Judge orders halt to group's radio ads in Wisconsin Assembly race

Original Post: jsonline
By: By Dave Umhoefer of the Journal Sentinel

"A judge's apparently unprecedented decision Saturday to order a halt to political ads before hearing from the ad's sponsors drew immediate criticism as an unfair restraint of free speech.

Jackson County Circuit Judge Thomas Lister defended his emergency order, which was requested via telephone Friday by state Democratic Party attorneys representing an Assembly candidate in a hotly contested race in western Wisconsin.

Lister will hold a hearing with all parties on the case this morning.

Lister said he was justified in issuing a temporary stoppage until a full court hearing could be held because state election laws might have been violated.

But the Coalition for America's Families, an independent group airing radio ads critical of Democrat Mark Radcliffe, said Lister's actions reeked of partisanship. The group was not notified of the court challenge until it learned of the ruling Saturday, said R.J. Johnson, spokesman for the coalition.

"If that's not banana republic, I don't know what is," Johnson said.

The emergency order, known as an ex parte decision, is without precedent nationally in political speech cases, according to Mike Wittenwyler, a Madison lawyer with long experience in such cases. The coalition tapped him Saturday to try to overturn the order.

Donald Downs, a University of Wisconsin-Madison political scientist and First Amendment expert, said Lister's approach was problematic because the group could suffer irreparable harm without even getting a hearing.

"He's not getting the full story," Downs said of Lister.

But the Democratic Party hailed Lister's emergency order as a "historic day for clean elections in Wisconsin" and asked all media to stop playing what it calls the false ads.

"The people of Wisconsin have had enough of these lies by outside groups," said Milwaukee lawyer Michael Maistelman, who along with David Halbrooks represents Radcliffe.

Maistelman made the judge's order public Saturday morning. The order said a formal court hearing would take place Monday on whether the emergency order should stay in place.

Later Saturday, Lister agreed to hold that hearing this morning, at the coalition's request. The radio spots in question were not set to resume airing until Monday, Johnson said.

Johnson said his group was prepared to defend the ad's various criticisms of Radcliffe's support for Healthy Wisconsin, a proposed health care overhaul. The ad says the plan would double Wisconsin's taxes to give benefits to out-of-state residents and illegal immigrants. It says the $15 billion plan would make Wisconsin the highest-taxed state in the country.

Radcliffe and a Republican, Dan Hellman, are competing for an open seat in the 92nd Assembly District. The outcome could help determine whether Republicans retain control of the Assembly.

Lister was appointed in July by Gov. Jim Doyle to fill a vacancy. He is a former Jackson County district attorney and private-practice attorney. Doyle's announcement cited Lister's "broad legal experience and commitment to fairness."

Johnson accused Lister of taking sides, citing campaign donations by Lister - before he was a judge - to Supreme Court candidates Louis Butler and Linda Clifford. The coalition ran ads criticizing both candidates.

But campaign records also show that Lister gave to Republican Terry Musser, the incumbent in the 92nd District who is not seeking re-election.

Lister said Saturday that he thought the emergency order was justified, considering that election day is so near.

One of the standards for issuing such an order is whether the plaintiffs can show a likelihood of success in proving - at a full court hearing - violations of law.

"The law, I think, called for it," he said of his order.

He declined to respond to allegations about partisanship, saying he could not do so while the case is pending.

Mark Jefferson, executive director of the Republican Party of Wisconsin, said the ruling had a chilling effect on free speech.
The Associated Press contributed to this report."