State Bar’s Appellate Practice Section posts Q & A with Wisconsin Supreme Court candidates

March 28, 2011 – The State Bar’s Appellate Practice Section recently published the answers to five questions posed to Wisconsin Supreme Court candidates David Prosser and JoAnne Kloppenburg in the March edition of the De Novo, the section newsletter.

Supreme Court Candidates Q & A: Prosser and Kloppenburg Face Off

On April 5, Wisconsin voters will elect either Justice David T. Prosser Jr. or Assistant Attorney General JoAnne F. Kloppenburg to a 10-year term on the Wisconsin Supreme Court. Justice Prosser was appointed to the Court in 1998 and was elected to a full term in 2001. He served 18 years as a member of the Wisconsin Legislature, six as Minority Leader, and two as Assembly Speaker. Attorney Kloppenburg has been a litigator and prosecutor at the Wisconsin Department of Justice since 1989, serving under four different attorneys general. For more information about the candidates, please visit http://www.justiceprosser.com and http://www.kloppenburgforjustice.com

Below are the candidates’ answers to five questions selected by Jake Wittwer, Law Clerk to Wisconsin Court of Appeals Judge Paul B. Higginbotham, and Erin O’Connor of O’Connor Law Offices, with input from members of the Appellate Practice Section Board. The Board thanks the candidates for their time and thoughtful responses.

Five Questions for Justice David Prosser

You’ve embraced the label of "judicial conservative" in this race. What do you mean by this?

A judicial conservative is the opposite of a judicial activist. A judicial conservative perceives the executive and legislative branches as the principal policy-making branches of government. The judicial branch inevitably makes policy, such as when it develops the common law; interprets statutes, rules, and documents; and engages in rule making. But the judiciary should not try to substitute its views for the policy made in other branches or rush to fill in every policy void. Inherent power, supervisory authority, and "new federalism" are devices to expand judicial power. A judicial conservative is reluctant to employ these devices, tries to follow precedent, and sees limits to the judiciary’s policy-making rule. My views are reflected in my Jerrell, Ferdon, and Conger dissents.

A press release from your campaign stated you would be a "common sense complement" to the new Republican governor and Republican majorities in the Legislature. You’ve since disavowed this comment, explaining that the press release was issued by your campaign without your approval. Please describe your view of the proper role of the court vis-à-vis the other two branches of government.

The judiciary is an independent, equal branch of government. It has some exclusive powers and some powers that it shares with other branches. Where the court shares powers, it should work cooperatively with other branches to avoid conflict. There are times when the court must serve as a referee in disputes between branches, and times when it must review challenges to the actions of other branches. In these situations, the court must be conspicuously neutral, upholding actions that pass constitutional muster, invalidating actions that clash with some provision of the constitution.

The authority of the court as decision maker depends, in large part, upon public confidence in the court’s integrity, impartiality, and absence of partisanship. I am wholly committed to these principles.

Some lawyers and judges complain that Supreme Court opinions are too long, padded with legal discussions that often aren’t necessary to decide the issues presented in the case. Do you think that this is a valid criticism? Why or why not?

Supreme Court opinions certainly vary in length and detail. My opinions are fact-intensive with background and procedural history that can be valuable to litigators. I try to organize and separate the standard of review, the issues presented, and the discussion of individual issues in a way that readers can find and follow in an opinion without too much difficulty. My holdings are normally stated near the beginning and at the end. I try to write linear opinions in which legal conclusions are grounded in transparent reasoning and analysis. My opinions discuss and defend my conclusions because these conclusions are under constant internal scrutiny and often are subject to written challenge. As a judicial conservative I value scholarship, reasoning, and aphorism about judicial activism.

Spending by third-party groups has dwarfed spending by the candidates themselves in two of the last three Supreme Court races. In general, such groups are not required to report the names of their donors. Do you favor requiring third-party groups to disclose the names of their contributors so that voters know who is trying to influence High Court elections?

In Buckley v. Valeo, the Supreme Court upheld disclosure requirements for independent expenditures. In Citizens United, the court reiterated that government may regulate corporate political speech by requiring disclosure of contributors. Last year, Wisconsin’s Government Accountability Board (GAB) promulgated a disclosure rule that is now pending before our court. The GAB rule regulates most "communication" in any form that may be used for a political purpose. Courts have deemed some disclosure requirements both constitutional and desirable. The GAB case presents important questions about the reach and detail of such regulation. Enough said.

You’ve served on the state Supreme Court for about 13 years. Do you have one or two practice tips to share with appellate lawyers based on your years of experience?

Oral argument can be very valuable, but it loses its effectiveness if counsel is not connecting with the court. Sometimes counsel has thoroughly mastered a complex area of law and speaks so brilliantly that it soars above the understanding of the court. On other occasions, observers quickly see that the court understands the law and/or record better than counsel. Optimal results are achieved when counsel and the court are on the same page. In oral argument, counsel usually benefits from clear expression, candor, and a little self-effacing humor.

Five Questions for Assistant Attorney General JoAnne Kloppenburg

You’ve said repeatedly that you were encouraged to run by people who were concerned that the Court was no longer acting in an independent and impartial manner. Do you share this concern? If so, please explain.

I was urged to run by people who sensed that Wisconsin residents were losing confidence in the court’s ability to do the important work we elect justices to do. They perceive the court is increasingly distracted by personalities and partisanship. My view of the court is that it should function as a collective arbiter of legal issues free of personal and political bias. It should act as a check and balance against the other branches of government in the event of overreaching. On Dec. 8, Justice Prosser’s campaign said that his re-election would protect "the conservative majority" on the court and enable the court to act as a "complement" to Gov. Walker and the legislature. That approach is simply wrong.

In light of your answer to the first question, do you believe that posts from your supporters against Gov. Walker’s budget repair bill that your campaign has allowed on your Facebook page affect your ability to appear impartial?

No. First of all, posts on Facebook are from individuals expressing their own views. When it comes to my ability to be impartial, it is my words that are important. I have said from the start of this campaign that my approach to the job will be to decide cases based on the facts and the law; that I will not prejudge cases; that I will listen respectfully and carefully to all who come before me and to my colleagues on the court. What has happened recently in the legislative and executive branches has underscored for people how important it is that the court be an independent and impartial check and balance on overreaching by the other branches of government.

Some lawyers and judges complain that Supreme Court opinions are too long, padded with legal discussions that often aren’t necessary to the issues presented in the case. Do you think that this is a valid criticism? Why or why not?

Pointed, concise reviews of the development of the applicable law are helpful. Winding detours down interesting but inapplicable legal byways are not. Such detours, along with the fractured nature of some decisions, make it difficult to understand what the holdings are and how to apply them. For example, in State v. Carter, the tightly framed 83-paragraph majority opinion and Justice Ziegler’s crisp 20-paragraph dissent are easy to follow; the incumbent’s 120-paragraph winding and inconsistent dissent is not.

Spending by third-party groups has dwarfed spending by the candidates themselves in two of the last three Supreme Court races. In general, such groups are not required to report the names of their donors. Do you favor requiring third-party groups to disclose the names of their contributors so that voters know who is trying to influence High Court elections?

The public financing law is the first step towards improving judicial elections. It has enabled my campaign to establish a broad and deep grassroots base of support among people who have not generally paid much attention to spring and Supreme Court elections. More information and greater transparency are in the public interest. How to frame disclosure requirements so that they serve that interest and pass constitutional muster is the next step.

You’ve argued numerous cases in the state Court of Appeals and Supreme Court. Do you have one or two practice tips to share with appellate lawyers based on your years of experience?

In briefs, tell a story that is forthright, that flows logically, that is compelling and memorable because of the common sense and force of your arguments. Make sure that each step of your analysis is visible (use headings!), discernible (make connections clear!), and supported by citations to the law and the record (quote sources!). In oral arguments, be prepared, be responsive, and take every question as an opportunity to advance your case.

The Appellate Practice Section is cosponsoring a debate between Wisconsin Supreme Court candidates on Monday, March 28, at 7 p.m. at the State Bar Center in Madison. The candidates will participate in a traditional debate format with opening statements, timed answers, rebuttals, and closing statements. Tickets are required to attend the free event, which will be simultaneously broadcast. For more information.