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By James B. Nelson April 1, 2011

Wisconsin Supreme Court Justice David Prosser says challenger JoAnne Kloppenburg’s record consists only of prosecuting cases regarding regulation of docks

The candidates in the acrimonious race for Wisconsin Supreme Court have spent a considerable amount of time focusing on their experience and qualifications for the job.

Justice David Prosser’s experience is pretty simple to understand. He has served a dozen years on the court and was Outagamie County district attorney for a couple of years. A Republican, Prosser also served 16 years in the state Assembly, and was speaker.

The JoAnne Kloppenburg file is more difficult to evaluate: 21 years as an attorney in the state Department of Justice.

That leaves plenty of room for interpretation -- by the candidate and her opponent. That’s what happened in a March 21, 2011, debate at the Marquette University Law School.

Prosser told the audience that Kloppenburg "is incredibly envious" of his record as a district attorney, and his time as a lawmaker and justice. He said he had prosecuted cases that involved violent crime.

"I’ve had victims of crime cry on my shoulder," Prosser said.

He continued with this observation about Kloppenburg’s experience: "She has a very different record as a prosecutor. It’s all the prosecution of DNR regulations of docks … the length of docks. The width of docks. Whether people can have docks. That’s a complete different kind of prosecution that I am familiar with or have been writing cases about as well for 12 and a half years."

That stopped us and undoubtedly many in the audience.

More than two decades on cases hassling dock owners? Sounds like a lot of legal grunt work.

It’s a claim that Prosser has made repeatedly on the campaign trail, and a theme that’s been picked up in ads from outside groups attacking Kloppenburg.

We asked for backup.

Prosser’s campaign spokesman Brian Nemoir said in an email that state court records and other research tools showed 46 cases that involved Kloppenburg, 76 percent of which "were for the DNR."  

"Of the 46, five were directly identifiable with piers," he said.

Fair enough. For a decade, Kloppenburg led the Department of Justice’s environmental litigation team. Docks would be in her wheelhouse.

Kloppenburg opponents have seized on her record as a environmental lawyer, painting her as an extremist. On March 29, talk show host Charlie Sykes said: "If you are an environmental zealot, I do understand that JoAnne Kloppenburg is probably your candidate."

Sykes added: "If you have a pier that’s a few feet too close … JoAnne Kloppenburg is your worst enemy."

But let’s circle back to the support Prosser’s campaign provided. Of the 46 cases cited, only five dealt with docks. What about the rest?  

The Kloppenburg campaign gave us a list of 17 published decisions of cases that she argued before the state Appeals Court. The cases involved water and air pollution permits, a landfill dispute and the state’s authority over navigable waterways. Two involved the civil rights of state prison inmates, one involved the treatment of a prisoner. No dock cases were included.

The campaign noted that over the years, Kloppenburg has argued hundreds of cases in circuit courts around the state, and numerous cases before the state Supreme Court -- including one in which a decision was handed down March 23,  two days after the debate at Marquette.

In that case, Kloppenburg represented the state in a lawsuit involving a dispute over a hearing for a water discharge permit for a paper mill in Green Bay. Environmentalists wanted a public hearing about the permit; the DNR did not. Kloppenburg represented the DNR and won the case -- with Prosser voting with the majority. While environmentalists were unhappy with the decision, business groups -- some of which are paying for ads attacking Kloppenburg’s legal credentials -- were pleased.

She said her campaign was able to identify citations of 206 court cases dating back to 1989, and said few, if any, involved docks or piers.

Other cases she’s handled in her career included those involving complaints from prisoners, the state’s part of lawsuits against big tobacco companies, Indian treaty rights and gaming compacts, and medical malpractice caps. She has had numerous cases involving well-known state and local companies, including Patrick Cudahy, Enbridge, Georgia Pacific, and a sunken barge in the Menomonee River.

Kloppenburg told the Milwaukee Journal Sentinel editorial board that her job was to enforce the state’s environmental laws.

When we asked Prosser directly to explain his comment, he said he was well aware Kloppenburg handled a much broader variety of cases for the Justice Department than docks. Indeed, a number of them were argued before him on the Supreme Court.

"I’m certainly aware of the breadth of those cases," Prosser said, adding that his comments about docks were "a little rhetorical flourish."

Prosser recalled a case about a July 2006 decision about a Green Lake subdivision that let homeowners have a fractional interest so they could have a boat slip on a nearby dock. The court ruled in favor of the DNR and forced the association to reduce the number of boat slips. Prosser also mentioned another case that was relayed to him in a private letter from a circuit court judge in northern Wisconsin.

"Those are the two I was most familiar with," Prosser said.

He added this about his dock comment: "I was really trying to inject a little bit of levity into this. I think the rhetorical flourish is easily justified in terms of these two cases."

But that flies in the face of the reality of the campaign. As we noted, the dock cases have emerged as a line of attack against Kloppenburg from several fronts. What’s more, those in the audience didn’t offer a lot of chuckles during that portion of the debate.

Former Journal Sentinel reporter Alan Borsuk, who now works for the Marquette Law School, blogged this about the event: "I’ve been at some testy and tense debates and joint appearances by candidates in various races, but this one was way up the list, if it wasn’t the champion on my personal list."

Borsuk noted the exchange about experience and said Prosser touted his record "while slighting her record in environmental work with the attorney general’s office as involving ‘the length of (boat) docks.’"

Let’s bring this ship to shore.

Justice Prosser told a debate audience that his opponent’s work as a prosecutor was very limited and said she only handled cases involving the size and length of docks. But the record shows a much broader range of cases handled by Kloppenburg in her time at the Department of Justice. Indeed, Prosser later said he was well aware of the "breadth" of those cases.

What’s more, Prosser brushed the claim off as a "rhetorical flourish" and an attempt at "levity." That would be more believable if people treated it that way at the time and if it didn’t match up with one of the major lines of attack from Kloppenburg critics in the campaign.

At PolitiFact, a statement is False if it is not accurate. It’s not accurate to say that Kloppenburg’s has only handled dock cases. That’s a ridiculous claim -- from a justice who has heard her argue a variety of cases before him on the state’s high court.

False plus ridiculous equals Pants on Fire.

Featured Fact-check

Our Sources

Emails, Brian Nemoir, Prosser campaign, March 29 and 30, 2011

Email, Melissa Mulliken, Kloppenburg campaign, March 29, 2011

Interview, JoAnne Kloppenburg, March 29, 2011

Interview, David Prosser, March 30, 2011

Marquette University Law School debate, March 21, 2011

Alan Borsuk, Marquette Law School Blog, March 23, 2011

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Wisconsin Supreme Court Justice David Prosser says challenger JoAnne Kloppenburg’s record consists only of prosecuting cases regarding regulation of docks

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