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Wisconsin Supreme Court election: a referendum on tort reform, too

Stephen Moore at The Wall Street Journal reports on the April 5th election for Wisconsin Supreme Court, which organized labor and the political left are trying to turn into a referendum on Gov. Scott Walker's budget and collective bargaining reforms. From Political Diary, "Wisconsin's Battle Supreme":

State supreme court justice elections are typically slam dunks for the incumbent unless there is a scandal or a high-profile court decision that galvanizes opposition. In this case, incumbent David Prosser is caught in the crossfire over collective bargaining issues. Conservatives currently hold a 4-3 majority on the Wisconsin court, but an upset would give liberals the balance of power. Mr. Prosser's opponent, JoAnne Kloppenburg, was a relative unknown and a decided underdog until the protests ignited in Madison. She is now running around that state arguing that Mr. Prosser is a rubber stamp for Governor Walker and his agenda. The liberal groups are up with ads called "Prosser Is Walker."

Union activists and their allies explicitly link Kloppenburg's candidacy to reversing the new collective bargaining law in the Supreme Court. As The Superior Telegram reported, "PeopleFirst rallies behind Kloppenburg," quoting an organizer for the group, Mike Raunio:

Raunio says Kloppenburg could be a vital asset to repealing Scott Walker’s cut to collective bargaining rights.

“She is an ally to the people of Wisconsin. If we help her to get into to position then she will defiantly be an advocate to the rights of workers and everyday citizens.”

Both candidates have accepted public financing limiting their expenditures to $300,000, so outside groups are doing the advertising. Wisconsin Manufacturers and Commerce recently went on the air with a restrained pro-Prosser ad. In a fund-raising appeal to its members, WMC President James Haney wrote, "One union even told its members they want to defeat a Supreme Court justice to 'get even.' It’s shocking and they are putting big money behind their efforts, including boycotts of home-grown Wisconsin employers."

The Greater Wisconsin Committee, backed by the labor unions, had raised $3 million to support Kloppenburg and defeat Prosser, Haney reported. The group's latest ad attacks Prosser's record in the Legislature and derides him as a "rubber stamp" for Gov. Walker.

More than budgets and bargaining could be at stake. Gov. Walker's legislative initiatives began with Special Session Senate Bill 1, a package of civil justice reforms, which he signed into law on Jan. 27.

Tort reform figured prominently in the last heated Supreme Court election in Wisconsin, the April 2008 contest in which the incumbent appointee, Louis Butler Jr., lost to Michael Gableman, a district court judge and former prosecutor.

Butler had been the deciding vote in a 4-3 ruling in Ferdon v. Wisconsin Patients Compensation Fund, striking down the legislature's limits on damages in medical liability suits. Business groups were especially exercised at Butler for writing the 2005 opinion in Thomas v. Mallet,  which invented a "collective liability" for manufacturers of lead paint. (For more on Mallet, see this post by Federalist Society member Terrence Berres.) In both cases, Prosser dissented.

The Wisconsin Association for Justice had already weighed in against Gov. Walker's budget and bargaining initiatives as an "assault on workers' rights," and we fully expect trial lawyer money to pour into advertising for Kloppenburg and excoriating Prosser.

Coincidentally (we're sure), left-wing groups and labor unions are organizing a national Day of Rage Stand in Solidarity with Working People for April 4th, a day of rallies, protests and other activities. The Socialist Worker previewed its political implications for Wisconsin in a report on a March 12 political rally in Madison: "Rev. Jesse Jackson joined in the chorus of those focused on recall, invoking the civil rights struggle to argue that people should remember the slaying of Martin Luther King on April 4, but then, on April 5, go to the polls to oust right-wing state Supreme Court justice David Prosser in favor of veteran Assistant Attorney General JoAnne Kloppenburg."

More ...

The Dane County Bar Association sponsored a debate between the two candidates on Tuesday, and the two appeared Wednesday in front of the Madison Rotary Club.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.