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Justice Prosser says $2.6M donation from John Doe defendants didn't influence him, because that was 4 years ago

Wisconsin Supreme Court Justice David Prosser said Thursday he didn’t have to recuse himself from a ruling that ended a secret investigation into coordination between Republican Gov. Scott Walker’s recall campaign and outside groups. Prosser acknowledged spending by some of those same groups helped him win re-election in 2011 but argued that was too many years ago to influence him now.

Prosser, a former Republican state Assembly speaker, has been forthcoming about his use of judicial powers to support Walker. He began his campaign for retention in 2011 by boasting that he would serve on the bench as a “compliment” (sic) to the agenda of Gov. Scott Walker and the state’s GOP majority.

Best known for his anger management issues — he allegedly put his hands menacingly around Judge Ann Walsh Bradley’s neck during a heated debate — has a history of putting politics ahead of the law. In 1979, while serving as Outagamie County District Attorney, he declined to prosecute a Green Bay priest accused of abusing young boys.

When the mother of two victims implored Prosser to file charges, he dismissed her.  “It would be too hard on the boys,” he said.

The Rev. John Patrick Feeney went on to abuse other children for many years before finally going to prison in 2004.

On the bench, Prosser has accused rape victims of lying to gain easier access to abortion services. Behind closed doors, he called Chief Justice Shirley Abrahamson a “bitch” and threatened to “destroy” her.

John Doe

The investigation that Prosser and the court’s three other right-wing justices voted to halt centered on whether Walker’s 2012 recall campaign illegally coordinated with Wisconsin Club for Growth and other conservative organizations on advertising during the 2012 recall — organizations that have given the justices a total of more than $8 million.

Prosecutors ran the probe as a so-called John Doe proceeding, Wisconsin’s version of a grand jury investigation where information is kept secret.

Prosser joined the majority opinion that ruled Walker’s campaign and the groups legally coordinated on so-called issue advocacy, a political term for communications that outline a candidate’s positions but don’t expressly call for his or her election or defeat.

Francis Schmitz, the lead prosecutor in the investigation, asked an unidentified justices to step down from the case due to the large sums of money they had received from the defendants. The court denied the request with no explanation the same day it issued the ruling halting the probe. That could give Schmitz grounds for an appeal to the U.S. Supreme Court.

Prosser released an opinion acknowledging that he was the justice whom Schmitz wanted out. He wrote that Schmitz alleged several groups under investigation had spent about $3.3 million to help get him re-elected in 2011. Prosser said he couldn’t name the groups because of secrecy orders still in place. But he acknowledged that some targets of the investigation “engaged in expenditures that, under all the circumstances, were very valuable to my campaign.”

But he also noted Schmitz didn’t argue there was anything wrong with that spending, only that since Prosser received help from the groups he shouldn’t participate in the case.

He said the public chooses who sits on the Supreme Court and it’s not up to prosecutors to permit justices to participate in cases. He noted that the spending took place four years ago, enough time to make recusal moot.

“If my recusal were now because of these expenditures — that is, four years after lawful independent communications were made to support my candidacy ... the special prosecutor will have found a way to undermine judicial elections in Wisconsin,” Prosser wrote.

He also said he has always tried to base his decisions on precedent, statutory language and policy determinations “so that people who disagree with the results of my decisions can focus on my legal analysis, rather than on their preference for different outcomes.”

He wrote that defendants can assert due process claims that a judge is biased but it’s all but unheard of for prosecutors to make those allegations.

He noted that Schmitz also argued that Prosser’s campaign treasurer also serves as campaign treasurer for one of the targets in the investigation and Prosser’s campaign was closely connected to Walker’s administration, noting Prosser’s campaign manager issued a news release in December 2010 promising to complement Walker’s office.

Prosser said his campaign treasurer has served as treasurer or bookkeeper for nearly 30 political candidates, and he doesn’t remember ever meeting her in person. She wasn’t a target of the investigation anyway, he wrote.

Schmitz didn’t immediately respond to an email from The Associated Press seeking comment.

Louis Weisberg contributed to this story.


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