Supreme Court rule for Florida property owner in land use case

WASHINGTON (Reuters) - In a victory for advocates of private property rights, the U.S. Supreme Court on Tuesday said a Florida property owner may be owed compensation from a government agency that declined to award him a development permit for his land.

In a 5-4 ruling with the court's five conservative justices in the majority, the court said Coy Koontz could pursue a property rights claim against the St. Johns River Water Management District.

The legal issue was whether the agency's action constituted a "taking" subject to compensation, under the so-called takings clause of the Fifth Amendment of the U.S. Constitution.

Writing for the majority, Justice Samuel Alito said a government may not condition a land-use permit on an owner giving up the use of some property absent a "nexus" and "rough proportionality" between the demand and the effect of the proposed land use. He said this applied even if the permit were denied, and the demand was for money.

"So long as the building permit is more valuable than any just compensation the owner could hope to receive for the right-of-way, the owner is likely to accede to the government's demand, no matter how unreasonable," Alito wrote. "Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them."

Joining Alito's opinion were Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

The decision was the culmination of a more than 18-year battle by Koontz and his late father over the development of their nearly 15-acre (six-hectare) parcel of land.

After Florida designated much of the parcel as protected wetlands, Koontz proposed to develop about a quarter of it and dedicate the rest for conservation, only to have local officials insist that he pay money to protect wetlands elsewhere.

Koontz said no, and a trial court awarded him $327,500 for being unable to use his property. Florida's Supreme Court then threw this award out, saying that because St. Johns never issued a permit and Koontz never spent money, "nothing was ever taken."

Justice Elena Kagan dissented from Tuesday's decision, joined by Justice Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Kagan said the majority "threatens to subject a vast array of land-use regulations, applied daily in states and localities throughout the country, to heightened constitutional scrutiny. I would not embark on so unwise an adventure."

The case was sent back to Florida courts for further proceedings.

The case is Koontz v. St. Johns River Water Management District, U.S. Supreme Court, No. 1447.

(Reporting by Jonathan Stempel and Lawrence Hurley; Editing by Howard Goller and Will Dunham)

Via Yahoo News!

Supreme Court Tells Working Women, You're on Your Own (OneWorld.net)

Jun 21 (New America Media) - Sitting in the majestic paneled courtroom in the U.S. Supreme Court three months ago, it did not take long to get that dreaded sense that Betty Dukes and 1.5 million other current and former women employees at Wal-Mart were not likely to prevail in their epic 10-year battle against the nation's largest private employer.

On Monday, that premonition came true. The Supreme Court threw out several lower-court rulings and declared that the women’s claims of massive, persistent sex discrimination were not sufficiently similar to merit class-action status. Ladies, you are on your own!

In order to get the case certified as a class action, Dukes and her fellow plaintiffs had introduced vast amounts of evidence supporting their claims of discrimination. Women made up two-thirds of the Wal-Mart work force, yet held only one-third of management jobs. Wal-Mart had a far smaller proportion of women managers when compared to the other major retailers. Indeed, in 1999 (the most recent date for which data were available) Wal-Mart had a lower percentage of female managers than its top competitors had in 1975.

Other evidence from Wal-Mart’s own personnel records showed that women were paid less on average than their male counterparts in all job classifications, despite having higher performance ratings and more seniority than their male co-workers.

This evidence, along with more than 100 declarations from women employees around the United States, convinced a San Francisco federal court to certify the class in 2004, allowing the women to sue en masse and giving them a fighting chance against the corporate giant. The Ninth U.S. Circuit Court of Appeals upheld the class certification three separate times, albeit by a narrow majority. Wal-Mart was thrilled when the pro–big business Supreme Court agreed to hear its appeal.

To no one’s surprise, the court sided with Goliath. Where Wal-Mart’s women workers and their lawyers see group inequality in the form of common practices and policies that place women in a disadvantageous position, the Supreme Court’s conservative, all-male majority could only see 1.5 million individual women with specific, unrelated gripes about how much Wal-Mart pays them, and individualized complaints about promotional opportunities they may have been denied.

In my notes of the hour-long oral argument this past March, the conservative majority’s skepticism comes across loud and clear. Justice Kennedy: “Let’s suppose that experts’ testimony, sociologists and so forth, establish that in industry generally and in the retail industry (in particular), women still are discriminated against by a mathematical factor of X. You have a company that has a very specific policy against discrimination, and you look at their — the way their employees are ... treated, and you find a disparity by the same mathematical factor X. Does that give you a cause of action?” Translation into common English: If everyone else does it, how in the world can a woman claim there’s discrimination at Wal-Mart?

This same question was asked, in one form or another, by each of the conservatives (except Clarence Thomas, who asked no questions during oral argument, as is his custom). In the end, they decided to give Wal-Mart a€” a company well known for its union-busting policies and for profitting off the backs of its low-wage workforce a€” the benefit of their doubt. In a corporation with 3,400 stores located in 50 states, with an express policy forbidding discrimination, and where managers had substantial discretion as to how much employees were paid or who was promoted, the court's majority held that the plaintiffs could not establish that their claims of discrimination had enough in common to warrant suing en masse.

The dissenting justices — Ginsburg, Sotomayor, Kagan and Breyer — strongly disagreed. They found the evidence convincing that “gender bias suffused Wal-Mart’s corporate culture” and noted that the company’s policy of giving supervisors great discretion to make personnel decisions “has long been known to have the potential to produce disparate effects.” The justices (three of whom are female) argued that the suit should go back to the lower court for further determination as to whether the class action could proceed. The majority dismissed the class altogether.

On March 28, 2011, the night before the Supreme Court argument, the American Association for University Women and the Alliance for Justice hosted a reception for Betty Dukes and the other Wal-Mart plaintiffs. These working-class women were thrilled to be in Washington and proudly introduced their family members, who stood by them on the eve of the most public day in their otherwise ordinary lives. The women had spent a decade fighting Wal-Mart because they had tired of second-class status in the workplace, and they refused to watch while their daughters and nieces and another generation of women were paid less and passed over for well-deserved promotions. Whatever happened, they had fought the good fight a€” and the support they felt that night sustained them, despite the odds.

After the oral arguments, the women of Wal-Mart stepped into the crisp Washington sunshine with their heads held high. Win or lose, their case had already brought about some major changes at the retailer. Two years after the lawsuit was filed, the company finally began posting management opportunities, and the “tap on the shoulder” system of promotions that had clearly favored male employees was eliminated. Later, the company restructured its pay system, erasing some (but not all) of the wage disparity. It also put in place training programs aimed at increasing the number of women managers. Only when it felt the heat of the class action was Wal-Mart willing to mend its ways.

What will happen to the women of Wal-Mart now that their class action has been disbanded? As a lawyer who was once part of the legal team that represented Betty Dukes, Chris Kwapnoski, Edith Arana and the other plaintiffs in this case, I can’t help but find the Supreme Court’s decision deeply disappointing, not just for the women but for all people who band together to challenge corporate practices that inflict widespread harm.

I know the plaintiffs are disappointed, too. But they haven’t come this far to give up now. The evidence of discrimination at Wal-Mart is not wiped out by this ruling, and although the case cannot proceed as a nationwide class action, these resourceful and determined women will regroup and continue their fight for justice and equality. They have no other choice.

NAM contributor Irma Herrera is a civil rights attorney who spent almost 15 years as executive director of Equal Rights Advocates, one of the main law firms in the Wal-Mart case.

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Supreme Court Tells Working Women, You're on Your Own (OneWorld.net)

Jun 21 (New America Media) - Sitting in the majestic paneled courtroom in the U.S. Supreme Court three months ago, it did not take long to get that dreaded sense that Betty Dukes and 1.5 million other current and former women employees at Wal-Mart were not likely to prevail in their epic 10-year battle against the nation's largest private employer.

On Monday, that premonition came true. The Supreme Court threw out several lower-court rulings and declared that the women’s claims of massive, persistent sex discrimination were not sufficiently similar to merit class-action status. Ladies, you are on your own!

In order to get the case certified as a class action, Dukes and her fellow plaintiffs had introduced vast amounts of evidence supporting their claims of discrimination. Women made up two-thirds of the Wal-Mart work force, yet held only one-third of management jobs. Wal-Mart had a far smaller proportion of women managers when compared to the other major retailers. Indeed, in 1999 (the most recent date for which data were available) Wal-Mart had a lower percentage of female managers than its top competitors had in 1975.

Other evidence from Wal-Mart’s own personnel records showed that women were paid less on average than their male counterparts in all job classifications, despite having higher performance ratings and more seniority than their male co-workers.

This evidence, along with more than 100 declarations from women employees around the United States, convinced a San Francisco federal court to certify the class in 2004, allowing the women to sue en masse and giving them a fighting chance against the corporate giant. The Ninth U.S. Circuit Court of Appeals upheld the class certification three separate times, albeit by a narrow majority. Wal-Mart was thrilled when the pro–big business Supreme Court agreed to hear its appeal.

To no one’s surprise, the court sided with Goliath. Where Wal-Mart’s women workers and their lawyers see group inequality in the form of common practices and policies that place women in a disadvantageous position, the Supreme Court’s conservative, all-male majority could only see 1.5 million individual women with specific, unrelated gripes about how much Wal-Mart pays them, and individualized complaints about promotional opportunities they may have been denied.

In my notes of the hour-long oral argument this past March, the conservative majority’s skepticism comes across loud and clear. Justice Kennedy: “Let’s suppose that experts’ testimony, sociologists and so forth, establish that in industry generally and in the retail industry (in particular), women still are discriminated against by a mathematical factor of X. You have a company that has a very specific policy against discrimination, and you look at their — the way their employees are ... treated, and you find a disparity by the same mathematical factor X. Does that give you a cause of action?” Translation into common English: If everyone else does it, how in the world can a woman claim there’s discrimination at Wal-Mart?

This same question was asked, in one form or another, by each of the conservatives (except Clarence Thomas, who asked no questions during oral argument, as is his custom). In the end, they decided to give Wal-Mart a€” a company well known for its union-busting policies and for profitting off the backs of its low-wage workforce a€” the benefit of their doubt. In a corporation with 3,400 stores located in 50 states, with an express policy forbidding discrimination, and where managers had substantial discretion as to how much employees were paid or who was promoted, the court's majority held that the plaintiffs could not establish that their claims of discrimination had enough in common to warrant suing en masse.

The dissenting justices — Ginsburg, Sotomayor, Kagan and Breyer — strongly disagreed. They found the evidence convincing that “gender bias suffused Wal-Mart’s corporate culture” and noted that the company’s policy of giving supervisors great discretion to make personnel decisions “has long been known to have the potential to produce disparate effects.” The justices (three of whom are female) argued that the suit should go back to the lower court for further determination as to whether the class action could proceed. The majority dismissed the class altogether.

On March 28, 2011, the night before the Supreme Court argument, the American Association for University Women and the Alliance for Justice hosted a reception for Betty Dukes and the other Wal-Mart plaintiffs. These working-class women were thrilled to be in Washington and proudly introduced their family members, who stood by them on the eve of the most public day in their otherwise ordinary lives. The women had spent a decade fighting Wal-Mart because they had tired of second-class status in the workplace, and they refused to watch while their daughters and nieces and another generation of women were paid less and passed over for well-deserved promotions. Whatever happened, they had fought the good fight a€” and the support they felt that night sustained them, despite the odds.

After the oral arguments, the women of Wal-Mart stepped into the crisp Washington sunshine with their heads held high. Win or lose, their case had already brought about some major changes at the retailer. Two years after the lawsuit was filed, the company finally began posting management opportunities, and the “tap on the shoulder” system of promotions that had clearly favored male employees was eliminated. Later, the company restructured its pay system, erasing some (but not all) of the wage disparity. It also put in place training programs aimed at increasing the number of women managers. Only when it felt the heat of the class action was Wal-Mart willing to mend its ways.

What will happen to the women of Wal-Mart now that their class action has been disbanded? As a lawyer who was once part of the legal team that represented Betty Dukes, Chris Kwapnoski, Edith Arana and the other plaintiffs in this case, I can’t help but find the Supreme Court’s decision deeply disappointing, not just for the women but for all people who band together to challenge corporate practices that inflict widespread harm.

I know the plaintiffs are disappointed, too. But they haven’t come this far to give up now. The evidence of discrimination at Wal-Mart is not wiped out by this ruling, and although the case cannot proceed as a nationwide class action, these resourceful and determined women will regroup and continue their fight for justice and equality. They have no other choice.

NAM contributor Irma Herrera is a civil rights attorney who spent almost 15 years as executive director of Equal Rights Advocates, one of the main law firms in the Wal-Mart case.

Want to Know More?

» OneWorld Guide to Gender Issues Worldwide

ALL THE LATEST GLOBAL HEADLINES

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Supreme Court blocks suit against Wal-Mart

Supreme Court: Wal-Mart case too bigvar cnnWindowParams = window.location.toString().toQueryParams();if(typeof cnnWindowParams.video != "undefined") {if(cnnWindowParams.video) {cnnLoadStoryPlayer('bestoftv/2011/06/20/exp.nr.toobin.wal.mart.suit.cnn', 'cnnCVP1', '640x384_start_art', playerOverRide, T1);}} else {$('cnnCVP2').onclick = function() {if ($$('.box-opened').length) {$$('.box-opened').each(function(val){Element.fireEvent(val, 'click');});}cnnLoadStoryPlayer('bestoftv/2011/06/20/exp.nr.toobin.wal.mart.suit.cnn', 'cnnCVP1', '640x384_start_art', playerOverRide, T1);};$('cnnCVP2').onmouseover = function() {$('cnnCVP2').className = 'cnn_mtt1plybttn cnn_mtt1plybttnon';};$('cnnCVP2').onmouseout = function() {$('cnnCVP2').className = 'cnn_mtt1plybttn';};}A giant class-action lawsuit was not justified, the high court rulesThe ruling eventually could affect nearly every private employer, large and smallScalia: No "significant proof that Wal-Mart operated under a general policy of discrimination"The plaintiffs can file new lawsuits that are narrower in scope

Washington (CNN) -- The Supreme Court put the brakes on a massive job discrimination lawsuit against mega-retailer Wal-Mart Stores Inc., saying the plaintiffs had not shown justification for sweeping class-action status that could have potentially involved hundreds of thousands of current and former female workers.

The 5-4 ruling Monday -- which addressed the claims in the lawsuit only in terms of whether they supported such a huge a class action -- was a big victory for the nation's largest private employer, and the business community at large.

The high-profile case-- perhaps the most closely watched of the high court's term -- is among the most important dealing with corporate versus worker rights that the justices have ever heard, and could eventually affect nearly every private employer, large and small.

"On the facts of the case," wrote Justice Antonin Scalia for the majority, the plaintiffs had to show "significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here."

He added, "In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction."

While this particular class action has effectively ended, the individual plaintiffs could band together and file a series of smaller lawsuits aimed at individual stores or supervisors.

Four more liberal justices agreed this particular class should not proceed to trial, but criticized the majority for not allowing the female workers to move ahead with their claims under a different legal approach.

"The court, however, disqualifies the class from the starting gate," wrote Justice Ruth Bader Ginsburg.

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"Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores," said Ginsburg, arguing the plaintiffs' claims had some validity. Establishing that delegation of discretion "would be the first step in the usual order of proof for plaintiffs seeking individual remedies for companywide discrimination." She was supported by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The company said it was pleased with the court's decision.

"As the majority made clear, the plaintiffs' claims were worlds away from showing a companywide discriminatory pay and promotion policy," said Gisel Ruiz, a company executive vice president. "Wal-Mart has a long history of providing advancement opportunities for our female associates and will continue its efforts to build a robust pipeline of future female leaders."

At issue was whether as many as 1.6 million current and former female Wal-Mart employees could make a unified claim of systemic discrimination, which they say has occurred over the past decade, at least. The plaintiffs alleged women were paid less than, and were given fewer opportunities for promotion than, their male counterparts. They sought back pay and punitive damages against the world's largest retailer.

A divided 6-5 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals last year had allowed the combined, multiparty litigation to move ahead to one trial, where a verdict against the company could result in tens of billions of dollars in damages.

The Supreme Court ruled only on whether the original lawsuit should be handled as a class action, instead of lower courts potentially being flooded with thousands of individual discrimination claims against the company. If the justices had ruled against Wal-Mart, permitting class-action status, it could have put severe pressure on the company to settle the claims out of court.

The lawsuit alleged the company's "strong, centralized structure fosters or facilitates gender stereotyping and discrimination." The workers who brought the suit also said women make up more than 70 percent of Wal-Mart's hourly workforce but in the past decade made up less than one-third of its store management.

The litigation was filed in 2001 by Betty Dukes, a store greeter in Pittsburg, California, along with five of her co-workers from different facilities. She and another of the original six plaintiffs attended the oral arguments in Washington in March.

"I brought this case because I believe that there was a pattern of discrimination at Wal-Mart, not just in my store, but I believe that it is across the country," she told CNN at the court. "Since we have filed our lawsuit in 2001 I have heard from numerous women telling me basically the same story as mine of disparate treatment in lack of promotion as well as in lack of pay."

The company protested the size of the class action, which it called "historic" in scope, saying it would be too onerous to litigate. The company has more than 4,300 U.S. facilities in 41 regions.

Most workplace discrimination lawsuits fail to reach a court for resolution, according to data compiled by the federal Equal Employment Opportunity Commission.

In 2003, when the Wal-Mart litigation was in its preliminary court stages, about 27,000 sex discrimination claims nationwide were resolved administratively by the Equal Employment Opportunity Commission, little changed from the prior decade. More than 57 percent -- some 15,000 claims -- were ruled administratively to have "no reasonable cause" and those usually were dismissed.

Just over 10 percent were judged to have merit, resulting in a total of $94.2 million in settlements, or $34,200 on average per case, according to the data, which include all such claims, not just those involving Wal-Mart.

The case was also a clash of dueling cultures -- some have dubbed it the Battle of Bentonville vs. Berkeley, for the corporate headquarters and the home to the liberal legal team outside San Francisco where the lawsuits first percolated.

While the high court split on whether there was a common policy of discrimination at Wal-Mart, all nine justices agreed on the key questions of damages: the class-action claim lacked merit, said the court, because the plaintiffs sought individual awards of back pay for the women. Such "monetary relief" claims could not be made under the current class-action certification rules, said the ruling.

"Class counsel has planned for various outcomes before the Supreme Court -- including this one -- and have put in place plans to assist as many women Wal-Mart class members as possible with their claims," said a joint statement issued by a group representing the plaintiffs. "The fight for justice will continue."

Declaring class-action status for the lawsuit would have raised the financial and judicial stakes considerably, since more individual plaintiffs could have joined, creating greater potential liability for the company. In federal courts, such certification must generally follow well-established principles to ensure a lawsuit does not become so large as to be impracticable, and does allow the parties to fairly represent the common interests of the larger class of plaintiffs.

Wal-Mart also has been accused in separate lawsuits of discrimination against African-American truck drivers and workers with disabilities. In 2001 the company settled 13 lawsuits by paying out $6 million. It employs 1.4 million people in the U.S. alone.

The case is Wal-Mart Stores Inc. v. Dukes (10-277).

CNN

Wisconsin Supreme Court Challenger Seeks Statewide Recount

Associated Press

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Refusing to concede defeat, Wisconsin Supreme Court challenger JoAnne Kloppenburg asked election officials Wednesday for a statewide recount in her flagging upset bid against Justice David Prosser.

Final county tallies compiled last week showed Prosser held a 7,316-vote lead over the little-known state attorney. The margin is within one-half of 1 percent of the total votes cast, entitling Kloppenburg to a statewide recount at local governments' expense.

The Government Accountability Board confirmed in a statement Wednesday that it is moving forward with a statewide recount at Kloppenburg's request.

"We have been preparing for a recount since Election Night," Kevin Kennedy, director and general counsel for GAB, said in the statement.

Kennedy said the recount would likely begin next week, starting with a teleconference meeting for county clerks on Monday.

Prosser's campaign pressured her not to seek a recount, saying there was no way she would find 7,000 votes and a recount would be costly for taxpayers.

State elections officials said the recount could begin as early as next week, barring any court challenges.

Prosser's campaign has pressured Kloppenburg to give up, saying she can't make up 7,000-plus votes and local government workers across the state would spend hundreds of hours working on the recount, ringing up a huge tab for taxpayers. Prosser's attorney has promised to challenge any recount request.

Kloppenburg went into the campaign as a heavy underdog against Prosser, a 12-year court veteran and former GOP legislator. But she got a boost after her supporters and pro-labor forces redefined the race as a referendum against Republican Gov. Scott Walker and Walker's contentious collective bargaining law. They hoped a Kloppenburg win would tilt the court to the left and set the stage for the justices to strike down the law.

Turnout for the April 5 election shattered expectations. Initial returns showed Kloppenburg had defeated Prosser by about 200 votes. But the Waukesha County clerk then stepped forward and said she had failed to report 14,000 votes. Those votes flipped the race for Prosser.

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Supreme Court Hears Emissions Regulation Case

AP2011

A detail of the West Facade of the U.S. Supreme Court is seen in Washington, Monday, March 7, 2011. (AP)

In the most significant global warming case to reach its front doors, a skeptical Supreme Court appears poised to block a major lawsuit brought by states and environmental groups against five large power companies for supposedly creating a public nuisance because of carbon dioxide emissions.

Tuesday's arguments revealed a high court bench that strongly questioned the ability of the states to bring the lawsuit and seemed to think that the federal government, through the Environmental Protection Agency, is the proper entity to regulate air pollution through the Clean Air Act.

"

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Supreme Court Turns Away New Appeal From Guantanamo Detainees

Associated Press

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WASHINGTON -- The five remaining Chinese Muslims who are being held at Guantanamo Bay lost their latest bid Monday to get the Supreme Court to hear their case. 

The justices turned away a plea from the five detainees, who have been held at the U.S. naval base in Cuba for nearly nine years. 

The detainees had previously declined an offer to be resettled in the tiny Pacific nation of Palau, where six other Chinese Muslims, or Uighurs, have gone to live. It is not clear why the five refused to go to Palau, or to a second, unidentified country that the Obama administration has said was willing to take them. 

Justice Stephen Breyer, writing for three of his colleagues, said he agreed with the court's decision not to hear the case because of the two countries' offers and "the government's uncontested commitment to continue to work to resettle" the Uighurs. Justices Ruth Bader Ginsburg, Anthony Kennedy and Sonia Sotomayor joined Breyer's opinion. 

Justice Elena Kagan, who worked on the case while serving in the Justice Department, did not take part in the court's action Monday. 

The detainees wanted the court to consider the question of whether a judge can order detainees released into the United States. 

Eleven other members of the Turkic Muslim ethnic group from China's west have left Guantanamo for Albania, Bermuda and Switzerland. 

The U.S. has agreed for years that the Uighurs are not enemy combatants. 

China wants the Uighurs sent home, but they argue -- and the administration agrees -- that they could be tortured if they are sent to China. 

The U.S. has undertaken extensive diplomatic efforts, aggressively opposed by China, to find the Uighurs a home.

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Tally gives Wisconsin Supreme Court race to conservative justice

s campaigns had no immediate comment.

STORY: Wis. top court election adds fuel to 'powder keg'Kloppenburg faced an uphill fight against Prosser, a 12-year court veteran and former Republican Assembly speaker. But she got a boost in the weeks leading up to the election as her supporters worked to turn anger against Gov. Scott Walker and the union rights law against Prosser.

The law, which Walker wrote, strips most public sector workers of nearly all their collective bargaining rights. It also requires them to contribute more to their health care and pensions, changes that will result in an average 8 percent pay cut.

Walker, a Republican, has said the law is needed to help balance the state budget and give local governments the flexibility they need to absorb deep cuts in state aid. Democrats see it as an assault on unions, which are among the party

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Dems Furious After Vote Change Gives Lead to Wisconsin Supreme Court Justice

AP

April 5: Supporters for Wisconsin Supreme Court candidate JoAnne Kloppenburg cheer while watch election results in Madison, Wis.

Democrats in Wisconsin were crying foul Friday after a significant vote-count change in the hotly contested Supreme Court election gave the conservative incumbent the lead in a race that could decide the fate of the state's new divisive collective bargaining law.

Waukesha County Clerk Kathy Nickolaus said it was "human error" that resulted in more than 14,000 votes from her predominantly GOP county not being reported on Tuesday. The corrected totals gave conservative Justice David Prosser a 7,500-vote lead, according to unofficial tallies, and undid the earlier likelihood of a recount. 

Rep. Peter Barca, Democratic Assembly minority leader, said Nickolaus' revelation "raises disturbing questions, particularly in light of her partisan history."

"The new Supreme Court race vote totals she 'discovered' during canvassing not only swung the election but also put the race just barely past the amount needed to trigger a state-financed recount," he said in a statement.

"It doesn't instill confidence in her competence or integrity," he said, adding that the mistake could warrant an investigation.

Liberal groups also howled in protest.

"There is a history of secrecy and partisanship surrounding the Waukesha county clerk and there remain unanswered questions," Scot Ross, director of the liberal group One Wisconsin Now, said in a statement.

But Republican state Senate Majority Leader Scott Fitzgerald told Fox News he believes Nickolaus made a mistake. 

"The canvas process in Wisconsin is pretty routine after an election happens," he said, "and, in the many that I have been involved in over the years, certainly there are changes to the vote totals that come in on election night."

Fitzgerald noted that Grant County had added more than 100 votes for challenger JoAnne Kloppenberg after the initial count.

Prosser had faced a surprisingly strong challenge from Kloppenburg, a little-known assistant state attorney general who drew last-minute support -- and significant get-out-the-vote efforts -- from opponents of Gov. Scott Walker's push to limit union power as part of a budget-balancing plan.

"I like to think that I have survived a nuclear firestorm of criticism and attack and smear," Prosser told Fox News Thursday night. "As far as I'm concerned, if these results hold up, I will be the winner."

Prosser added that he is waiting out the process.

"I'm not conceding, and I'm not congratulating. And I'm not claiming victory," he said.

Prosser said the race should not be considered a referendum on Walker or any legislation that may end up at the court.

The fate of that law, which is facing legal challenges, could end up before the state Supreme Court, where Prosser or Kloppenberg could tip the balance. On Thursday, the state attorney general sought expedited review from the state's high court.

Opponents of the law had hoped a Kloppenburg victory would set the stage for the high court to strike it down.

Fitzgerald said he didn't want to predict the outcome of  the law regardless of who's in the justice's seat, but he would be pleased if Prosser held the post.

"I wouldn't want to make any presumptions on what the Supreme Court might do. But, certainly, I think, you know, having Justice Prosser there, I think he has been a strong voice for the law, and a strong voice for Wisconsin for many, many years, and, I obviously, I'm certainly hopeful that the vote totals hold up for Justice Prosser, after the canvas is completed," he said.

Nickolaus apologized Thursday for the error, saying the most significant error occurred when she entered but did not save totals from the city of Brookfield, a suburb of Milwaukee.

"This is not a case of extra votes or extra ballots being found," Nickolaus said. "This is human error, which I apologize for."

Kloppenburg's campaign manager, Melissa Mulliken, demanded a full explanation of how the error occurred and said an open records request for all relevant documents would be filed.

Ramona Kitzinger, the vice chair of Waukesha County Democratic party who observed the canvass, said she is satisfied the numbers are now correct.

"We went over everything and made sure all the numbers jibed up and they did," she said.

The Government Accountability Board, which is in charge of overseeing Wisconsin's elections, will review Waukesha County's numbers to verify the totals, said agency director Kevin Kennedy.

Kennedy said it was unfortunate the clerk didn't double-check the data before releasing it to the media. Kennedy also said such mistakes are known to happen but that "we just don't see them of this magnitude."

Nickolaus has faced criticism before for her handling of elections and previously worked 13 years for a state GOP caucus that was controlled by Prosser when he was Assembly speaker in 1995 and 1996. She was given immunity from prosecution in a 2002 criminal investigation into illegal activity by members of the caucus where she worked as a data analyst and computer specialist.

The corruption probe took down five legislative leaders, all of whom reached plea deals. Nickolaus resigned from her state job in 2002 just before launching her county clerk campaign.

Nickolaus also has been criticized by the Waukesha County Board for her handling of past elections and lack of oversight in her operations.

An audit of Nickolaus' handling of the 2010 election found she needed to take steps to improve security and backup procedures, including not sharing passwords. The audit was requested after the county's director of administration said Nickolaus had been uncooperative with attempts to have county experts review her systems and confirm backups were in place.

The Associated Press contributed to this report.

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Costly Political Battle Heats Up Over Wisconsin's Supreme Court Seat

FoxNews.com

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The highly emotional and costly political battle over Wisconsin's Supreme Court seat was supposed to be over on Wednesday. Election day was Tuesday and a record number of voters came to the polls, but once all ballots were counted, the race was considered too close to call. It was a very different outcome than had been originally predicted, before the election became part of the bigger budget battle dividing Wisconsin.

It was two months earlier when state Senate Democrats left Wisconsin to avoid voting on Gov. Scott Walker's controversial budget repair bill, which would've ended collective bargaining for state union workers. The vote couldn't pass without a quorum, so remaining Republican state senators broke the bill down to remove the fiscal parts of it, and were then able to pass what was left of the bill on their own. Democrats sued, saying their conservative partners violated the state's open meetings law.

On Tuesday, for the first time since the walkout, Senate Democrats rejoined Senate Republicans in the chamber and passed the fiscal part of the bill. Both sides agreed a plan was needed to make up a $137 million shortfall in the state budget. On Wednesday, a triumphant looking Gov. Walker signed the bill into law.

"What we're really talking about is a balanced budget act...We're finally seeing the complete package come through," he said.

The bitter partisan battle over the bill, which drew thousands of protestors to the state capitol, spilled its way onto the hotly contested fight for a seat on the state's highest court. Many believe the court battle over collective bargaining will make its way up to the Wisconsin Supreme Court, and both sides hope for a court that's sensitive to their side. For many, the election was a referendum on Gov. Walker's budget bill and epic fight with the unions. Walker's opponents said they wanted to send a message.

In Wisconsin, supreme court justices get elected and serve for ten years. One justice, David Prosser, who was once a Republican state representative, is coming to the end of his term.

Right now the court is slanted conservative, 4-3. If liberals succeed in getting their candidate, Democrat JoAnne Kloppenburg, elected to replace Justice Prosser, the ideological balance will shift to the left.

Kloppenburg is supported by labor unions and liberals, who propelled her from an obscure second place. Justice Prosser called the campaign the most difficult assault on a person's character in the history of the judiciary.

Both sides have had millions of dollars spent by supporters on a barrage of attack ads against their opponents. At the end of a nail biting tight election on Tuesday, with Kloppenburg ahead by just 204 votes, the race was considered too close to call. About 1.5 million people cast ballots. A recount is considered imminent.

"We have to count this as a tremendous victory for the progressive movement because 6 weeks ago we were all debating whether Prosser would win by 30 or 40 points and that has all changed," said Democratic State Representative Kelda Roys.

"I think the bigger frustration is the amount of money coming from out of state," Walker said. "I think it's pretty clear that you have two different world's in this state, you've got a world driven by Madison and and a world driven by everybody else out across the majority of the state of Wisconsin."

Wisconsin's Government Accountability Board Director Kevin Kennedy expects to see more fireworks once the ballot recounts begin. Battles over the ballots could also end up in court. "The scrutiny that will come with this one will be unprecedented," Kennedy said.

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Supreme Court blocks Texas execution using new drug cocktail

Update at 2:56 p.m. ET: In its brief ruling, the court gave prosecutors 30 days to respond to the defense petition, after which the Supreme Court will decide if the appeal has merit. Foster's defense team said they are encouraged by the ruling."It's not a common procedural posture," Maurie Levin, a University of Texas law professor and one of Foster's attorneys, said. "We're very happy for the stay and that the Supreme Court will be looking at important issues raised."

Cleve Foster, 47, blames his conviction on lawyers he didn't trust, what he called false testimony from police and prosecutors he contends misled jurors. "To me, they were pretty much pulling stuff out of their hats," he told the AP previously from death row.

Earlier posting: The U.S. Supreme Court has blocked an execution in Texas that was to be the state's first with new drug cocktail.

Cleve Foster was to have been executed this evening for killing a Sudanese woman in Fort Worth in 2002.

It would have been the first Texas execution since the state switched to pentobarbital in its lethal three-drug mixture, the Associated Press reports.

In its ruling today, the high court agreed to reconsider its January order denying the 47-year-old's appeal. That appeal had raised claims of innocence and poor legal help during his trial and early stages of his appeals.

Foster's lawyers also argued that Texas prison officials violated administrative procedures when they announced the switch to pentobarbital from sodium thiopental.

There is a national shortage of sodium thiopental, which has been used already in executions in Oklahoma and Ohio.

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Key Wisconsin race for supreme court judge too close to call

The Wisconsin supreme court election that has turned into a proxy battle over the union-curbing policies of Republican Gov. Scott Walker is too close to call, with the conservative-leaning incumbent only a few hundred votes ahead of a little-known challenger backed by unions.

With 99% of the vote in, Justice David Prosser has only a few hundred vote lead over JoAnne Kloppenburg, a state attorney general.

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Wisconsin Supreme Court Race a Matter of Turnout

Associated Press

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MILWAUKEE -- Wisconsin's Supreme Court race could come down to one factor: whether voters in Republican parts of the state can match the passion of voters in the Democratic strongholds of Dane and Milwaukee counties.

City clerks in Madison and Milwaukee say voting interest has been remarkably high in a race Democrats have tried to turn into a referendum on a polarizing union-rights law pushed by Republican Gov. Scott Walker. Madison's city clerk predicted voter turnout of 60 percent, an unheard-of level for an April ballot.

Such trends would seem to favor the challenger, Assistant Attorney General JoAnne Kloppenburg, who has presented herself as a left-leaning alternative to incumbent Justice David Prosser. For the conservative Prosser to win a second, full 10-year term, he'll likely need strong turnouts in traditionally Republican counties.

Incumbent justices typically have a large advantage over their generally lesser-known opponents. However, Democrats have tried to tap into the anger and discontent that flooded Madison in February and March as Walker pushed his plan to strip most public workers of nearly all their collective bargaining rights.

Tens of thousands of protesters swarmed the Capitol for weeks, only to see the law pass anyway last month. The law is on hold as legal challenges make their way through the courts -- and many expect the state Supreme Court could eventually decide the issue.

Although Prosser has told The Associated Press he doesn't necessarily agree with the law, bitter Democrats began portraying him as a Walker clone and Kloppenburg as a liberal alternative.

The strategy appears to have worked -- at least in some pockets of the state.

For example, Madison city clerk Maribeth Witzel-Behl said 7,190 absentee ballots had already been submitted by Monday, outpacing the absentee count from the presidential primary of February 2008. While the ballots haven't been counted, high turnout in the liberal city is likely to Kloppenburg's benefit.

Witzel-Behl predicted a 60 percent turnout, which would be a record high for an April election since Madison started keeping records in 1984. Madison also has hotly contested mayoral and county executive races, but political observers suspect the statewide race is driving many voters' passions.

The race is also on track to be the most expensive high court race in Wisconsin history. Groups backing both candidates have been spending $300,000 to $400,000 per day on TV ads, and that continued Monday, according to a group that studies judicial spending.

While neither candidate's campaign would discuss internal polling numbers, one political expert said the frenzied pace of last-minute spending suggested a tight race. Mordecai Lee, a professor at the University of Wisconsin-Milwaukee, said groups usually cut their losses and save their money if polls show their candidate significantly behind.

"Clearly that's not happening here," Lee said.

Regardless of the outcome, Walker has said he won't interpret Tuesday's results as an endorsement or indictment of his policies.

Governors don't often weigh in on state Supreme Court races, but this one has been unusual. Outside groups have poured at least $3.1 million into a race that wasn't initially expected to be competitive. Prosser won a nonpartisan February primary with 55 percent of the vote, while Kloppenburg finished second out of four candidates with just 28 percent.

Kloppenburg's campaign surged, however, during weeks of protests that drew up to 85,000 people to the state Capitol in opposition to Walker's plan.

The seven-member court is officially nonpartisan, but Prosser is seen as part of a conservative four-justice majority. A win by Kloppenburg would tilt the court's ideological balance to the left.

Statewide, voter turnout was expected to be about 20 percent, in line with elections that have featured a contested state Supreme Court races in the past decade, according to the Wisconsin Government Accountability Board.

Wisconsin has a recent history of costly Supreme Court races. Outside groups spent a record $3.4 million here in 2008, according to the Brennan Center for Justice, a New York University program that tracks spending on judicial races. After a quiet 2009 race and no race in 2010, spending this year reached $3.1 million through Sunday, and a burst of last-minute ads was expected to bring the total to $3.7 million.

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Supreme Court Upholds Arizona School Vouchers

AP

The Supreme Court has ruled in favor of an Arizona school voucher program that critics say improperly directs taxpayer funds to religious schools.

Monday's 5-4 ruling expands long-standing court precedents that citizens don't have standing to legally challenge taxes they don't like simply because they're taxpayers. 

The minority on the court maintained that since the case involved claims of a violation of religious freedoms, that the Arizona plaintiffs didn't need to demonstrate a specific personal injury.

The decision, written by Justice Anthony Kennedy and joined by the court's more conservative members, preserves Arizona's school voucher program that is funded by tax credits offered to state taxpayers. Most of the students who use the voucher money attend religious schools.

Opponents of the Arizona system filed a lawsuit claiming the $500 tax credit, available to all individual taxpayers, designed to help pay for private education violates the First Amendment, which prohibits the government from establishing any religion in the United States. The high court in 1968 said taxpayers didn't need to show that they had been personally harmed when lodging an Establishment Clause claim.

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Supreme Court leaves in place Ariz. school tax break

"Monday's decision was a major victory for the Arizona Christian School Tuition Organization, which had intervened in the case to support the Arizona tax-credit program. The Obama Justice Department also had sided with Arizona and had argued that the 1968 case should be narrowly construed. "

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Supreme Court leaves in place Ariz. school tax break

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