Although four candidates are running for a spot on the Wisconsin Supreme Court, a sitting justice not in the race played an influential role in last week’s candidate forum at the Milwaukee Bar Association.

The candidates were reacting to the state Supreme Court’s decision not to discipline Justice Michael Gableman for his highly inflammatory—and knowingly false—2008 campaign ad attacking then-Justice Louis Butler.

In doing so, they were attacking the incumbent running for re-election, Justice David Prosser, who was among three state Supreme Court justices who voted in favor of dismissing an ethics complaint against Gableman for his false, race-baiting ad.

While the candidates weren’t asked specifically about the Gableman ethics case in last Thursday’s forum, they came out swinging against Prosser, a former Republican legislator who was appointed to the bench by Tommy Thompson and then won a full 10-year term on the court in 2001.

The four candidates on the Feb. 15 primary ballot will be Prosser; Assistant Attorney General JoAnne Kloppenburg; Marla Stephens, the director of Wisconsin’s Office of the State Public Defender’s appellate division and the chair of the Judicial Council of Wisconsin; and Madison attorney Joel Winnig. The top two vote-getters will face off in the April 5 general election.

Challengers Say It’s Wrong to Lie

Most of the criticism of Prosser came in response to a question asking the candidates to name a decision that they believe the court got wrong.

“That would have to be the Gableman ethics case,” said Marla Stephens. “Justice Gableman lied about Justice Butler. We all know that when we communicate, we do so by what we say directly and by what we imply. What he implied about Justice Butler was a lie. The Supreme Court got it wrong. Justice Gableman lied about an opponent in a race and his colleagues should have had the courage to tell the people of this state that what he did was wrong.”

Stephens had also used her opening remarks as an opportunity to criticize Prosser’s politicization of the court.

“I chose to run now because Justice Prosser will not serve as an independent check and balance against overreaching by the other two branches of government,” Stephens said. “Unfortunately his own campaign manager said he [Prosser] was looking forward to being a complement to the new [Republican] administration and the new [Republican-led] Legislature. Time and again Justice Prosser has taken the easy way out by refusing to take a stand on the issues that do erode the integrity of the court.”

Attorney Joel Winnig agreed with Stephens’ criticism of the Gableman case.

“There were dishonest arguments made by Justice Gableman’s attorney and they were not challenged properly,” Winnig said. “So that decision was very disappointing.”

He also criticized Chief Justice Shirley Abrahamson’s admission that disciplining one’s colleague is a difficult task. (Abrahamson eventually disagreed with Prosser and voted against dismissing the Gableman case, however.)

“The question became, ‘Who was there to stand up for what is right for the people of Wisconsin?’” Winnig said. “What message are we as lawyers and justices of the Supreme Court giving to teachers who are trying to teach people what’s right and wrong?”

Assistant Attorney General JoAnne Kloppenburg agreed with the criticism of the Gableman case, and added that the court’s approval of new rules about when judges and justices should recuse themselves from cases also eroded the public’s confidence in the court’s integrity.

Kloppenburg was referring to a much-maligned 4-3 decision by the court in 2010 to adopt rules—verbatim—that had been written by Wisconsin Manufacturers & Commerce (WMC) and the Wisconsin Realtors Association that would allow judges at all levels to rule on cases in which a campaign contributor or major independent supporter is involved.

Prosser was among the four justices that approved the new recusal rules created by two of the most powerful special interests in the state. Prosser is also the first justice to run for re-election under the new rules.

“It was wrong for the court just to adopt rules that had been crafted by organizations that argue before the court instead of doing independent work on their own, listening to all of the positions that were articulated to the court and determining for themselves what the rules should be governing recusal for justices and judges in the court system,” Kloppenburg said.

Prosser Says It’s About the First Amendment

Prosser declined to name a decision he thought the court got wrong and instead defended his decision in support of Gableman.

“We’re talking about the First Amendment, which should be strictly construed in favor of free speech,” Prosser said.

Besides, he added, the section of the Judicial Code of Conduct that regulated Gableman’s ad only recommends that candidates not lie about their opponents. It doesn’t require them to be truthful, Prosser argued.

“What Justice Gableman did fell under that second part of the rule,” Prosser said. “Had it fallen under the first part of the rule, we might have had a different decision. But at any event, we have to honor the First Amendment.”

And what about Kloppenburg’s criticism of the special-interest-written rules for justices and judges who have taken campaign contributions from a party in a case before them?

Prosser called the criticism “a lot of bunk” because, apparently, justices can’t raise the amount of money that could sway their decisions.

“The contribution limits in the state of Wisconsin in Supreme Court races have been reduced to $1,000,” Prosser said. “No one can take more than $1,000 in any circumstance. So I don’t think that there’s anything wrong with the recusal rules that have been written.”