Bruce Murphy
Murphy’s Law

The Tragedy of David Prosser

Recusal ruling adds to his image as the symbol of a dysfunctional Supreme Court.

By - Aug 4th, 2015 10:53 am
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Justice David Prosser

Justice David Prosser

David Prosser was a longtime Republican legislator who rose to Assembly Speaker and was pretty widely respected, but his tenure as Supreme Court Justice has become increasingly tragic. The court’s reputation and prestige has sunk ever lower and Prosser, who has served on the court since 1998, has become the poster boy for that decline. His most recent ruling, explaining (after the fact) why he didn’t recuse himself from the decision shutting down the John Doe probe of Gov. Scott Walker and third party advocacy groups, makes Prosser look all the more foolish. It’s almost like he can’t help himself from confessing his sins.

In his ruling, Prosser concedes that he became a justice under a certain shadow: “Because I came to the court with a partisan background in legislative service and did not have formal judicial experience, I have assumed that many persons would be skeptical about my opinions, especially if those opinions related to political controversies.” He notes that he therefore sought to ground his opinions in facts and avoid unsupported conclusions, but the resulting decisions were once rapped as showing “microvision, not macrovision” by legal observers in a Milwaukee Magazine story.  Prosser, who has never married and has no children, was also described in the story as “an absolutely Shakespearean figure” who haunts the court’s chambers at all hours and on off-days.

In June 2011, Prosser had his infamous altercation with Justice Ann Walsh Bradley where he was accused of choking her. It’s clear by all accounts, even Bradley’s, that Prosser applied no pressure with his hands, but both Bradley and Prosser agree his hands were on her neck. Prosser told officers investigating the incident that he “remembers the warmth on the side of Justice Bradley’s neck in his hands.”

It’s a bizarre phrase. Even in trying to offer a defense, Prosser indicts himself, letting investigators know his hands were on Bradley’s neck long enough to feel the warmth of her body.

Justice Patrick Crooks told investigators the problems of Prosser’s blow-ups (he “explodes and storms out of a room” three or four times a year, Crooks said) went back more than a decade. Crooks also told investigators that he and Bradley met with the court’s human resources officer as well as the director of the state courts, A. John Voelker, months before the incident “because they felt there was an escalation” in Prosser’s aggression.

Yet Prosser saw no need to apologize and essentially blamed the whole thing on Bradley, accusing her of sensationalizing the incident with “scurrilous charges.”

There is a similar, self-justifying tone to Prosser’s ruling explaining his refusal to recuse. On a human level, you can empathize with him and his honesty, but the more he tries to rationalize the deeper the hole he digs for himself.

All four justices who ruled that the John Doe probe should be shut down were heavily beholden to two parties to the case, the Wisconsin Manufacturers and Commerce (WMC) and Wisconsin Club for Growth; together the justices got $8.4 million in support from these two groups for their last campaigns. But no one was more beholden than Prosser, for whom the $2.6 million spent by these two groups represented an incredible 76 percent of all the spending to support his election.

Under the circumstances, Francis Schmitz, special prosecutor for the John Doe probe, filed a request that Prosser and Justice Michael Gableman (69 percent of spending to elect him came from the WMC and Club for Growth) recuse themselves from the Supreme Court decision on the legality of the Doe investigation, given their huge conflict of interest.

Gableman hasn’t bothered to respond, even though he wrote the majority decision. Prosser cares deeply about these issues and his reputation, and thus filed this ruling as to why he didn’t recuse.

The result is bizarre indeed. Prosser admits “it can be argued that” the support he received was “significant and disproportionate.” But we need to know, he stresses, that because of changes in Wisconsin’s campaign finance law (designed to reduce spending in Supreme Court races), he had no choice but to depend on third party spending. Thus he concedes Schmitz’s contention that the WMC and Club for Growth “were actively involved in the Justice Prosser re-election campaign,” but wants us to know this was “before my campaign manager was hired.”

That explanation, of course, tells us he knew exactly what these groups were doing on his behalf, raising enough small donations so Prosser could qualify for public financing of his campaign. In short, Prosser was coordinating his own campaign with these “independent” advocacy groups, which was exactly what the John Doe probe was accusing Walker of illegally doing. In deciding to rule on this issue, Prosser was simultaneously ruling that what Walker and what Prosser himself did was legal. And Prosser doesn’t see this as a conflict?

But we must understand, Prosser notes, that he couldn’t otherwise have run a successful campaign, which “was proven by the [primary candidate running against him] who failed to qualify for public funding. She had no money for television and her candidacy did not survive the primary.” In short, Prosser would probably have been defeated without the help from the third party groups whose legal fate he assures us he can objectively decide.

Prosser goes on to load the case against him, writing that he was the victim of “misrepresentations… made in the context of substantial hostility to Governor Walker over issues in which I had no part,” which meant he needed the spending by WMC and Club for Growth to combat this. The justice does a better case proving he has a conflict than Schmitz did.

It would be hard to imagine a situation that more closely fits the Caperton ruling case by the United States Supreme Court, which ruled that recusals are required when “there is a serious risk of actual bias——based on objective and reasonable perceptions——when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign…”

The impact of the WMC and Club for Growth spending on Prosser’s behalf wasn’t just significant and disproportionate, it was decisive, as Prosser clearly explains.

But Prosser argues his situation was different than Caperton, where the donation to the judge came when there was a “pending or imminent” case involving the donor. In his case, Prosser writes, “although one organization whose affiliate made expenditures [presumably the WMC] occasionally appears before the Wisconsin Supreme Court as amicus curiae, there was no likelihood that this organization would be a party in litigation before the court in the foreseeable future.”

No likelihood? But the WMC has been very interested in any cases with an impact on businesses, which is why it has spent millions to get justices it favors elected. In fact the WMC actually helped write the rules on recusals the court has adopted.

Moreover, even if Prosser couldn’t have foreseen the WMC would be a party to future cases he ruled on, the fact is that it did become such a party and given its significant and disproportionate influence on his election, Prosser should have recused.

Prosser, however, seems to think the issue isn’t whether he should recuse, but whether he should have relied on the WMC and Wisconsin Club for Growth to gain election. He piles on the almost agonized justifications for why he had to rely on these groups and then concludes with this: “The people of Wisconsin knew who they were voting for. The special prosecutor should be expected to live with the results.”

But the special prosecutor isn’t arguing that Prosser shouldn’t have been elected. Indeed, Schmitz is a longtime Republican who voted for Walker in the 2012 recall and might have voted for Prosser, for all we know. Schmitz is arguing that in light of how Prosser was elected, he should have recused himself from this particular case.

But Prosser is so consumed with justifying the way he was elected, he seems to miss the central point of Schmitz’s argument. Prosser’s ruling is more like a confession of how compromised and conflicted both he and the court he serves on have become. It’s certainly a tragedy for him, but more importantly for democracy in this state.

Categories: Murphy's Law, Politics

29 thoughts on “Murphy’s Law: The Tragedy of David Prosser”

  1. Dave says:

    What a little s***. Sounds like he’s the perfect caricature of today’s am radio GOP voter.

  2. Dave k says:

    I’ve many articles about how the decision is potentially very tainted by both recusal and legal interpretation issues. I can’t help but wonder if the state supreme court submarined their own decision so that it would, in fact, go to the federal supreme court where it would be overturned. Walker himself has said that if you follow him you will have no better friend, and if you oppose him you will have no worse enemy. Could it be that the justices don’t agree with their own decision but needed to provide themselves cover in this highly contentious political environment?

  3. PMD says:

    I’m reminded of the Massey case in West Virginia, where the rich mine owner spent his own money to elect someone to the state supreme court, and that person quickly ruled in the mine’s favor. All this outside money electing supreme court justices, it’s no good.

  4. Marie says:

    Justice Prosser “doth protest too much, methinks.”

    His role in this Shakespearean tragedy just gets more unseemly by the day. It will be even more tragic if this case does not reach the U.S. Supreme Court.

    Great in-depth reporting and commentary, Bruce. Some very eerie details.

  5. Bruce Murphy says:

    PMD, the West Virginia case you’re describing is Caperton, which Prosser references in his decision.

  6. PMD says:

    Oh sorry Bruce. Thanks.

  7. Jimmy says:

    Whiny bellyaching and specious reasoning. Self-serving rationalizations and oblivious contradictions. Ladies and gentleman, with a lobby-loaded stranglehold on justice (and sometimes even other justices), your utterly impartial, totally unbiased and absolutely un-nonobjective (sort of) Wisconsin Supreme Court mascot… David Prosser!

  8. Rich says:

    … would, in fact, go to the federal supreme court …

    IIRC, this will only happen if Schimel gets involved, right? (That ain’t likely to happen, though he did seem to be looking the correct direction on the open records issue, so maybe there is hope.) Schmitz can’t do anything anymore now that the John Doe is dead, can he?

    Separately, has the rather unprecedented ‘records destruction’ order been carried out or can that at least be appealed / stalled while waiting to see if the case does go higher?

  9. Bruce Thompson says:

    I had the same reaction reading Prosser’s letter: by describing how much he was dependent on the outside groups he strengthened the case for recusal. Also striking was his resentment against Bradley and Abrahamson.

    Finally the court needs some mechanism appoint others–such as retired justices or appeals court justices–to fill in for justices that need to recuse themselves. In this cases, all four justices in the majority had terrible conflicts of interest, which may be one reason the special prosecutor only asked two to recuse.

  10. BubBob says:

    Prosser is a Supreme Court Justice in the same way Olive Garden is an Italian restaurant.

  11. TF says:

    Here is a link to the Milwaukee Magazine article referenced here: http://www.milwaukeemag.com/2007/03/08/UnderFire/

  12. Observer says:

    I don’t remember Assembly Speaker Prosser as being widely respected. I thought he was thought of as being a partisan hack and people in Madison being surprised when Tommy Thompson appointed him to the Wisconsin Supreme Court. I’m getting older, so maybe my memory is slipping.

  13. TF says:

    @Observer: Was he not tight with Scott Jensen? I believe Jensen may have been majority leader, or #2, to Prosser while he was Speaker. At any rate, Jensen succeeded Prosser as Republican leader. If Prosser had stuck around for a few more years, I wonder if he would have come crashing down in the ethics scandal that claimed Jensen, Chvala and Burke.

  14. Kent Mueller says:

    The parallels between Caperton v. Massey couldn’t be more obvious, especially for Prosser and Gableman. Sadly, the entire state government is solidly in on the fix, while the Leg is trying to destroy the GAB There’s a faint glimmer of hope for the future in the fact that the midnight gutting of the Open Records Law was too much for even talk radio.
    For Schmitz to bring the Caperton aspect to the Feds would just give the WMC, CfG and their GOP cronies ammunition on the partisanship accusations. Barring a pang of conscience on someone’s part causing them to go to the US Justice Department with inside knowledge that could revive the Doe, there’s a long list of Walker cronies who broke the law and got away with it. That pang could happen –Walker loyalty is a one-way street, and someone might take out the sword they fell on for Scott — but seems highly unlikely. With all these twists and turns on John Does I & II it’s hard to keep track, but wasn’t the order to destroy evidence overturned in Fed Court, or is it still pending or being appealed? Where’s my scorecard? It was just here…
    An important side-note: Caperton was decided in 2009, Citizens United in 2010. The Wisconsin GOP, for one, feels that Citizens United means anything goes on campaign finance and may not be wrong, de facto not de jure (even though CU was wrongly cited in the deeply flawed Doe decision).
    Cindy Archer bringing a civil case clearly wrong on audio evidence can’t even revive the Doe at this point. Maybe nothing can. Seems the only thing that could bring down this tight-knit crew of criminals is their own hubris finally catching up, the state GOP turning on each other (there are signs) or a sufficiently alarmed electorate in 2016.
    One thing is certain, Eric O’Keefe has a pair of brass.

  15. tim haering says:

    Prosser was an arrogant poot as Speaker, I imagine the Supreme Years have done little to attenuate that trend. We need MN SUpreme Court — mandatory retirement at 70. Our old fart court has been running on their staffs’ youthful legs for at least a decade. Let’s restore vigor to the Court.

  16. Rich says:

    From the Milwaukee Magazine article linked in comment #11:

    “Former Justice Bablitch, who, along with Steingass, is one of Crooks’ campaign co-chairs, argued that WMC is out to “froth up their constituents, raise some money and perhaps elect some candidates favorable to their positions.”

    Prosser’s role aside, people have noticed for years that WMC has been working to stack the deck. Now it finally paid off.

  17. Barbara Cooley says:

    You must understand that it isn’t a conflict of interest unless there’s videotape of a party to the case handing Prosser a check and saying plainly that it’s payment for a favorable decision. Better yet, handing him a wad of bills. And that isn’t a conflict unless the check or wad equals at least $2 million, and Prosser is up for reelection within the next two months. Got that?

  18. wisconsin Conservative Digest says:

    More cheap BS from Bruce. Everyone there says that Bradley was behind her desk and when David refused to leave, she ran over to him with fist in the air and attacked. He stopped her by putting up his hands and blocked her. He did not move. If he had put his hands on her chest she would have charged him with sex assaulted so how is he supposed to stop her. Really cheap journalism again bruce,but most of the Lefty nuts love that crap. Grow Up.

  19. Observer says:

    Yeah Bruce, “EVERYONE” said that. lol

  20. PMD says:

    Yes Prosser is known for not having a temper and being perfectly reasonable at all times. He put his hands in the air and they just happened to find themselves on the neck of a woman who was violently attacking him with raised fists. Sure makes perfect sense. Righty nuts are hilarious.

  21. BT says:

    Come on, the majority of cases, if not the vast majority of cases that the state supreme court hears have clear political overtones, falling right into the left vs right political system we have in this state and in all 50 states. So, the same argument could be made for the justices who fall on the left side of things politically, on this case and on every case that has to deal with political issues. If you think Prosser should have recused himself, then all seven of them should’ve recused themselves and should on every case like it! Then we might as well just do away with having any sort of state supreme court.

  22. PMD says:

    That isn’t really sound logic BT. How many cases come before the justices and directly involve groups that spent hundreds of thousands of dollars to elect them a mere two or three years prior?

  23. wisconsin Conservative Digest says:

    If we are going to have elections, there will be campaign contributions and there will always be conflicts. Unions have give tons of money for years as has many other Left wing groups. Only the 527’s, Feingold’s invention had made it even and the left has been whining ever since. There is not any chance that there will be appointed judges, instead of elected in the future. People will not buy it so you better get use to what has been happening for almost 200 years.

  24. PMD says:

    I’m sure that’s what you have to tell yourself WCD. Otherwise you’d have to admit how wrong it is. And you would be singing an entirely different tune and we were talking about 4 liberal justices who received millions of dollars from third-party groups backed by George Soros.

  25. Wisconsin Conservative Digest says:

    I luv to hear Left WHINE, especially when the tables are turned on them. Wait till we get a Conservative DA to do a Doe on every Union and Left gang in state. Midinght raids

  26. PMD says:

    Cindy Archer was proven to be a liar about the raid she WHINED about. And nobody is whining. Just pointing out your Selective Partisan Outrage Syndrome (SPOS). Your spinning and dodging only confirms how real it is.

  27. TF says:

    @WCD: If you were a crime victim, how would you feel if the judge had gotten campaign help from the defendant?

  28. BT says:

    Oh come on, where do campaign donations come from, your opponents? Also, as I heard on WPR this morning of all places, when Joy Cardin (yes its true, I often tune in to hear her sneer at anything not left of center and of course Kathleen Dumb, too!) had her right/left week in review show on, which is the same show I believe where THIS article was referenced as well (it was definitely mentioned on one of WPR’s shows, but I’m pretty sure on Joy’s show) the “right” side commentator mentioned that you also must take into account that this insane John Doe went after pretty much every single conservative donor group, donor, supporter, etc of any significance in the state, so to then say “Well we targeted every single right wing donor group and donor in the state so now you have to recuse yourself, since (big surprise here!) you justices that lean to the right were given money by these groups!” Well who the heck else would give a right wing justice big donations? WEAC? AFL-CIO? As he said today on WPR, that’s like the kid who murders his parents now saying the court must have total mercy on him since he’s an orphan!

    Also, as far as that Cindy Archer tape goes, you do know that they released AN EDITED VERSION right??? There were more than enough witnesses to the ridiculous pre-dawn raids with tactics normally reserved for situations where the officers have good reason to be nervous about what kind of violent desperado type they might cash with, not some middle aged secretary who’s accused of posting some JSOnline comments on county time, yeah she’s a real threat that requires a SWAT team response at 5am! (and don’t forget to take her 14 yr old daughter’s laptop, cell phone and Ipad, maybe THAT’S where they’ll find the “Walker Smoking Gun!”)

  29. Observer says:

    TF, “Snap”!

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