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David Prosser waffles on vow to denounce dishonest ads in Wisconsin Supreme Court race

Prosser, asked about the Citizens for a Strong America ad, dwells on the ad being run against him by the Greater Wisconsin Committee.
Prosser, asked about the Citizens for a Strong America ad, dwells on the ad being run against him by the Greater Wisconsin Committee.
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Political pledges don't get any more specific than the one made by Wisconsin Supreme Court Justice David Prosser during last Friday's "We the People" debate with challenger JoAnne Kloppenburg. He promised to repudiate any third-party group that ran an ad making false claims against his opponent and "stand up and ask" that the ad be pulled.

Yet now that the time has come for him to follow through on this promise, in response to a dishonest third-party ad being run against his opponent, Justice Prosser is straddling the fence.

"I have never seen that ad," Prosser told Isthmus in an interview this morning. "I don't sit around watching ads." He said he had read accounts of it and agreed that it was in at least one particular "misleading," but declined to comment on whether he would ask that the ad be pulled, saying he wanted to give the issue more thought. He said he would convey his answer by email; but more than two hours have passed since then, and no email has been received.

Prosser made his promise during the "We the People" debate (watch here, with the relevant section starting at minute 23). He was fulminating about an ad being run by the Greater Wisconsin Committee questioning his failure to prosecute a complaint he received in 1978, when he was the district attorney in Outagamie County, regarding a child-molesting priest.

Prosser claimed the ad contained "an outright, objective lie" and "is false factually. It is malicious beyond belief. It is the worst ad we can think of that has ever been run in a judicial campaign."

He read a statement from one of the victims, Troy Merryfield, who earlier was sharply critical of Prosser's role ("He knows damn well what happened and what was said," he told the Milwaukee Journal Sentinel in 2008. "He dropped the ball"). Merryfield now defended Prosser and attacked the ad. Prosser called on Kloppenburg to similarly renounce it, asking, "Will you do that, in terms of the integrity of the campaign?"

Kloppenburg declined, saying "Like it or not, third parties have a First Amendment right to run ads of their choosing."

Prosser, who elsewhere has defended the First Amendment right of his colleague, Michael Gableman, to run a factually reckless campaign ad, responded with a firm and clear pledge as to how he would respond in a similar situation: "If some third party ran an ad supporting me or attacking you and it was despicable and it was a lie, I would stand up and ask that that ad be pulled."

Flash forward to this week, and to an ad aired by a third-party group called Citizens for a Strong America. The website for this shadowy Beaver Dam-based group is registered to a John Connors, whose Milwaukee address is in the same building as Americans for Prosperity, a Tea Party-affiliated group funded by billionaire Scott Walker benefactor David Koch.

The 30-second ad attacking Kloppenburg includes multiple false and misleading statements -- so much so that Kloppenburg's campaign manager, Melissa Mulliken, says she's sent a letter asking television stations not to run it. The ad makes this bombshell claim: "[Kloppenburg] is so extreme she even put an 80-year-old farmer in jail for refusing to plant native vegetation on his farm." It concludes by asking viewers, "Tell Kloppenburg to fight crime, not our farmers and businesses."

In fact, assistant attorneys general do not have the authority to put people in jail; no prosecutor does. Decisions on who goes to jail and for how long are made by judges. In this case, the relevant decisions were made by two Jefferson County judges, including Randy Koschnick, the ultra-conservative jurist who ran against Chief Justice Shirley Abrahamson last year.

Second, the 80-year-old farmer in question, Wayne Hensler of Waterloo, was not jailed for not planting native vegetation. He was jailed for being in contempt of court, repeatedly, and not paying court-ordered fines. The case dates back to 2004, and has been in the courts since 2005. A motion for contempt and sanctions (PDF), filed in April 2008, spells out the relevant facts.

In 2005, after it was discovered that runoff from his farm was polluting Rock Lake, Hensler was ordered by the state Department of Natural Resources to plant seeding to "minimize or eliminate" the discharge of material from his property; he ignored this order, and was found in contempt. A $2,000 fine and 30-day jail sentence was stayed to give him another chance to comply.

Hensler ended up paying the DNR $1,500 to seed his property in the summer of 2006. In April 2007, he "chiselplowed all of the area that had been seeded" by the contractor hired by the DNR, the filing says. The state brought another motion for contempt; Hensler was found guilty again. A $2,500 fine was stayed to give him another chance to comply. He didn't.

So the DNR, represented by Attorney General J.B. Van Hollen and Assistant Attorney General JoAnne Kloppenburg, sought a third finding of contempt. This was granted on July 9, 2008.

The online court record reads:

The Court finds that his non-compliance was willful. Therefore, the Court finds Mr. Hensler in Contempt. The Court sanctions Mr. Hensler by ordering 5 days in Jail without Huber privileges, and by granting the State an easement, which will run with the land, allowing the State the right to maintain these acres in native grasses or other lawful vegetation to prevent run-off into Rock Lake and to protect that area from violation of this easement.

But even this was stayed to give Hensler yet another chance to comply. Again, he refused, prompting the judge to order that he be taken into custody for a five-day stay. It's not clear if he served this entire sentence. The court record seems to reflect that $14,953 out of $24,409 in fines have been paid.

So in fact the record does not substantiate that JoAnne Kloppenburg jailed an 80-year-old farmer for no good reason, except possibly to taint the state's business climate, as the ad implies. The truth is that a Jefferson county judge, at the request of Kloppenburg and a Republican attorney general, imposed a brief jail term on an environmental scofflaw who had demonstrated his contempt for the rule of law.

The pleadings that resulted in Hensler's jailing all bear Van Hollen's name and were issued under his authority. The Citizens for a Strong America ad, therefore, is equally an attack on Van Hollen, and must be read to say: "J.B. Van Hollen is so extreme he even put an 80-year-old farmer in jail for refusing to plant native vegetation on his farm."

Asked whether the office of the Attorney General took issue with this attack on an assistant acting under Van Hollen's direction, spokesperson Bill Cosh issued this reply: "The court records explain what was done. It would not be appropriate for this office to comment on a specific case that has become an issue in a judicial election."

In other words, if you're an employee of the Justice Department who seeks judicial election, in this case against a conservative, the office will leave you twisting in the wind should you consequently become the target of a factually inaccurate attack for having done your job. Good to know.

Prosser, asked about the Citizens for a Strong America ad, dwells on the ad being run against him by the Greater Wisconsin Committee. He says "the consequences of this ad are more serious in my case than in her case." He explains that this is because the "lie" this ad tells is more severe.

Asked what lie he is referring to, Prosser says the Greater Wisconsin Committee ad falsely suggests he failed to prosecute the priest to avoid scandal. This is what he is referring to when he says the ad contains "an outright, objective lie" and is 'malicious beyond belief."

Prosser may be right that the desire to avoid scandal was not part of his calculation, but this claim does have a factual basis. Green Bay Bishop Aloysius Wycislo stated in a letter in 1978 that DA Prosser had come to him seeking "to prevent unnecessary scandal," adding "I had to agree with the district attorney that the church would prefer to keep this out of court and out of the public eye." Perhaps the bishop was lying, but the representation as to Prosser's motives was not made up.

An analysis of the Greater Wisconsin Committee's ad by PolitiFact Wisconsin deems it "barely true," which is actually on the upper end of the credibility spectrum for political ads. An analysis of the ad by WISC-TV came down harder, finding it "misleading." The station's analysis of the Citizens for a Strong America ad against Kloppenburg reached the same conclusion, that this ad is "misleading."

Prosser agrees with this assessment, telling Isthmus "I think the ad is misleading" insofar as it suggests that Kloppenburg jailed the farmer. "I think the people who put the ad on should explain why they used this language."

But Prosser goes on to say that Kloppenburg can't disassociate from this outcome entirely, as she must have made a motion to the court seeking this sanction. He insists he does not know enough to gauge the ad's claim that Hensler was jailed for not planting vegetation, or whether it was for being found in contempt of court on multiple occasions for not paying court-ordered fines.

When Isthmus pointed out to Prosser that the court filing which makes this clear was attached to an email sent to him by the paper yesterday afternoon, Prosser said he had not read it.

His review of this issue is apparently still ongoing.

Importantly, Prosser's promise to "stand up and ask" that a dishonest ad against his opponent be pulled was not equivocal. He didn't say he would do this if Kloppenburg adopted the same approach. He didn't say that an ad could be misleading and not trigger his principled response. He said he would ask that any dishonest ad be pulled, out of his commitment to the integrity of the race.

On Thursday, former Wisconsin Gov. Patrick Lucey resigned (PDF) as honorary co-chair of Prosser's reelection campaign and endorsed Kloppenburg, citing the justice's "disturbing distemper and lack of civility." Lucey said in a statement that he has followed Prosser's campaign "with increasing dismay and now alarm," ultimately concluding that "Justice Prosser has lost that most crucial of characteristics for a Supreme Court Justice -- as for any judge -- even-handed impartiality."

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