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Bench Memos

NRO’s home for judicial news and analysis.

State Courts Update



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Wisconsin: Wisconsin’s state-supreme-court election will occur in just a few weeks, on April 5. This will be the first significant political event in Wisconsin since Governor Walker dealt a crushing blow to the state’s unions. Incumbent Justice David Prosser, a popular conservative, faces JoAnne Kloppenburg, an assistant attorney general with strong support from unions and traditional liberal special interests. In the February 15 primary, Prosser won 51 percent of the vote, Kloppenburg 28 percent, Marla Stephens 11 percent, and Joel Winnig 10 percent. Having secured more than half of the vote in a crowded primary, and facing an unknown challenger with no judicial experience in the general, many people thought Prosser was well-positioned to cruise to reelection.

But, as several local and national outlets have reported, the Left intends to turn the supreme-court race into a referendum on Governor Walker and his GOP colleagues. They know that conservatives have a narrow 4–3 majority on the court, so their best chance at making an immediate political statement while rolling back important reforms is to replace Prosser with Kloppenburg. I fully expect the same people who crusaded for Wisconsin’s absurd (and unconstitutional) public-financing scheme to spend enormous sums of money on an ad campaign trashing Prosser and a union-backed grassroots effort to get votes out for Kloppenburg.

I’m told that Prosser is well-liked and in a good position to withstand the attacks, so I’m sorry to say that Common Cause might not get its opportunity to ask Kloppenburg to recuse herself in future labor cases on the basis that she was clearly elected to do the unions’ bidding.

Iowa: Governor Branstad, who was forced by the state’s Judicial Nominating Commission to fill Iowa’s three supreme-court vacancies from a list made up primarily of trial lawyers and Democrats (discussed here), deserves praise for standing up to trial lawyers and selecting William R. Gustoff of Des Moines to serve on the commission. Gustoff is local counsel in a lawsuit filed by Jim Bopp alleging that Iowa’s version of the Missouri Plan is unconstitutional. Ironically, Governor Branstad’s critics are up in arms because Gustoff is a lawyer. You might be asking yourself, “Wait, I thought the Missouri Plan’s defenders preferred lawyer dominance of the judicial-selection process?” You’re not the only one who is confused. Apparently it’s not enough to be a lawyer — you also need to get the bar’s seal of approval.

Kansas: Governor Brownback and Rep. Lance Kinzer continue to fight for judicial-selection reform in Kansas. Their support for the legislation that was recently passed in the House (discussed in the Wall Street Journal here) has been invaluable in the effort to reform Kansas’s current lawyer-dominated Missouri Plan system. Unfortunately, liberal senate Judiciary Committee chairman Tim Owens is refusing to hold committee hearings on the bill. The Senate has until March 18 to allow it to be heard in committee. See here for a recent entry by Kansas Watchdog explaining the need for reform.

Oklahoma: Last week the Oklahoma senate approved Senate Joint Resolution 36, which would put a constitutional amendment on the ballot asking voters if they want to abandon their state’s Missouri Plan and replace it with the federal model. The measure is now in the House, where Republicans have a 2–1  margin on Democrats.

Arizona: Similarly, in Arizona the state senate approved Senate Concurrent Resolution 1040, which would replace Arizona’s Missouri Plan with the federal model — with a twist. Once confirmed by the senate, Arizona’s supreme court judges would stand for re-appointment and re-confirmation after six years, much like they do in New Jersey. If approved by the House, voters will decide whether to adopt it as a constitutional amendment.

Texas: The Texas legislature is once again making trial lawyers nervous. Seven Texas state representatives published an on an op-ed supporting the “loser pays” system that would require the losers in a lawsuit to pay legal fees. For more information on the idea, see this paper published by Marie Gryphon of the Manhattan Institute. According to Gryphon:

— Almost every economist who has studied loser pays predicts that it would, if adopted, reduce the number of low-merit lawsuits.

● A loser-pays rule would encourage business owners and other potential defendants to try harder to comply with the law. Doing so should produce fewer injuries.

● Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle.



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