In Their Words: Wisconsin Supreme Court Candidates by Daily Union

A SERVICE OF THE WISCONSIN TAXPAYERS ALLIANCE

The Wisconsin Taxpayer

Mural at Wisconsin Supreme Court. Photo credit: Amanda Todd.

In Their Words: Wisconsin Supreme Court Candidates Wisconsin voters face important decisions on April 5. They will elect local officials and also a new supreme court justice to serve until 2021. There were also contested supreme court races in 2007, 2008, and 2009. This year’s contest is between Justice David Prosser, who has served on the supreme court since his appointment in 1998, and state Assistant Attorney General JoAnne Kloppenburg. The candidates were the top vote-getters in a four-person February primary. In an effort to help citizens learn more about the candidates and make an informed decision, the Wisconsin Taxpayers Alliance sent both candidates a questionnaire asking about their background, experience, and judicial philosophy. Their answers, unedited, are published in this issue of The Wisconsin Taxpayer.

Also in this issue: Property Assessment & Appeals • Below-Average County Tax Increase • Venture Capital Investment Up • Average Hourly Earnings

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March 2011 Vol. 79 No. 3

THE SUPREME COURT The Wisconsin Constitution originally divided the state into five judicial districts. Once annually, each district’s chief judge traveled to Madison, and the five judges would sit as the supreme court. Often, the judges would rule on cases they previously presided over. Since 1903, the Wisconsin Supreme Court has comprised seven justices—the chief justice and six associate justices. Justice Shirley Abrahamson currently serves as chief justice, as she is the court’s longest-serving member (see Table 1). The supreme court is the state’s highest court, meaning that for state issues, the court’s ruling is final. The court receives cases from lower courts, though it also hears original actions. The majority of cases, however, are heard on appeal. In recent years, the court has been closely divided on many important issues, including tribal gaming, school finance, medical malpractice, product liability, and criminal rights. In addition to ruling on cases, the Wisconsin Supreme Court also administers the state judicial system. The court appoints the director of state courts and directs the Board of Bar Examiners, which regulates lawyers in the state.

Table 1: Wisconsin Supreme Court Justice Profile Tenure Began 1976

Term Ends 2019

Residence* Madison

Ann Walsh Bradley

1995

2015

Wausau

N. Patrick Crooks

1996

2016

Green Bay

David T. Prosser

1998

2011

Appleton

Justice Shirley S. Abrahamson

Patience D. Roggensack

2003

2013

Madison

Annette Kingsland Ziegler

2007

2017

West Bend

Michael J. Gableman

2008

2018

Webster

*At time of first election or appointment.

Selection Method In Wisconsin, justices are elected for 10 years in nonpartisan spring elections. However, the governor appoints a justice if there is a mid-term opening. The appointee serves until the first available spring election. Because only one justice can be elected in any one year, an appointment can sometimes last for multiple years. For example, Governor Doyle appointed Louis Butler in 2004. Because the seats of other justices were up for reelection in 2005, 2006, and 2007, Butler could not stand for election until 2008. Of the 75 justices since 1853, 45 (60%) were initially appointed rather than elected. Fourteen states select justices through nonpartisan elections, though other methods include partisan elections, gubernatorial appointments, and professional committees. Some states also give justices lifetime appointments—similar to the U.S. Supreme Court—while others require them to run in uncontested retention elections. In retention elections, justices must receive support from a majority of voters. Session Review The court received 717 petitions of review in 200910, asking that the court review the decision of the Court

of Appeals. Fifty-one petitions were granted, with 192 pending at the end of the term. During the 2009-10 session, the Wisconsin Supreme Court issued opinions resolving 103 cases, according to the clerk’s office. Forty of those cases dealt with civil matters, while 39 involved attorney discipline. Criminal cases accounted for less than one-quarter of opinions issued by the court. Figure 1 shows a breakdown of cases decided by the court in the 2008-09 and 2009-10 sessions.

CAMPAIGN FINANCE The 2011 supreme court campaign differs from prior years in that public financing is now available for candidates. Because of a law passed by the state legislature in 2009, supreme court candidates opting for public financing are provided $100,000 in the spring primary and $300,000 in the general election. Those amounts could be as high as $300,000 in the primary and $900,000 in the general, depending on the level of independent expenditures. The 2009 law also made changes to candidate contribution limits. Prior to this year, individuals could contribute a maximum of $10,000 to a supreme court candidate and $8,625 to a committee making a contribution to a candidate. The new law reduced the maximum contribution amounts to $1,000. Both Prosser and Kloppenburg received public financing in the primary and general elections. DATA SOURCES: American Bar Association; National Conference of State Legislatures; Wisconsin Legislative Reference Bureau; Wisconsin Supreme Court.

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Figure 1: Opinions Issued by the Wisconsin Supreme Court Opinions by Term and Area, 2008-09 and 2009-10 43 39

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Judicial Discipline 2008-09

Page 2

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Civil Cases

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Staff: Todd A. Berry, President; Kyle Christianson, Research Analyst; Dale J. Knapp, Research Director; Sandra Mumm, Business Manager; Kelly Pfeifer; Susan Ryan; Sharon Schmeling, Communications Director

JoAnne Kloppenburg

David Prosser

Professional experience

I am a litigator and prosecutor at the Department of Justice (1989-Present) having served under Attorneys General from both parties. My legal background is broad and deep and includes constitutional, appellate, civil, environmental, administrative, and criminal law. I’ve extensive courtroom experience in Circuit Court, Appeals Court and Supreme Court. I was a law clerk for Chief Judge Barbara Crabb, and interned for Chief Justice Shirley Abrahamson. I’ve taught at the UW Law School since 1990.

Early on, I set my sights on a career in public service. My career evolved as follows: law school lecturer; staff attorney, Office of Criminal Justice, United States Department of Justice; administrative assistant to Congressman; private attorney; elected district attorney, 1977-78; representative, Wisconsin Assembly, 1979-96; Assembly Speaker 1995-96; Wisconsin Tax Appeals Commissioner 1997-98; Justice, Wisconsin Supreme Court 1998-Current. No other candidate has this breadth of experience or been a judge.

Awards and distinctions

n Graduated with honors from UW Law

n Received major awards as a legislator

School University Award for scholarship and service Order of the Coif Graduated with honors from Yale University (1974)

from American Medical Association, Wisconsin Independent Business Association, National Federation of Small Business, Wisconsin Farm Bureau, Wisconsin American Legion, Wisconsin Counties Association, Wisconsin Chiefs of Police, Wisconsin Court Reporters Association, Wisconsin Council on Welfare Fraud Appleton West High School Hall of Fame (2005) John W. Forster Vision Award, Friends of the Fox (2009) Who’s Who in America Three commencement addresses at UW campuses

n n n

Memberships

n n n n n

Regent Neighborhood Association Legal Association of Women Wisconsin State Attorneys Association Dane County Bar Wisconsin State Bar

n n n n

“My legal background is broad and deep and includes constitutional, appellate, civil, environmental, administrative, and criminal law.” — JoAnne Kloppenburg

“Early on, I set my sights on a career in public service.” — David Prosser

Memberships

n n n n n

Wisconsin Bar Association Milwaukee Bar Association Outagamie County Bar Association National Conference of Commissioners on Uniform State Laws (1982-1996, 2005-07) James E. Doyle Inn of Court, Madison

March 2011 Vol. 79 No. 3

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Why are you running for the Wisconsin Supreme Court?

“My background, experience, and perspective are different from others and sometimes very useful in addressing issues.” — David Prosser

“People around the state urged me to run and are supporting my candidacy because Wisconsin residents want a Supreme Court that is fair, impartial and focused on the important work justices are elected to do.” — JoAnne Kloppenburg

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Prosser: After serving 18 years in the legislature, rising to the position of Assembly Speaker, I determined that it was time to move on. Some of my friends thought I had the temperament and scholarship to become a judge; and when Justice Janine Geske resigned from the Supreme Court, these friends urged me to apply to Governor Tommy Thompson for an appointment. Although the Supreme Court had never been a goal, I got the appointment. For the past 12 years, I have had the privilege of serving as a Justice. The Supreme Court is hard work. The cases are mentally challenging and the reading and writing can drain one’s energy. Working with six highly intelligent but sometimes contentious colleagues is also demanding. I would not seek re-election to the Court if I did not love the work and did not believe that my presence there is constructive and valuable. My background, experience, and perspective are different from others and sometimes very useful in addressing issues. Over 12 years I have written 132 majority opinions, plus many concurrences and dissents, and participated in more than 900 published decisions. Many of my opinions have significantly influenced Wisconsin law. I can also help the judiciary deal with the other two branches of government. That’s why I’m running. Kloppenburg: People around the state urged me to run and are supporting my candidacy because Wisconsin residents want a Supreme Court that is fair, impartial and focused on the important work justices are elected to do. Every Wisconsin resident deserves a fair day in Court. My broad legal background, my extensive courtroom experience, my independence and my commitment to running a campaign free of special interest money and big spending uniquely qualify me to serve on the Court. The Supreme Court decides cases that help establish precedent, resolves significant legal issues and provides guidance to other courts and attorneys throughout the state. It is important to remember, however, that in every case— behind the dry legal language and the legal arguments—there are people: people and fami-

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lies whose lives are affected by the actions judges take and the decisions judges make. The effect of the law on people’s lives is profound and powerful. American democracy is, in many ways, built upon our willingness to accept the decisions our courts reach as lawful, whether we agree with those decisions or not. That is why it is imperative Wisconsin residents have confidence in the judiciary as independent decision makers, not beholden to special interests or tied to partisan causes. Supreme Court Justices should and must be well versed in the law and committed to applying it fairly. That is the kind of justice I pledge to be: the kind of justice you would want hearing your case. What was the most significant experience in your legal career? Why? Kloppenburg: My legal career is an evolving series of significant experiences, from working on special projects with the late Professor Gordon Baldwin and interning with Chief Justice Abrahamson in law school and clerking for Chief Judge Crabb, all of whom set the highest standards while recognizing that real people and lives lie behind every case, to serving the interests of the people of Wisconsin and striving to do justice as an Assistant Attorney General at the Department of Justice, arguing multiple times before the Wisconsin Supreme Court and helping to codify fundamental principles of constitutional law in those cases, winning one of the longest civil trials in DOJ history, helping improve the quality of life for people and communities around the state, and gaining experience with an ever-increasing number of new legal issues. Prosser: In 1969, I began work in the Office of Criminal Justice, United States Department of Justice. In this capacity, I did research on criminal justice issues, wrote speeches for the Deputy Attorney General, and acted as a Department liaison with Congress and the District of Columbia government. I also met several major actors in the forthcoming Watergate controversy. Six months after leaving Justice, I became administrative assistant to Congressman Harold Froehlich, a member of the House Judiciary committee during the Watergate impeachment inquiry. I was involved with Congressman Froehlich during the entire impeachment process

and was present in the room when the committee voted to impeach President Nixon. I was extremely proud of Harold Froehlich’s exemplary conduct and deeply saddened when he was not re-elected because of his role. The following year I worked for Congressman Louis Wyman of New Hampshire who had run for the Senate in 1974. Wyman was not seated and eventually became another victim of the Watergate controversy. The Watergate experience had a profound impact on my views about government power— how it can be used and abused and how it can harm innocent people. The stakes and stresses of that experience have made succeeding controversies seem inconsequential. Watergate taught me that a public office is a public trust— and that all public officials should act accordingly. They should do their best and level with the people. It has taught me that “reforms” can have unintended, sometime adverse, consequences. So beware—overreaction! Who or what most influenced your judicial philosophy? Why? Prosser: When I worked at the United States Department of Justice in Washington, the Assistant Attorney General for the Office of Legal Counsel was a man named William Rehnquist. I never met him face to face, but he was widely known in the Department as a regular guy with awesome intelligence. His style of writing— which we saw in his speeches and testimony— was simple and straightforward. His legal analysis was insightful, linear, and easy to follow. One day, sitting in my office, I received a telephone call from William Rehnquist complimenting me on some testimony I had written for the Deputy Attorney General. His unexpected call left an indelible impression on a young attorney. It reminds me today of the importance of acknowledging and complimenting the excellent work of young colleagues. A few months after this incident, when Rehnquist was nominated for a seat on the Supreme Court, I became an even bigger fan. I didn’t realize until years later that Rehnquist had been born in Milwaukee, and I did not suspect that he would go on to become Chief Justice. William Rehnquist affected my judicial philosophy—because he distrusted the concentration of power in government—and affected my

writing style. Another justice I met, Hugo Black, also influenced my writing style. He wrote with passion and had the ability to sum up a legal principle in a pithy aphorism. Kloppenburg: My judicial philosophy is derived from my extensive experience appearing before judges around the state, at the trial and appellate levels. It is that people deserve a fair day in court. That starts with campaigns free of special interest money and big spending and partisan attacks, so that people are confident that the judges who are elected are independent and impartial. It continues with judges who are committed to the rule of law and upholding the State and U.S. Constitutions. Practically it means listening to arguments of parties and other justices, applying the law free of politics or personal views, and writing decisions that are well developed and well grounded, that make common sense and are clear, so judges and attorneys and Wisconsin citizens know what the Court is saying and what the law is.

“My judicial philosophy is derived from my extensive experience appearing before judges around the state, at the trial and appellate levels.” — JoAnne Kloppenburg

When you think about state Supreme Court decisions in the past 10 years, is there one that stands out as exceptionally wise or unwise? Kloppenburg: The people I’ve met around the state tell me that they perceive the Court’s tied decision on the Gableman campaign ad, an ad which people saw as unfair and untrue, fell along partisan lines. They also tell me that it wasn’t right for the Court to adopt verbatim the recusal rule written by entities that appear before the Court. Both decisions have damaged the Court’s image as an independent and impartial branch of government. The Court needs new blood, and I will bring a new and respectful dynamic to the Court and help restore public confidence in the Court’s independence and impartiality. Prosser: In the Wisconsin Supreme Court, majority opinions are assigned by lot. On October 4, 2000, the case of Wisconsin Professional Police Association v. Lightbourn, 2001 WI 59, 243 Wis 2d 512, 627 N.W. 2d 807, was argued, decided, and assigned to me. It turned out to be the longest, most complicated case I have ever had—the constitutionality of a $4 billion increase in pension benefits for public employees passed by the legislature.

“The Watergate experience had a profound impact on my views about government power—how it can be used and abused and how it can harm innocent people.” — David Prosser

The case was argued for more than two hours and involved multiple attacks on the legislation. March 2011 Vol. 79 No. 3

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All had to be answered, including a challenge that the bill failed to pass by a three-quarters vote of all the members elected to both houses of the legislature. See Article IV, Section 26, Wisconsin Constitution. My opinion upheld the constitutionality of the legislation. It is a primer on public pension law, articulates the basis for pension protections, and discusses both state and federal constitutional

law. The case will serve as a guide in future pension litigation and provided important authority for my decision in Wisconsin Medical Society v. Morgan, 2010 WI 94, 328 Wis 2d 469, 787 N.W. 2d 22, involving the $200 million transfer from the Injured Patients and Families Compensation Fund. o

Property Tax Assessment and Appeals Every December, property owners receive a property tax bill in the mail. When the bill amount increases, they are likely to blame changes in home value or in local levies. But, by then, it’s too late: Opportunities to appeal an assessment or change a local budget are gone.

EQUALIZED VALUES In reality, Wisconsin’s property tax process begins in January, when the state begins its estimation of equalized values. Equalized values are fair market property values estimated by the Wisconsin Department of Revenue (DOR). In contrast to a local assessment (see below), which places a value on an individual property, DOR estimates the fair market value for an aggregation of properties in a particular area. It begins this process on January 1 and releases equalized values for all taxing districts on August 15. Equalized values are used to fairly distribute total county, school, and technical college property taxes among the municipalities within those taxing districts. Because municipalities may not update their local assessments every year, their assessed values may not all be kept at 100% of market value. Since their equalized values are estimates of full market value, they can be used to distribute property taxes among underlying municipalities, ensuring that each taxpayer pays their “fair share” based on the most current estimate of value. Taxpayers cannot affect this part of the property tax process. However, they may be able to impact the assessed value of their individual property or the size of the municipal, county, or school tax levy. LOCAL ASSESSMENTS Local revaluation of property occurs annually in some municipalities and less frequently in others. Wisconsin law requires municipalities Page 6

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to reassess properties at least once every five years. An assessor is responsible for valuing all property other than manufacturing property, which is assessed by DOR. The assessor, elected or appointed, is required to pass an examination and be state certified. Assessment usually takes place in the spring and is generally finished by April or May. When property is reassessed, its value may increase, decrease, or stay the same. Several factors affect value. Property improvements, such as a new room or garage, would likely increase value. In many municipalities, a building permit alerts the assessor to property improvements. A contaminated water supply or failing septic system might adversely affect property value. In most cases, change in value reflects the real estate market in the area. During the 1990s and early 2000s, property values rose due largely to a strong housing market. More recently, values have fallen as a result of the real estate market decline. It is important to note that an increased/decreased assessment does not mean more/less is owed in property taxes. The tax levy is distributed based on an individual property’s share of the municipality’s total value. If all properties increase or decrease by the same amount and the levy is unchanged, the tax on that property will be unchanged. However, if the value of a property increases or decreases more than other properties, the tax on that property will rise or fall.

APPEALS When a municipal revaluation is complete, property owners receive a notice of the new assessed value. If the property owner feels the assessment is too high, he or she can appeal, but it must be done in a timely manner. Written

or verbal notice of intent to file an objection must be provided to the board of review’s clerk at least 48 hours prior to the board’s first meeting. A taxpayer who waits until property tax bills arrive in mid-December has no recourse. Also, property owners who refuse an assessor’s written request by certified mail to view the property cannot contest their assessment. For a complete description of the process, Wisconsin’s Property Assessment Appeal Guide can be found online at www.revenue.wi.gov. Board of Review The board of review hears and decides property assessment appeals. The board must schedule its first meeting in the 30 days after the second Monday in May (May 9th in 2011), but it may schedule a later date if assessments are not completed. A property owner who is unhappy with his or her assessment should first talk with the local assessor. Municipalities hold an “open book,” during which assessments may be reviewed and the assessor questioned. The assessment roll must be open for a minimum of two hours prior to the board of review’s first meeting. An individual who believes a property is not fairly assessed must file an objection during these two hours. Preparation. In making the decision to appeal, the taxpayer should be aware that the assessor’s value is presumed correct unless proved otherwise by factual evidence presented at the hearing. Also, small percentage differences in value are not sufficient to warrant a change. The property owner is expected to establish what he or she feels is the fair market value of the property during the appeal. If the owner’s property was recently purchased, the purchase price is the best evidence of fair market value. The next best indicator of current market value is sale of comparable properties in the area. These properties are affected by similar factors, such as proximity to schools, parks, shopping, or employment. Taxpayers considering an appeal should call their municipal clerk to verify dates for the open book period and the board of review meeting. Those pursuing an appeal must follow appeals process guidelines.

Other Appeal Options Individuals dissatisfied with the decision of the board of review have two additional appeal options. First, they may ask DOR to review the board’s decision. Requests must be filed within 20 days of the board’s decision. Second, taxpayers can also challenge the board of review’s decision or DOR’s ruling with the circuit court. The court does not hear new evidence; rather, it looks at the prior record and either upholds or invalidates the assessment. That is why it is important to present all evidence relating to the property assessment during the board of review meeting.

January DOR begins equalization process

April/May Local assessments usually completed

PROPERTY TAX LEVIES Although challenging an assessment is one way to impact an individual’s property taxes, taxpayers can also influence local property tax levies by attending municipal, county, or school board meetings and by contacting local officials. It is the elected members of these boards that determine property tax levies. Each year, local officials budget their expenditures, then reduce that amount by expected revenues (e.g., state and federal aids). The remaining amount is levied through the property tax. Budget Discussions The property tax is the largest single revenue source for local governments in Wisconsin. Although the tax levy is not finalized until the fall, local government budget discussions usually begin in June, and sometimes earlier. It is during this time that board members begin developing budgets for the following year. In Wisconsin, property tax bills that arrive in December provide government revenues for the following year. For example, property tax bills mailed in December 2011 are to pay for services provided by local governments in 2012. For school districts, December 2011 property taxes fund expenditures for the 2011-12 school year. In the spring, summer, and fall, taxpayers should attend local budget meetings if they want to influence the tax levy—and December tax bills. During that time, taxpayers can voice their concerns to their local officials. However, because the budget process begins more than six months before property tax bills arrive, few taxpayers get involved. o

May/June Board of review convenes

June Local budget process begins

August Equalized values released by DOR

Oct./Nov. Local budgets finalized/tax levies set

December Property tax bills arrive

DATA SOURCES: Wisconsin Department of Revenue, Legislative Fiscal Bureau; WISTAX calculations. March 2011 Vol. 79 No. 3

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WISTAX NOTES

n Below-Average County Tax Increase. Recently released 2010-11 county property tax levies show a belowaverage increase this year (see graph, right). Statewide, county tax levies were up 2.0%, the smallest one-year increase since a 1.1% drop in 1983. Eleven of 72 counties reduced their levy from the prior year, with Brown County (-2.2%) reporting the largest drop from 2009-10. An additional 14 counties increased their levies less than one percent, while 21 had increases between one and three percent. Door and Marquette counties had the largest tax levy hikes, rising 8.9% and 10.2%, respectively. A complete list of current and prior year county tax levies is available online at www.wistax.org/ facts. n Venture Capital Investment Up. Wisconsin companies attracted $122 million in venture capital funding in 2010. According to figures from PricewaterCoopers, investments were up over 400% from just $24 million in 2009. Promising young companies often turn to venture capital investors, rather than traditional lenders, for startup funding. Growth in venture capital disbursements is one indication of the entrepreneurial health of an economy. Nationally, venture capital funding totalled $21.8 billion, 19% above 2009 amounts. California companies received over half of all venture capital funding in the U.S. n Average Hourly Earnings. Wisconsin private sector workers earned an average of $21.35 per hour in 2010. That amount was up from $21.12 in 2009 and $20.67 in 2008, according to figures from the Bureau of Labor Statistics. Wisconsin’s average hourly rate was below that of all neighboring states except Iowa ($20.38). Minnesota ($23.84) was highest, followed by Illinois ($23.08) and Michigan ($22.25). Compared nationally, hourly earnings here averaged 5.6% below the U.S. ($22.61).

2011 County Property Tax Increase Below Average Annual Change in Statewide County Property Tax Levies 4.5 4% 3.5 3.2

3.1

3.2

3% 2.0

2006

2007

2008

2009

2010

2011

n E-Filing Tax Returns. Wisconsin Department of Revenue (DOR) officials are encouraging people to file their 2010 income tax returns electronically to receive a faster refund. According to DOR, electronic filing is free, is confidential, and can help eliminate mistakes. Filers using the state’s e-filing website can receive their tax refund in a few days. More than 75% of taxpayers are expected to efile this year.

WISTAX FOCUS

n New Administration, New Priorities. With every new governor comes new priorities and goals. “Pendulum swings, priorities shift, big promises made” (Focus #111) reviews and compares Republican Governor Scott Walker’s inaugural address with that of Democratic Governor Jim Doyle’s eight years ago. Both governors called for bipartisanship, job creation, quality education, and a clean environment. Both also promised to put an end to recurring budget deficits without increasing taxes. However, while Doyle stressed the importance of public service and the need for “clean and honest government,” the theme of Walker’s address was jobs—specifically his goal to create 250,000 new jobs by 2015. o

The Wisconsin Taxpayers Alliance, founded in 1932, is the state’s oldest and most respected private government-research organization. Through its publications, civic lectures, and school talks, WISTAX aims to improve Wisconsin government through citizen education. Nonprofit, nonpartisan, and independently funded, WISTAX is not affiliated with any group—national, state, or local—and receives no government support.