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Wisconsin Fight Goes to Court
And Walker’s big win could ride on a single judicial election.

By Robert Costa


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As the dust settles in Madison, Wisconsin Republicans face a troubling coda: Gov. Scott Walker’s budget-repair bill is being tripped up in the courts. Union heavies smell blood. And the unruly parade of lefty activists and hulking Teamsters that occupied the state capitol for weeks is back for a bruising final round.

On paper, at issue is whether senate Republicans violated the state’s open-meeting laws. In mid-March, after a three-week stalemate, GOP lawmakers hustled Walker’s bill to the floor. The senate clerk approved the maneuver. But 14 Democratic state senators, on the lam in Illinois, howled in absentia. So did their comrades in Dane County government, who quickly filed suit. A sympathetic county judge put the brakes on implementation.

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The Walker administration, appalled, immediately urged a state appeals court to strike down the circuit court’s ruling. But the appellate panel threw up its hands last week and kicked the bill to the state supreme court. Meanwhile, the nonpartisan state legislative bureau, following protocol, published the bill on Friday, sending Democrats into a tizzy.

With fresh legal questions being raised daily, the bill’s status is as murky as a Charlie Sheen tweet. But the tedious tangle over quorum rules and publication guidelines is merely a proxy for enraged progressives. The governor has beaten them at the polls and in the legislature. To topple his signature law, they need a black-robed coup.

Pressure is mounting on the seven-member high court to weigh in. If they do, the bill risks being overturned. For the moment, judicial conservatives hold a 4–3 edge. But that could flip come April 5, when incumbent justice David Prosser, a former GOP legislator, battles JoAnne Kloppenburg, an environmental lawyer and veteran state attorney, for a ten-year term.

The Prosser–Kloppenburg bout has political implications beyond the fate of Walker’s bill. Numerous GOP state senators are facing recalls, and Walker himself could face one next year. If Prosser falls, it will be a heavy blow to Republicans, especially for the backbenchers who stood with Walker, many of whom had hoped to emerge from the fiery budget debate with their careers intact. State lawmakers will also soon redraw legislative districts based upon updated Census data. Republicans control both chambers and the governor’s office, making liberal challenges to reapportionment decisions all the more likely.

“This is for all the marbles,” says Charlie Sykes, a prominent conservative talk-radio host in Milwaukee. “Scott Walker could survive losing the state senate. But it would be devastating if he were to lose in the supreme court. If Prosser loses, almost everything that Walker enacted could be overturned.” The high court, he worries, has a long history of activism, especially when liberals hold the majority.

Prosser, a gruff 68-year-old who has sat on the bench since 1998, has been blindsided by the national spotlight. In February, he coasted in a nonpartisan, multicandidate primary with 55 percent of the vote, more than double that of Kloppenburg, who finished second. Prosser saw a relatively smooth path to victory, especially against a little-known, left-leaning lawyer in a sleepy, springtime skirmish. Besides, Walker, in his second month at the reins, was popular with voters, as were conservatives, who swept the state’s November elections.

Then Madison erupted. Within hours of the primary, Walker began to unveil his budget agenda. The governor and statehouse Republicans went to the mats against the public-sector unions on collective bargaining, not yielding in their stand against unchecked labor power. Democrats, depressed after their poor 2010 showing, suddenly began to show alarming signs of life. Swarms of protesters, huddled like carolers, screamed outside of Walker’s office deep into the night; dreadlocked undergraduates gleefully papered the capitol’s marble halls with anti-Walker messages scrawled onto cardboard posters.

Amidst the melee, the supreme-court race drew scant notice during the first week of rallies, with only a few signs, mostly toted by graybeard professors, urging the throngs to “Vote Kloppenburg.” After the bill was signed by Walker, however, union brass and local Democrat friendlies, bitter and seeking a cause du jour, immediately jumped into the fray.

The buzz did not end at the Dane County border. Voices from the liberal blogosphere, at Firedoglake and the Daily Kos, sat up and started to alert their audiences. Their brethren in Wisconsin began to organize on the ground. Prosser, a tad surprised at the sudden interest, dug in and prepared for the onslaught. “At this point, I do not think that we have the choice as to whether our race is nationalized,” says Brian Nemoir, Prosser’s campaign manager.

Yet Prosser’s ability to respond to the rising interest has been hamstrung. He, along with Kloppenburg, is the recipient of public funds — $300,000 for the general election, to be exact — and both have pledged not to spend a dime more. “Looking back, that was one decision they should not have done,” says one state GOP strategist. “Their ability to respond to charges, and build up a stronger internal organization, has been severely limited.”

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COMMENTS   27

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   03/28/11 11:04

If, as you suggest by the Charlie Sheen tweet reference, the legal status of the bill is murky, perhaps what the left needs in order to win is not a blacked-robed coup, but an impartial application the law.

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   03/28/11 11:12

A prime example of why electing judges is a horrible idea. How can judges be expected to be apolitical if they face an election?

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   03/28/11 11:43

Lifetime appointments are also problematic. In California, a three justice club that ignored public referenda on the death penalty was defeated. That, of course, was back in the days when California was not insane. The chief justice, Rose Bird, had been appointed by Jerry Brown when he was governor before. She also had never been a judge and was a leftist activist like Kloppenburg.

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Ann Schleeter
   03/28/11 11:54

What no one has mentioned is the fact that the judge, Sumi, has leftist ties herself, she and her husband have given money to Kloppenburg's election campaign, and her husband has ties to several unions. Why is no one talking about this? Sumi should have recused herself.

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   03/28/11 12:08

I'm torn. All of us - c'mon, admit it - are beside ourselves when a black-robed kook enacts by judicial fiat what had no change of making it into law via the normal legislative process. And everyone likewise knows that this kabuki dance about an "independent judiciary" is a big steaming pantload, code for, "Let's get a judge to negate legislation I don't like." The judges know it, the politicians know it, and we as the activists know it. "Judicial independence" is simply liberalism to check the dimwitted masses who can't see the merit of progressive laws.

This was true when Dems tarred Bork as someone who would bring back segregation, when they pretended to give a flip about "s**ual harassment" in the Thomas hearings, and when they pretended the judicial filibuster under Bush some essential safeguard for democracy. It was ALL BULL****."

In that sense, I find it weirdly refreshing that Kloppenburg and her goons have dropped the pretense altogether.

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Michael R. Brown
   03/28/11 13:37

It's very unfortunate that Ms. Jo Ann Kloppenburg has so little control of her campaign that she refuses to remove a vile ad repudiated by the victim as distorted and an exaggeration. Her excuse is that third parties have a right to say what they want and she cannot stop them. Only in the Peoples Republic of Madison in Dane County. To coin a phrase. Shame!

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   03/28/11 13:55

Take control of the courts and you do not have to worry about majorities!

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Truesoldier
   03/28/11 14:32

All I have to say is Prosser needs to win big or else there will be a recount and we know who controls the vote counting....the unions.

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John Walker
   03/28/11 15:51

The precursor to Walker's reform bill was the National Supervisory Personnel System NSPS. This was a DoD Civil service reform initiated during the Clinton administration. NSPS eliminated tenure through time in service and cancelled automatic two year step pay increases. NSPS made it easier at the local level to award superior performance and terminate employment because of poor performance. NSPS provided adequate means for the employeee to appeal adverse decisions. NSPS had been partially implemented nationally when it was legally challenged by union backed Wage Grade employees. They won the law suite and NSPS was dismantled about a year ago. When Walker's Bill was signed I figured a legal challege was inevitable.

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   03/28/11 16:43

We witnessed a similar endless personal attack on a conservative candidate in the last election. I want to warn EVERYONE in Wisconsin that the bag of dirty tricks the left will unload is bottomless!!!!!

One word of advice to Republicans is to have representatives in EVERY precinct observing the entire election process from before opening until after closing!!!! Do NOT let your eyes wander!

Volunteers should be going door to door until the day before the election. Hand out information to customers leaving local grocery stores. Just don't let the FALSE accusations get you down! I know it is hard to ignore, but keep the faith.

You must be prepared for FILTH the likes you've never seen before! The actions and words of the Madison demonstrators were just appetizers for the main course that will be served 24/7 until election day!

And last of all, WATCH THE COUNTING!!!! We all know about the 'found boxes' of ballots that brought Franken to office.

Leftists do NOT take kindly to challenges, especially from those who are more qualified for the position. They will NOT fight clean!!!! That you can bet your bottom dollar on!

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   03/28/11 16:51

As a legal matter, I would like to see someone make a reasoned arguement that a meeting with the press present way was not and open meeting!

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   03/28/11 18:30

This article was high on rhetoric but a little short on the facts. You need to read the Wisconsin constitution first. If you do, you will find that the governor's actions on Friday will likely be found unconstitutional. First,
Article VII, §21 requires full text publication of all general laws. Second, you can publish laws somewhere other than a newspaper IF under §985.04 the legislature has designated an alternative. The Wisconsin State Journal is the official newspaper so that is where laws have to be published until
they designate another official publication venue (which they haven't). Third, the Sec of State has the job under 14.38(10)(c) for publishing laws in the official state newspaper. Since it is the designated responsibility of the
Secretary of State to publish laws in the official state newspaper then
what happened Friday is clearly unconstitutional. Whatever you think
about the bill, we should all agree that the procedures followed should be legal and constitutional...and they clearly were not.

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   03/28/11 19:03

There's no legal basis for stopping the Wisconsin bill, this is pure and simple b.s. engineered by the unions and I hope Gov. Walker has the fortitude to appeal any negative decisions all the way up to the 9 supremes. Then he should rearrange the composition of the state's courts!

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teve
   03/28/11 19:23

this is the exact plot of a grisham novel the appeal

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mary bridget
   03/28/11 19:30

Unfortunately, Barry has made the Constitution irrelevant for now. NObama 2012

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Jack Straw
   03/28/11 21:04

The best part of this page was the ad that said, "Want a 35% raise? Have an affair with Senator Randy Hopper. Find out how." But now it's gone. All that's left is a bunch of panicked and lying
Tea Party nutzos.

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Tlaloc
   03/28/11 21:53

"Meanwhile, the nonpartisan state legislative bureau, following protocol, published the bill on Friday, sending Democrats into a tizzy. "

Actually what sent them into a tizzy was the senate majority leader then claiming that the LRB publishing the legislation meant it was now law, despite the Judge's restraining order preventing implementation and the fact that the LRB themseleves deny their publishing in anyway supersedes the SoS.

That's a pretty well justified tizzy. The LRB was not in the wrong but Fitzgerald absolutely is.

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larrytex56
   03/29/11 01:08

Judging by all of the comments, madness in Wisconsin is threatening the valid results of the 2010 election and the legislative process. Barzoo42, you've got some chutzpah - Judge Sumi in Madison had absolutely no legal basis to even issue a temporary restraining order against the Secretary of State in the first place, so don't be throwing constitutional niceties out there like some pious monk. Reread the Open Meetings Act; likelihood of success on the merits is nil. The lies that the left continues to throw out there, hoping that something will stick, is a sign of clear desperation.

I urge everyone in Wisconsin to open your eyes and see this for what it is, an attempt to intimidate the rest of you into giving in on an important issue in a serious budget crisis that is national in scope, not just confined to Wisconsin. Refuse to be intimidated by the American left - vote for Justice Prosser.

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   03/29/11 11:13

larrytex56- I think you're missing my point. I wasn't commenting on Judge Sumi's temporary restraining order at all. She may or may not have had legal basis to do that. That is a very complex legal question that the appellate court wisely chose to send that to the state Supreme Court. The problems on constitutionality arose when senate leader Fitzgerald arranged to have the bill published by the Legislative Bureau BEFORE the supreme court could rule on the legality of Judge Sumi's TRO. The constitution requires the Sec of State to publish laws and that they must be published in the official state newspaper. The legislature has designated the Wisconsin State Journal the official newspaper and NOT the Legislative Bureau, so that is the first violation. And of course the Sec State did not designate the date of publication because of the TRO. So that is the 2nd violation of the constitution. The wise move would have been to wait for the Supreme Court to rule on the TRO. If it was lifted, then the Sec of State would have published the bill in the official newspaper and everything would have met constitutional muster. However, Fitzgerald used an end-around move to bypass the Sec of State and bypass the official state newspaper, so that move seems totally unconstitutional. Sooner or later the courts will sort this out...and there is certainly a lot of sorting out to do over the process that Fitzgerald and Walker used.

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Jamie
   03/29/11 12:37

"leftist" cute. Is this website from the 1950s?

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