in their nature. They really are not interested in partiality so much as they are interested in particular results."