Michael Gableman is not up for re-election until 2018 but you would never know it if you are tuned into the 2010 Wisconsin Supreme Court race.
Justice David Prosser is seeking his second full term on the high court, challenged by attorneys Jo Anne Kloppenburg, Joel Winnig and Marla Stephens. But during a judicial forum held at the Milwaukee Bar Association on Thursday most of the conversation dealt with Gableman’s campaign and the Supreme Court’s failure to come to a decision on how he should be punished for possible implied lies against his opponent Louis Butler in campaign ads.
All three challengers cited the court’s Gableman decision to be wrong. Stephens, the former chairperson of the Wisconsin Judicial Council, called Gableman a liar and the court should have had the courage to say he was wrong. Winnig, a Madison attorney who has run for Supreme Court previously, said the Gableman situation compelled him to run for Prosser’s seat.
“I saw dishonest arguments by (Gableman’s) attorneys and they were not challenged properly,” Winnig said. He added that Chief Justice Shirley Abrahmanson’s comments during the hearing that ‘it is difficult to judge someone you work with’ made him understand he had to stand up for the people and integrity of Wisconsin.
Kloppenburg, a state assistant attorney general focusing on environmental issues, at first said the case the Supreme Court got wrong was the one she lost in front of them, but added that the Gableman case has damaged the confidence the public has in the court and its integrity. She tried to stay above the fray of the debate, telling voters that she would act as the kind of justice she would want to argue before.
Prosser was on defense most of the time, explaining his position on Gableman and comments made by his campaign director, Brian Nemoir, that Prosser would “protect the conservative judicial majority and act as a common sense complement to both the new administration and Legislature.”
“I am a judicial conservative, not an activist,” Prosser said. “In fact, the Wisconsin manufacturers and Commerce found me to be the least activist justice and that is not a bad thing.”
Prosser said he understands his role on the court; not to substitute his viewpoint for the view of the Legislature that crafts laws. “I respect the other branches of government so long as they’re constitutional.”
As for Gabelman, Prosser was one of the three votes to not censure his fellow justice. He said he looked at the case against Gableman as a strict First Amendment case and considered the fact that three appellate court judges also voted to dismiss the charges.
Throughout the discussion all the candidates focused on integrity and restoring the public’s trust in the court. Kloppenburg said the labels of conservative, liberal, progressive or activist are detrimental to the discussion. She said justices shouldn’t prejudge cases and labeling fellow justices cuts off the free discussion of the rule of law.
“I will put all of (the labels) aside and focus on the law, applying the facts with an open mind,” she said. “Civility matters,” she said. “It sends a message that the court is doing its job.”
Winnig proudly calls himself an independent; a justice that will interpret the law and not always doing what is popular. He promises voters that he can work with anyone, explaining that even though he respects the Chief Justice he will not always do what she says.
Stephens describes the current court as divisive and made up of camps and loyalties. She wants to end that, through the election. “During my 10 years as chair of the Judicial Council, I worked with many different viewpoints and we all interacted respectfully,” she said. “We need to focus on our common beliefs and what we agree on. Everyone needs to be listening.”
Prosser took issue with the other candidates that he is part of the problem on the court, explaining how he at one time came to the Chief Justice’s side when her position was threatened, but then fell out of favor with her. “There is divisiveness on the court, but I am not the source of it.”
Instead, he calls for an independent outside study on how the court can improve its image and communication between members.
Finally, an audience question that is near to most journalists hearts – should access to open court records be restricted, especially on the Internet? Again, all agreed that the state’s open records law demands the public have access to court records. The problem has been when citizens go onto the Web-based Circuit Court Access Program to conduct background checks on potential employees, babysitters and boyfriends. Some of the information has been misinterpreted, leaving innocent people to suffer job loss and other indignities who have been misidentified or misinterpreted.
Prosser touted that he has been instrumental in securing stable funding for CCAP, but added if it or any court records are inaccurate, they need to be corrected.
Stephens said the open records law is clear, but the real question is should court records be on the Internet. She, along with Winnig and Kloppenburg, all suggested some change in captioning on the CCAP site to alert users if the charges were dismissed or expunged, leaving the person listed on the page as legally innocent.
The four candidates will appear on the Feb. 15 ballot. The top two voter getters will move onto the April 5, with that winner serving a ten-year term on the State Supreme Court.