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"The hallmark of a good judge," says Marquette University law professor Janine Geske, who served as a Wisconsin Supreme Court justice, "is somebody who is impartial.
"And what that means is somebody who goes into a case without any prejudgments."
So, when Wisconsin Supreme Court candidate JoAnne Kloppenburg accused incumbent Justice David Prosser of not being impartial, it amounted to more than mere campaign rhetoric.
In a videotaped interview on March 16, 2011, Kloppenburg declared that Prosser had "prejudged matters that are likely to come before the court."
She repeated the charge in a debate six days later, saying: "I, unlike my opponent, will approach cases with an open mind and without having prejudged the matters that come before the court."
The Wisconsin Code of Judicial Conduct prohibits judicial candidates from making statements that commit them regarding "cases, controversies or issues that are likely to come before the court." It would be a serious matter if Prosser has prejudged cases, such as the court challenge to Republican Gov. Scott Walker’s collective bargaining law.
(On March 24, 2011, the state appeals court panel asked the state Supreme Court to take the case. Prosser has indicated he will not recuse himself.)
So, let’s evaluate Kloppenburg’s claim.
Since the campaign has only begun to take on a high profile as the April 5 election approaches, let’s first lay some foundation.
Prosser, 68, was appointed to the Supreme Court in 1998 and was re-elected three years later to a full 10-term term. He previously spent 18 years in the state Assembly representing the Appleton area; for eight of those years he was the Republican leader.
Kloppenburg, 57, of Madison, has been an assistant state attorney general since 1989, working both as a prosecutor and a litigator. This is her first run for public office.
Kloppenburg has made contributions to Democratic candidates, but not Republicans, according to the Wisconsin Democracy Campaign database. Groups that have endorsed her most recently include the Sierra Club, the Madison police union and a union that represents public employees in Milwaukee County.
Since 2008, Prosser has been part of a 4-3 conservative majority that controls the Supreme Court. A win by Kloppenburg, who is backed by many people upset with Walker’s collective bargaining law, would create a 4-3 liberal majority.
We asked Kloppenburg campaign spokeswoman Melissa Mulliken for evidence that Prosser has prejudged matters that are likely to be brought to the high court -- more specifically, which matters. Mulliken said there were none. Kloppenburg’s allegation against Prosser, she said, was made as a broader statement.
Accusing Prosser of prejudging matters, but providing no examples … well, that takes a lot of the steam out Kloppenburg’s claim.
Her campaign did cite four statements -- three by Prosser’s campaign spokesman, Brian Nemoir, and one by Prosser himself -- as evidence to back up the accusation. We treat a statement from a spokesman as having been made by the candidate himself.
So let’s examine what Kloppenburg cited.
In a Dec. 8, 2010, news release announcing Nemoir as Prosser’s campaign spokesman, Nemoir said Prosser would be a "common-sense complement to both the new administration and Legislature."
The reference was to Walker, who had been elected governor but not yet taken office, and Republicans who would control the Senate and Assembly in January.
Prosser disavowed the statement weeks later, saying he had not seen it before it went out.
But the statement left a clear impression that, rather than being part of an independent judiciary, Prosser saw himself as in league with Republicans who controlled the executive and legislative branches of government.
After Kloppenburg blasted the "complement" comment, Nemoir responded with an e-mail the next day describing Prosser as an independent, "rule-of-law judge."
In the same statement, however, Nemoir said Prosser’s "personal ideology more closely mirrors that of the incoming administration and Legislature."
The Kloppenburg campaign cited that as evidence of prejudging.
But Kloppenburg ignored the rest of Nemoir’s quote, which was that Prosser’s "impartial approach to applying the law won't deviate" -- in other words, that he would not prejudge cases.
Nemoir said Feb. 9, 2011, that the Prosser-Kloppenburg race "is about a 4-3 common-sense conservative majority vs. a 3-4 liberal majority, and nothing more."
This statement essentially reiterates that Prosser is a conservative who could hold a swing vote on the Supreme Court. It doesn’t support Kloppenburg’s claim that Prosser has shown he would prejudge cases.
Kloppenburg’s campaign cited instances in which Prosser also described himself as a political conservative, and claimed that indicates prejudging.
At a March 22, 2011, debate, Prosser acknowledged being a political conservative. But he said that since becoming a justice, he has "tried very hard to withdraw from the political process, move to the center of the political spectrum, and view each case impartially on the facts of the law."
As with the earlier comments, Prosser calling himself a political conservative is not evidence that he would ignore facts and the law in how he votes on the Supreme Court.
Time for a verdict.
The statements cited by Kloppenburg indicate Prosser is politically conservative, has views similar to Walker and GOP leaders in the Legislature, and that his re-election would maintain a conservative majority on the Supreme Court. The fact that Prosser disavowed one statement, about his being a "complement" to Walker and other GOP leaders, indicates he had concern about signaling how he might rule on cases.
But Kloppenburg didn’t accuse Prosser of giving signals. She said he had "prejudged matters that are likely to come before the court." Yet she could provide no examples.
We rate Kloppenburg’s claim Barely True.
Editor's note: This statement was rated Barely True when it was published. On July 27, 2011, we changed the name for the rating to Mostly False.
David Prosser for Supreme Court campaign website, About page
JoAnne Kloppenburg for Supreme Court campaign website
WisconsinEye, video of Supreme Court debate, March 22, 2011
Appleton Post-Crescent, videotaped interview, March 16, 2011
Milwaukee Journal Sentinel, "Supreme Court tensions boil over," March 19, 2011
Milwaukee Journal Sentinel,"First dust-up emerges in race for Supreme Court," Dec. 9, 2010
Milwaukee Journal Sentinel, "Appeals panel: Supreme Court should take up collective bargaining law," March 24, 2011
Wisconsin Statutes, Chapter 757.02, oath of office for judges and justices
Interview, Marquette University law professor Janine Geske, March 22, 2011
Interview, JoAnne Kloppenburg campaign spokeswoman Melissa Mulliken, March 23, 2011
WTMJ-AM, David Prosser interview, March 23, 2011
Wisconsin Code of Judicial Conduct
Prosser for Supreme Court campaign, news release, Dec. 8, 2010
Associated Press, "Kloppenburg, Prosser spar over impartiality," March 22, 2011
Wisconsin Democracy Campaign, campaign contributions made by JoAnne Kloppenburg
E-mail interview, David Prosser campaign spokesman Brian Nemoir, March 22, 2011
Wisconsin Public Radio, "Supreme Court candidates try to duck partisan tinges with campaigns," March 23, 2011
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