Frederica Freyberg:

I'm Frederica Freyberg. Tonight on “Here and Now,” a recap of spring election results. After that, a “Closer Look” at why fewer people are running for the state supreme court. And in tonight’s “Capitol Insight” segment, the state senate majority and minority leaders are here with both sides of the new high-capacity wells bill. It’s “Here and Now” for April 7.

Announcer:

Funding for “Here and Now” is provided, in part, by Friends of Wisconsin Public Television.

Frederica Freyberg:

First up tonight, spring election results, starting with the race for state school superintendent. Incumbent Tony Evers was reelected with 69% of the vote over his challenger Lowell Holtz who garnered 23% of the vote. Tuesday was a big day for school referenda in the Green Bay and Verona school districts. Voters gave the go-ahead to the Verona district to exceed spending limits by a total of $184 million to pay for projects that include the building of a new high school and renovation of a middle school. In Green Bay, voters approved $165 million more over the next ten years. Overall, there were 65 referenda on ballots across the state. 40 passed. 25 were rejected.

Frederica Freyberg:

In tonight’s “Closer Look,” Justice Annette Ziegler was unopposed in her race for a second ten-year term on the Wisconsin Supreme Court. It’s the first time since 2006 that no challenger emerged, and many judicial observers believe some of the best candidates for the court simply are not willing to run. “Here and Now’s” Zac Schultz reports.

Clerk:

The Supreme Court of the state of Wisconsin is now in session.

Zac Schultz:

The Wisconsin Supreme Court is technically a nonpartisan body. That’s why the justices are elected in the nonpartisan spring elections to ten-year terms that should insulate them from partisan politics across the capitol. But judicial observers say over the last decade, those safeguards have become mere technicalities and the partisanship that defines the fall elections has spread to the spring.

Kendall Kelley:

The judicial branch in general has become far more politicized.

Richard Sankovitz:

The more partisan our elections get the more irrelevant they become to whether or not the best judges are seated in these most important seats on the Supreme Court.

Zac Schultz:

Kendall Kelley and Richard Sankovitz are both respected circuit court judges who have been approached by groups asking them to run for the Supreme Court. But in the end, they’ve both declined. It’s not that they didn’t want to serve. It’s that they didn’t want to run.

Richard Sankovitz:

I think that judges are getting more and more uncomfortable with the idea of running for those higher offices, in part because when it comes to getting involved in a race that’s bound to be dominated by partisan forces, we are fish out of water.

Zac Schultz:

The rise in partisanship has been a decade in the making. In 2005, the Wisconsin Supreme Court issued a few decisions that angered the business community, especially Wisconsin Manufacturers and Commerce, the state’s largest business lobby. In 2007, there was an open seat on the court and Annette Ziegler faced Linda Clifford.

Linda Clifford:

Probably the first time that a Wisconsin Supreme Court election wasn’t conducted in the usual gentlemanly manner, if I can use that term.

Zac Schultz:

Clifford says early in the campaign she learned WMC planned to spend millions to support Ziegler.

TV announcer:

Linda Clifford has zero experience putting criminals behind bars.

Linda Clifford:

We saw millions of dollars from interest groups, locally and nationally, coming into that election for the first time. And as much as we tried to prepare for it, it was pretty overwhelming.

Zac Schultz:

WMC declined to comment for this story. In 2008 a win by a conservative swung the balance of the court. Justice Louis Butler had been appointed to the court by Democratic Governor Jim Doyle. No incumbent justice had been defeated in four decades and it appeared no one wanted to challenge Butler.

Richard Sankovitz:

It took a long time in 2008 for a challenger to emerge to take on the incumbent that year.

Zac Schultz:

Judge Sankovitz was approached and said no. Judge Kelley was approached as well.

Kendall Kelley:

I was concerned that the process turned out exactly as I would have feared.

Zac Schultz:

Eventually Judge Mike Gableman got in the race.

Richard Sankovitz:

And the challenger who came out was not reputed as one of the best judges in the state, was not known by many judges in the state and did not run a race based on experience or the ability to command the things a Supreme Court justice should command.

Zac Schultz:

Gableman ran an ad that opponents described as racist and misleading and even his supporters called distasteful.

TV announcer:

Louis Butler worked to put criminals on the street. Like Rubin Lee Mitchell who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child.

Zac Schultz:

WMC spent more than $2 million on attack ads.

TV announcer:

Call Justice Louis Butler. Ask him to deliver justice, not loopholes.

Zac Schultz:

Gableman won by 20,000 votes. Judge Kelley says he’s glad he wasn’t the candidate.

Kendall Kelley:

I didn’t want to be part of the advertising campaign, intentionally or unintentionally, that I thought harmed the very work that we do.

Zac Schultz:

It didn’t get better. In 2011, Justice David Prosser’s race against Joanne Kloppenburg became a proxy vote on Scott walker’s Act 10 bill.

TV announcer:

Tell David Prosser judges should be independent, not a rubber stamp for Scott Walker.

Zac Schultz:

That race ended with a recount.

TV announcer:

But Joanne Kloppenberg says she’s not tough on crime.

Zac Schultz:

2016 saw another Walker proxy vote when his appointee Rebecca Bradley defeated Kloppenburg again.

TV announcer:

She may be right for Scott Walker but she’s too extreme for our Supreme Court.

Zac Schultz:

Judge Sankovitz says Supreme Court election ads are dominated by criminal issues.

TV announcer:

The issue is fighting crime and putting victims first.

TV announcer:

Which are a small part of what the court decides.

Richard Sankovitz:

That frustration, that futility that a judge faces in deciding to jump into a race where the judge knows that the issues that really count won’t be discussed keeps a lot of people out of the race.

Zac Schultz:

Not everyone agrees there’s a problem.

Andrew Hitt:

I think we have a very good court.

Zac Schultz:

Andrew Hitt was Justice Ziegler’s first law clerk at the Supreme Court. He says there are two simple reasons she had no challenger. The first is respect.

Andrew Hitt:

You have a wide swath of practicing lawyers that really respect her work and the contributions she has made to the court.

Zac Schultz:

The second reason is philosophy. Like Ziegler, Hitt is a member of the Federalist Society, a conservative legal group. He says conservative judges wouldn’t challenge a sitting conservative. They’re more likely to reach the court by getting appointed to an open seat by Governor Walker.

Andrew Hitt:

Is there going to be an opening? Is there a chance at an appointment?

Zac Schultz:

That makes sense when you consider 11 people applied for the open seat on the court last year that eventually went to Justice Dan Kelly. But no one of those 11 decided to run against Justice Ziegler a few months later.

Andrew Hitt:

More often the case it probably comes down to judicial philosophy.

Zac Schultz:

Andrew Hitt doesn’t discount the notion of Supreme Court races being ugly and expensive or the impact of Wisconsin Manufacturers and Commerce and other third-party interest groups. But he says the impact ends on election day.

Andrew Hitt:

Does that electoral impact or the fact that they spent some money, does that impact how any of them decide? I would say for all seven of them the answer is definitively no.

Scot Ross:

We have an incredibly compromised and ethically bereft Supreme Court.

Zac Schultz:

Scot Ross is the executive director of One Wisconsin Now, a progressive advocacy group. He says the Supreme Court’s partisan elections result in more than a loss in credibility.

Scot Ross:

Got five judges basically that do the bidding of corporate special interests and Governor Walker’s republican agenda, top to bottom, every single time.

Zac Schultz:

Ross says the evidence is in Supreme Court decisions on controversial issues like Act 10, voter id and stopping the John Doe investigation, a case where WMC was under investigation for possible illegal election coordination with Governor Walker’s campaign.

Scot Ross:

They bought a “Get out of jail free” card when it came to the John Doe investigation because they stopped the investigation.

Andrew Hitt:

WMC has had an impact on elections, but I guess I would say that to those people who think they’ve bought and paid for a court, it sounds good in the movies, but it’s not reality.

Zac Schultz:

But if WMC hasn’t paid for results, why have they spent millions trying to get conservatives elected to the court?

Andrew Hitt:

What likely motivated WMC was we want a court, they want a court that respects the role of the judiciary and adheres to the proper role of the court.

Zac Schultz:

And if the court is so corrupted, why did no one challenge Justice Ziegler?

Scot Ross:

Now, some folks have said if you couldn’t beat Rebecca Bradley, why would anybody get into the race?

Zac Schultz:

Ross says the liberal anger against Donald Trump could have made the difference.

Scot Ross:

There's a huge progressive pushback and somebody, I think, missed a real golden opportunity to take on Annette Ziegler and potentially take her out of office.

Zac Schultz:

Many observers think there are not as many progressive judges in Wisconsin simply because there’s no one to appoint them to the bench.

Richard Sankovitz:

The fact is right now most of our justices don’t get there by election. They are appointed in the middle of a term to replace another justice and then stand for election later on.

Zac Schultz:

In six years, Governor Walker has made 65 judicial appointments, meaning 25% of the judiciary was handpicked by him, including the last two Supreme Court justices. Republican governors have been jump-starting the careers of new judges for 22 of the last 30 years. In fact, both of the judges in our story first reached the bench through appointment. Judge Sankovitz by Governor Tommy Thompson and Judge Kelly by Governor Scott McCallum. Since 1975, ten of the 17 Wisconsin Supreme Court justices were appointed. All of which leads Judge Sankovitz to ask why are we still electing Supreme Court justices at all?

Richard Sankovitz:

If you had judges appointed by a fairly independent body or at least a body that was balanced when it came to partisanship.

Zac Schultz:

But conservatives like Andrew Hitt are just fine with the current system.

Andrew Hitt:

I think the sunshine and the speech from both sides is where we get the best results.

Zac Schultz:

And even progressives like Scot Ross aren’t onboard.

Scot Ross:

I'm one of those people that I like to see somebody who’s making decisions that affect my life be directly accountable to me at the ballot box. But I can understand why people might have a different perspective on that.

Zac Schultz:

Judge Kelly doesn’t know if moving everything to appointments would help.

Kendall Kelley:

I'm not sure how you unring the bell. I don’t know that I've ever read about any process that’s apolitical.

Zac Schultz:

So that leaves one option, convincing the best candidates to run for office. Otherwise Judge Sankovitz fears the candidates we do get won’t be able to avoid the stain of partisan politics.

Richard Sankovitz:

If good judges are not going to get into these races, it might open the door to people who are not good judges, but who are willing to take partisan positions and by doing so they might win support from these outside interests.

Frederica Freyberg:

That was Zac Schultz reporting. Now an update from Wisconsin's Native American population. Stockbridge-Munsee president Shannon Holsey gave the annual State of the Tribes address at the capitol Tuesday. Here’s what she had to say about working with state lawmakers.

Shannon Holsey:

We have partnerships waiting to be developed. We have collaborators waiting to bring their expertise and experience. We have each other. We have economies to build, generations to educate, language and conservation to protect, glass ceilings to shatter, communities to expand and relationships to build. Let us not seek the republican answer or the democrat answer, but the right answer. Let us not seek to fix the blame for the past. Let us accept our own responsibility for the future.

Frederica Freyberg:

For tonight’s “Capitol Insight,” a look with senate leaders at a contentious issue. But first this background. Wisconsin ranks number one in the nation for production of snap beans, number two for carrots and number three for potatoes. That volume vegetable production means the need for water to irrigate, especially in the Central Sands region in the middle of Wisconsin, where potato production is king. The use of high-capacity wells which withdraw more than 100,000 gallons of water per day is on the rise. That’s to the consternation of environmentalists concerned about lakes and streams running dry because of the large scale irrigation. And that concern escalated this week when the state senate passed a measure that relaxes regulations on high-capacity wells. Under the bill, the DNR would not have oversight on the wells if they are repaired, replaced or the property is sold. Senate Majority Leader Republican Scott Fitzgerald is chief author of the bill. We’ll be joined by the minority leader who opposes the measure in a few moments. But Senator Fitzgerald joins us now and thanks very much for doing so.

Scott Fitzgerald:

Good to be with you.

Frederica Freyberg:

So why did you author this bill?

Scott Fitzgerald:

Really I think because if you go back to last session, it was one of the few bills that we were unable to complete our action on. We passed it in the Senate. The Assembly passed it. There was an amendment added over there that we just couldn’t come to agreement on. So we adjourned. Both houses adjourned and we had not completed our action on this. So for me it was one of the things that we should have revisited right away and we did, and with the way that — just with the way that the bill was drafted and how we brought it together, I ended up being the sponsor of it.

Frederica Freyberg:

Well, now, you’re quoted as saying that this bill could have gone way further and this bill is not that.

Scott Fitzgerald:

That's true.

Frederica Freyberg:

How could it have gone so much further?

Scott Fitzgerald:

I think if you started to forecast exactly where you think that industry is going, where agriculture is going I should say, and there are other parts of the state where this could be an issue as well where there’s just a higher water need. Southern Door County is probably another area that is constantly scrutinized but for different reasons. Most of it is related to dairy, which is a big part of this puzzle as well. But in this instance I think based on some previous court rulings and the way that we thought we could gain support for this was to make sure that it was pretty much measured and it’s as you described. It’s really more about giving stability and kind of direction when it comes to how are we going to deal with these high-capacity wells in the future and should it be measured. And I think that this bill is exactly that. There’s a lot of fear talk involved in this. And there was a lot of it on the floor of the Senate, about lakes drying up, streams drying up, all of that fear talk. Listen. I understand that ultimately, you know, we all have this real concern about water. And that was pretty evident in the debate we had. But I think this bill is measured.

Frederica Freyberg:

But it exempts existing wells, basically, from oversight, so that’s measured?

Scott Fitzgerald:

It is measured, because anyone involved in this industry or in agriculture per se — and you just rattled off the numbers and what the impact it is for this state. I mean, a lot of these farmers, all they want to know is that, hey, if we make an investment, if we expand our operation, we want to make sure that there’s going to be water for that expansion. And, you know, they’re protectors of the environment. No one’s a better protector of the environment than I think agriculture and farming. And they have the same concerns. So I think — you know, this is measured and this moves us in the right direction.

Frederica Freyberg:

What have you heard from property owners who might have lakefront homes or something and their concerns about literally drying up their lakes?

Scott Fitzgerald:

They're very concerned about it. They’re worried about it. I’ve had it in my district for many, many years where a lake will be certainly in a position, for many different reasons that happens. And, you know, no one’s discarding that. One of the things that one of our brand new senators, Patrick Testin, who represents the 24th, insisted on was an amendment that included a study of the Central Sands area. We did adopt that amendment. So that will take place. But at the end of the day I think it’s still about certainty for the industry that continues to be a major, major player in our economy.

Frederica Freyberg:

On that amendment, though, my understanding is that it’s not a review of the impact of the entire region, just a portion of it.

Scott Fitzgerald:

Well, you can study the whole state if you want. We can talk about groundwater. We can talk about the science of hydrology all you want. This is I think focused on an area where, you know, there were — people that were vocal about it. This is the part of the state that they have been focused on and I think this responds to that. So I think it makes sense. You know, down the road you may want to do other studies. I said southern Door County is another area where there’s some concerns. Certainly in southeastern Wisconsin along the state line, I mean, there’s always been different areas of the state where I think you can do a study and see what’s really going on and is there something going on.

Frederica Freyberg:

Let me move to the budget as long as I have you here. We learned that the Joint Finance Committee, the budget writers, are going to start from scratch on transportation. What’s your response to that and what will you be looking for?

Scott Fitzgerald:

The way I would put it is we're working off the governor’s budget in all areas except transportation. And the Speaker and I kind of came to that agreement just this week. And the reason is I think you’re going to see some type of omnibus motion when it comes to transportation. There’s going to be a lot of things included in that and we’re negotiating that now. We’re trying to work through that ahead of the finance committee even so maybe we have something that we can present to the full caucuses that’s going to be embraced. I mean, right now for me and this caucus, I think gas tax increases are probably not going to be part of it or vehicle registration fee increases are not going to be part of it as well. So we’ve got to be creative. We’re thinking outside the box. We’re looking at the mega projects in southeast Wisconsin as well as the majors and taking all that into consideration and trying to come up with something long-term.

Frederica Freyberg:

On those southeast projects, you’d like those to proceed?

Scott Fitzgerald:

I do. I think all we’re doing is falling further behind the eight ball when it comes to those megas. We’re talking about $6 billion to be all-inclusive. We’ve got to focus on that and continue to make sure that that’s not neglected. If we fall behind on these, we’re never going to catch up.

Frederica Freyberg:

All right. We need to leave it there. Senator Fitzgerald, thanks very much.

Scott Fitzgerald:

Thank you.

Frederica Freyberg:

As we forecast, Senate Minority Leader Jennifer Shilling joins us in La Crosse. She opposes the bill that passed in the Senate on a party line vote. Thanks very much for being here.

Jennifer Shilling:

Thank you.

Frederica Freyberg:

So what is your opposition to this bill?

Jennifer Shilling:

Well, the waters of Wisconsin belong to everyone. I mean, that is just a paramount belief that we hold here with the public trust doctrine. And the idea that privatizing access to Wisconsin's water is deeply troubling. It becomes a fairness issue, first of all, but also some concerns with the Department of Natural Resources really lessening the regulation of those high-capacity wells and the renewal of permits. So the idea that a permit will be forever and will transfer with property ownership, there’s certainly a concern with neighboring properties that are not taken into account about the use of these high-capacity wells that can pump hundreds of thousands of gallons of water a day. And there’s certainly a way to find a balance. And this bill did not seek that middle ground and that balance that is really needed for all property owners here in Wisconsin.

Frederica Freyberg:

Wisconsin is a major producer of the kinds of crops that use these high-capacity wells for irrigation as well as large dairy operations that use them in their production, as you know. Now, Senator Fitzgerald calls this a pro-farm measure. What about that?

Jennifer Shilling:

Well, I think as you talk to some of the small family farms, that they are going to be concerned that these larger farms, the corporate farms, will be — will have that greater access to water. And so as streams are lessening the flow, as wells may be contaminated or drying up, we are seeing a drop in water level in lakes, and people’s property value is decreasing, that those are some concerns that we are also hearing about. So, again, I think through legislation that Senator Mark Miller has put forward that restores really a balance of how every ten years we could be looking at these permits for renewal and looking at what that greater impact is in the region on water levels.

Frederica Freyberg:

What have you heard aside from property owners from environmentalists about their concerns over this bill?

Jennifer Shilling:

Well, they are concerned about the contamination. They are concerned about Wisconsin really has an abundance of fresh, clean water here in the state. And as we look at the high-capacity well issue and certainly it is something in Central Sands, that is an area in central Wisconsin with a concern. But also the Driftless Area and Kewaunee County as well. They are having issues with the Karst. So this really as we look at central Wisconsin the issues that they have there, but water issues in general really is a statewide issue and access to clean drinking water.

Frederica Freyberg:

You said you think the bill undermines the public trust doctrine. How so?

Jennifer Shilling:

Well, that in the Constitution, again, those waterways belong to everyone. So the idea that someone with a permit can monopolize or on the floor one of my colleagues talked about stealing their neighbor’s water, that that idea just again I think flies in the face of that public ownership of the waterways and access to waterways.

Frederica Freyberg:

So would this measure if passed into law be subject to a test in the courts because of that?

Jennifer Shilling:

Well, and I think that that is something, if I can see around corners, that I would not be surprised, if this is something that is contested in the courts. We’ve had some previous cases dealing with access to the waterways in the state. So I fully intend — or fully expect that this possibly could be headed towards the courts.

Frederica Freyberg:

As long as I have you here, I wanted to ask you a couple budget items. What do democrats want to see on transportation now that we learned that Joint Finance will start from scratch on this?

Jennifer Shilling:

Well, we definitely have known that there’s been some tension among the majority party and the governor on transportation, that both parties have been asking for some stronger leadership from the governor on transportation. The idea now that the Finance Committee is going to go off of kind of the base budget rather than the governor’s recommendations, which was more borrowing and delaying projects, that I certainly think we can have a conversation about where we need to diversify a funding mechanism in this state. What we immediate to do to invest and have safe roads and bridges and a transportation network system that I think is important for all parts of the state, not just a certain region.

Frederica Freyberg:

Where are you on self-insurance for the state?

Jennifer Shilling:

Well, I've been very skeptical about that from the beginning, when the governor was kind of floating that idea, even last year, about looking for requests for proposals for that. And I think both sides of the aisle resoundly sounded like they rejected that idea when it was brought up by agency briefings last week, that it continues to have some — that people in both parties are skeptical about the savings that the governor had talked about and that it could actually cost the state $100 million and be disruptive to the insurance market here in Wisconsin. So I am highly skeptical that that is going to survive and move forward. In fact, I think that that issue is basically kind of dead.

Frederica Freyberg:

All right. We leave it there. Senator Jennifer Shilling, thank you very much for joining us.

Jennifer Shilling:

Thank you.

Frederica Freyberg:

Now to what may be some very bad news for some Wisconsin dairy farmers. Dairy processor Grassland Dairy’s Greenwood plant notified 75 Wisconsin farmers this week that it will cancel their milk contracts within the next 30 days. That’s because of a trade dispute surrounding ultrafiltered milk, which is used to make cheese and until recently was a big U.S. export to Canada duty-free. But blowback from Canadian farmers caused some provinces to implement a tariff on imports of that U.S. product. Grassland losing Canadian business has forced it to halt buying milk from dozens of Wisconsin farmers. Finally tonight, a “Look Ahead” to next week. That’s when we will look into the status of the “Farm to Table” program with our partners at WisContext.org. I’m Frederica Freyberg. Have a great weekend.

Announcer:

Funding for “Here and Now” is provided, in part, by Friends of Wisconsin Public Television.