Tag Archives: david prosser

Justice Prosser’s long career overshadowed by one heated moment

David Prosser filled a lot of roles: prosecutor, legislator, state Supreme Court justice. But he’s likely to be best remembered for getting into a physical altercation with another justice that brought national ridicule to Wisconsin’s highest court.

Prosser, 73, faded into retirement Sunday, two days after Gov. Scott Walker appointed attorney Dan Kelly to replace him. Prosser, typically quiet and reserved in public, didn’t respond to requests from The Associated Press for an interview about his career.

He leaves a legacy of public service marred by the moment he put his hands around Justice Ann Walsh Bradley’s throat during an argument. He told investigators he was defending himself, but the incident bared a long feud between the court’s conservative and liberal justices and brought embarrassment to the court that still remains.

“As I traveled around the country people would ask me about him and the incident,” said Janine Geske, a Marquette University law professor and former state Supreme Court justice whom Prosser replaced on the high court in 1998. “It really was a tragic and horrible incident for the court. He bears responsibility for what happened.”

Prosser graduated from the University of Wisconsin-Madison law school in 1968. He worked as an attorney for the U.S. Department of Justice and as a lecturer at the Indiana University-Indianapolis law school during the late 1960s and early 1970s.

He was elected to the state Assembly as a Republican in 1978 after a stint as Outagamie County district attorney. He served nine terms in the body, rising to speaker. A baseball fan, he helped lead the push to provide funding for Miller Park, the Milwaukee Brewers’ stadium. The lifelong bachelor opposed removing criminal penalties for consenting adults who have non-marital sex.

Sen. Tim Carpenter, a Milwaukee Democrat and out gay man who served in the Assembly with Prosser, described him as willing to listen to anyone.

“It was a different era back then,” Carpenter said.

Spencer Black, a former Democratic representative who also served with Prosser, said Prosser grew more partisan as he gained power, becoming more acerbic in his remarks and less accommodating.

“He changed quite a bit,” Black said.

Then-Gov. Tommy Thompson appointed Prosser to the high court in 1998 after Geske resigned. He ran unopposed for a full 10-year term in 2001.

The justices are officially nonpartisan, but Prosser was in the bloc of conservative justices that controls the court. In fact, during his 2011 campaign for retention, he publicly vowed to support Walker’s agenda from the bench.

The court’s conservatives delivered a huge win for Walker last year when they halted Milwaukee prosecutors’ investigation into whether his campaign illegally coordinated with outside groups, declaring nothing improper took place. Those same outside groups had given many millions of dollars to the conservative justices who ruled in their favor, casting a giant shadow of doubt over the blindness of justice in Wisconsin.

Over the years a feud developed between the conservatives and liberal justices Shirley Abrahamson and Bradley.

Emails show that in February 2010 Prosser called Abrahamson a “bitch” and threatened to destroy her as the justices were debating a request to remove conservative Justice Michael Gableman from a case. Prosser said the liberals goaded him into making the offensive remarks, presumably by disagreeing with him.

Prosser faced a bitter re-election in the spring of 2011 against challenger JoAnne Kloppenburg, whose supporters worked to transform the race into a referendum on Walker, who had just signed his signature law restricting public workers’ union rights after weeks of protests. Prosser ultimately defeated Kloppenburg following a statewide recount.

That same year he placed his hands around Bradley’s throat during an argument in chambers over the timing of the release of a divided opinion upholding Walker’s union restrictions. Prosser later said he inadvertently touched her neck in self-defense after she charged him, but said he didn’t squeeze. Bradley confirmed Prosser didn’t choke her and no one was charged. Prosser’s fellow conservatives recused themselves from deciding whether Prosser was guilty of ethics violations, leaving the court short of a quorum to decide the issue.

The incident became fodder for late-night comics — UW-Madison law professor Howard Scheweber declared the court a laughingstock — and to this day chalk writings still mysteriously appear on Capitol square sidewalks advertising free chokes from Prosser.

Carpenter said the incident reflects how the fight over Walker’s public union restrictions changed everyone in the Capitol.

“(The law) just polarized everybody,” Carpenter said. “There wasn’t anybody in the building who wasn’t forced into different camps. I hold that against all of us.”

 

Half on Walker’s list for Wisconsin Supreme Court owe him

More than half of the applicants vying to replace retiring Wisconsin Supreme Court Justice David Prosser already owe their jobs to Gov. Scott Walker — and now he could tap one of them for the state’s highest court.

Walker released the names of 10 of the 11 applicants May 20, including attorney Andrew Brown of River Falls; Madison attorney Claude Covelli; state appellate judges Mark Gundrum, Brian Hagedorn and Thomas Hruz; Jefferson County Circuit Judge Randy Koschnick, who is the father of Walker’s chief staff attorney; Marinette County Circuit Judge James Morrison; Wisconsin Public Service Commission Chairwoman Ellen Nowak; Milwaukee attorney Paul Scoptur; and Madison attorney Jim Troupis.

Walker’s office says an 11th applicant requested confidentiality. Wisconsin law says the state must withhold an applicant’s identity if the person requests confidentiality in writing, unless they become a final candidate.

Walker expects to appoint a replacement by the time Prosser retires on July 31. It will be the Republican governor’s second appointment to the state’s highest court. He appointed Justice Rebecca Bradley in October after Justice Patrick Crooks died in his chambers. Walker had appointed Bradley to judgeships twice previously, and she won re-election in April.

The governor similarly could tap a previous appointee this time around — he’s appointed at least six of the applicants to their positions.

Gundrum was elected to the state Assembly as a Republican in 1998, serving alongside Walker. Gundrum was elected to the Waukesha County Circuit Court in 2010, and Walker appointed him to the 2nd District Court of Appeals in Waukesha in 2011.

Hagedorn was Walker’s chief legal counsel until Walker appointed him to the 2nd District Court of Appeals in 2015. He previously worked in the state Department of Justice, as a Milwaukee attorney and as clerk to Justice Michael Gableman.

Walker appointed Hruz to the 3rd District Court of Appeals in 2014. Hruz, previously a Milwaukee attorney, also clerked for Prosser.

As for Morrison and Troupis, Walker appointed both to circuit judgeships — Morrison in 2012 and Troupis in 2015. Both were in private practice prior to their appointments. Troupis’ appointment was slated to continue until August, but he stepped down in May.

Walker also appointed Nowak to chair the Public Service Commission. She was legal counsel and chief of staff for the Assembly speaker and was deputy director of School Choice Wisconsin, an organization advocating charter and voucher schools.

Several of the applicants have bid for seats on the Wisconsin Supreme Court before.

Troupis and Covelli, a practicing attorney in Wisconsin for 43 years who specializes in insurance law, both lost out to Bradley for Crooks’ seat. Covelli then launched a brief campaign to compete against Bradley, ending it two months later.

Koschnick ran for the Wisconsin Supreme Court in 2009, unsuccessfully challenging Justice Shirley Abrahamson. He’s been Jefferson County Circuit Court judge since 1999 and was previously a public defender for the county. His daughter, Katie Ignatowski, is Walker’s chief legal counsel.

Ignatowski and Walker’s deputy legal counsel both have recused themselves from the appointment process, according to Walker’s office. Walker’s chief of staff, Rich Zipperer, and former deputy legal counsel Andrew Hitt will serve in their place.

Scoptur works as an injury attorney in Wauwatosa and as an adjunct law professor at Marquette University. Brown lives in River Falls but works at a firm in Minnesota, focusing on construction disputes.

Associated Press writer Todd Richmond contributed to this report.

 

Supreme Court deals Walker a blow on education case

A divided Wisconsin Supreme Court dealt Gov. Scott Walker a loss yesterday in upholding a ruling that preserves the independence of the state’s elected education secretary and denies the governor power of veto over the Department of Public Instruction.

The court’s conservative majority was split on whether to overturn its unanimous ruling from 20 years ago that solidified the state superintendent’s independence as head of the Department of Public Instruction. The high court’s 4–3 decision rejects arguments made by Republican Attorney General Brad Schimel and upholds two lower court rulings.

The state constitution “requires the Legislature to keep the supervision of public instruction in the hands of officers of supervision of public instruction,” Justice Michael Gableman wrote for the majority. “To do otherwise would require a constitutional amendment.”

Superintendent Tony Evers has opposed overturning the law, saying the case was about preserving the office’s role as a nonpartisan constitutional officer in charge of implementing and overseeing education policy.

Evers hailed the ruling, calling it a “victory for public education and the future of our state.”

“More than anything else, this ruling provides much needed stability for our schools and the students they serve,” Evers said in a statement. “I hope we can now get back to focusing on what works best for our kids.”

Walker’s spokesman Tom Evenson did not address the court’s ruling directly in his reaction. Instead, he said Walker would “continue to advocate for policies that prioritize student success.”

“Governor Walker is dedicated to challenging the status quo when it impedes the ability of parents, school boards, and students to get the best educational outcomes,” Evenson said.

Justice Department spokesman Johnny Koremenos said the agency is reviewing the decision and has no immediate comment.

The case focused on a 2011 law passed by the Republican-controlled Legislature and signed by Walker that gave the governor veto power over administrative rules pursued by the state superintendent. That raised questions about whether the law amounted to a violation of the 1996 state Supreme Court ruling that the office was independent of the governor’s control.

The state Justice Department argued that if the court’s 1996 ruling prohibits the Legislature from making a change to administrative rules, then the decision should be overturned. The department’s attorney argued that if the state superintendent is unhappy with the governor’s decision relative to rules, he can always go back to the Legislature and try to get it reversed.

The law is unconstitutional because it does not allow DPI and the secretary “to proceed with their duties of supervision without the Governor’s, and in some circumstances the Secretary of Administration’s approval,” Gableman wrote.

The 2011 law required all state agencies to get approval from the governor before drafting new administrative rules — the legal language that enacts agency policies and laws passed by the Legislature. Under previous law, the rules were written by state agencies and reviewed by the Legislature, but not the governor, before taking effect.

Parents and members of the teachers’ union, with backing from organizations representing school administrators and school boards, filed a lawsuit in 2011 challenging the portion of the law that gives the governor the ability to block rules at DPI. They argued that the law gives the governor more power than the independently elected state superintendent, contrary to the court’s 1996 ruling.

The 1996 ruling arose from a case challenging then-Gov. Tommy Thompson’s attempt to transfer powers from DPI into a new Department of Education under the control of the governor. At the time, the court unanimously ruled that the state superintendent is in charge of education policy in Wisconsin and that the governor and Legislature can’t give “equal or superior authority” to anyone else.

Those supporting the governor’s position and opposing Evers include School Choice Wisconsin, a group that advocates for taxpayer-funded vouchers to attend private schools, and the state chamber of commerce.

Gableman was joined in the majority ruling by Justices David Prosser, Anne Walsh Bradley and Shirley Abrahamson. Those dissenting were Chief Justice Pat Roggensack and justices Annette Ziegler and Rebecca Bradley.

The dissenting justices argued that those challenging the law had not proven that it was unconstitutional.

Vote Jean Kies for Milwaukee Cty. Circuit Court

We support attorney Jean Kies campaign to replace Judge Michelle Ackerman Havas on the Milwaukee County Circuit Court. She’s experienced, respected and not involved in partisan politics.

Gov. Scott Walker appointed Havas to the judicial position at stake — the same one he used to jumpstart the career of now Supreme Court Justice Rebecca Bradley.

Bradley and Havas are friends who represent the same political and ideological interests — and have the same benefactors.

But Havas doesn’t appear as savvy as Bradley. While Bradley disavows that the GOP and its Koch-backed  PACs will hold any sway over her judicial decisions, Havas seemed to acknowledge the role she could play on the court for the state’s executive branch.

At a Republican fundraiser for Bradley, Havas spoke after high-ranking Wisconsin party officials finished patting themselves on the back over the successes of Walker and his Legislature during the last session.

“I want to thank all the leadership here who has helped me and is helping me to get my name out,” Havas said, according to a transcript of the speech. “You all do such wonderful work, and obviously everything that is happening in the executive branch is all very important.”

Those words were reminiscent of Judge David Prosser’s vow in 2012 that he could be counted on to support Walker. It was inappropriate then, and it is now.

Kies, on the other hand, says she’s maintained political independence in anticipation of someday rising to the bench. She’s beholden to no one, as demonstrated by her bipartisan endorsements.

We strongly support Kies in this race, not only for her understanding that the judiciary is by necessity apolitical, but also for the scope of her legal experience.

She’s practiced law under her “own shingle,” as she puts it, rather than at a large law firm. As a result, she’s worked on a broad range of cases and with clients from all backgrounds and walks of life, she says.

Kies estimates that since graduating from Marquette University Law School about 25 years ago, she’s taken on more than 1,000 civil and 1,000 criminal cases. She says the diversity of her legal background makes her an exceptional judicial candidate.

Kies’ legal partner is her husband Lewis Wasserman. He says that she brings more to her cases than knowledge, skill and fairness. He contends that she has the right temperament — a gift for making defendants and plaintiffs alike feel satisfied with the way their cases have been handled.

Kies deserves the opportunity to prove what she can do on the bench. We urge readers to vote for her on April 5.

Right-wing money starts pouring in for Rebecca Bradley’s Supreme Court bid

Outside groups have started pumping money into Wisconsin’s Supreme Court race.

The conservative Wisconsin Alliance for Reform has spent at least $234,660 on a statewide ad buy supporting Justice Rebecca Bradley, according to research released by Justice at Stake and the Brennan Center for Justice.

Wisconsin Alliance for Reform released a 30-second issue ad this week touting Bradley’s merits. A supporter and donor of Gov. Scott Walker, Bradley is a former president of the Milwaukee chapter of the Federalist Society, a far-right libertarian lawyers group. She’s also belonged to the Thomas Moore Society, a conservative Catholic legal group, and the Republican National Lawyers Association.

She began her legal career protecting corporations from liability lawsuits and doctors from malpractice suits.

Groups don’t need to report spending on such ads to the state. Justice at Stake and the Brennan Center for Justice compiled a spending estimate using files television broadcasters have uploaded to the Federal Communications Commission.

The researchers didn’t find any groups spending on behalf of Bradley’s opponents, Milwaukee County Circuit Judge Joe Donald and 4th District Court of Appeals Judge JoAnne Kloppenburg. They also didn’t have an estimate of how much Wisconsin Alliance for Reform may have spent on cable buys; the FCC doesn’t track political ads on cable systems.

Justice at Stake is a national nonpartisan group that focuses on keeping courts impartial. The Brennan Center for Justice is a nonpartisan institute in the New York University School of Law.

Liberal group One Wisconsin Now said its research shows Wisconsin Alliance for Reform has spent closer to $400,000 on ads. One Wisconsin Now Deputy Director Mike Browne said the group queried every Wisconsin television station and cable system. He said the group didn’t search for groups supporting Bradley’s opponents.

Outside groups have spent millions trying to influence the last three Supreme Court races, according to estimates from government watchdog group Wisconsin Democracy Campaign. They spent $4.5 million ahead of the 2011 election between incumbent Justice David Prosser and Kloppenburg; $1.2 million in the 2013 race between incumbent Justice Pat Roggensack and challenger Ed Fallone; and $169,000 in last year’s race between incumbent Justice Ann Walsh Bradley and challenger James Daley. That race was far quieter and drew far less attention than the two previous contests, however.

Bradley, Donald and Kloppenburg have a Feb. 16 primary, with the top two advancing to the April 5 general election. Wisconsin Supreme Court races are officially nonpartisan, although Bradley has ties to Republican Gov. Scott Walker, who appointed her as a Milwaukee County judge and an appellate judge before tapping the inexperienced justice to replace Justice Patrick Crooks after he died suddenly in his chambers last September.

Justice at Stake spokeswoman Laurie Kinney said outside spending in state Supreme Court races raises questions about justices’ impartiality and whether they feel beholden to groups that support them.

“If you have a justice who arrives on the bench courtesy of millions of dollars of spending by an outside interest group, what is the effect going to be on that person’s professional performance?” Kinney said. “It’s deleterious to the administration of justice.”

Wisconsin Alliance for Reform describes itself on its website as a “coalition of concerned citizens and community leaders committed to creating greater economic opportunities for Wisconsin families.” Asked why the group had chosen to back Bradley, spokesman Chris Martin said by email that she embodies the leadership and courage the group expects from justices.

That raises the question of where Bradley has demonstrated courage and leadership. Walker appointed Bradley, who has only about four years of experience on the bench, to every judicial position that she’s held in her career, which dates back only four years.

Despite her glaring lack of expeience, Bradley was so certain he would appoint her to the high court that she registered a website as a Supreme Court justice before the applications were even due. To most people, that suggests a crony-style inside track on the job rather than anything resembling leadership and courage. 

“The Bradley campaign and the Republican Party are essentially one and the same,” said a statement from Milwaukee County Circuit Court Judge Joe Donald’s campaign manager, Andy Suchorski, at the time of her appointment.

More outside spending looks to be on the way. Scott Manley, a lobbyist for Wisconsin Manufacturers and Commerce, the state’s largest business group and a staunch Republican ally, told the Wisconsin State Journal last month that the group plans to get involved in the race. The group spent nearly $2 million on ads supporting the conservative-leaning Prosser and Roggensack, according to Wisconsin Democracy Campaign. The group spent nothing to help Daley.

Manley didn’t immediately return a telephone message The Associated Press left at his office. In September Wisconsin Manufacturers and Commerce Vice President Jim Pugh called Bradley “the leading conservative for the high court,” suggesting the group’s spending this time will go to support her.

Justices contort prior rulings to stop John Doe appeal, protect Scott Walker and reward donors

“What a mess this court has wrought!” Wisconsin Supreme Court Justice Shirley Abrahamson declared in the latest chapter in the state’s John Doe legal saga.

On Wednesday, the Wisconsin Supreme Court’s majority contorted itself to find a new way to protect both Scott Walker and the court’s biggest supporters — not to mention itself — following its decision in July rewriting the state’s limits on money in politics and ending the “John Doe” investigation into Walker’s campaign coordinating with dark money groups.

Wednesday’s ruling was supposed to be a straightforward decision on a motion to reconsider, in light of additional evidence, that Walker and his allies had violated the campaign finance laws that the court upheld in July.

The court denied that motion, but then (in a lengthy unsigned opinion) went further, rewriting its July decision to fire Francis Schmitz, the Republican special prosecutor who led the investigation, making it harder for him to challenge the justices’ conflicts-of-interest by appealing the case to the U.S. Supreme Court.

Those conflicts arise from the fact that the same groups that coordinated with Walker’s campaign were among the majority’s biggest financial supporters, raising concerns under U.S. Supreme Court precedent about whether the justices should have heard the case at all.

“The miscalculation I made in this investigation was underestimating the power and influence special interest groups have in Wisconsin politics,” said Schmitz, a retired U.S. Army colonel and former counter-terrorism prosecutor.

The bipartisan John Doe probe has become a rallying cry for national organizations looking to overturn limits on money in politics, and for years has been subject to a legal and media assault, funded in part by the same groups that bankrolled the election of the Wisconsin Supreme Court’s conservative majority.

“My career in the military and as a federal prosecutor fighting violent criminals and terrorists did not fully prepare me for the tactics employed by these special interest groups,” Schmitz said in a statement.

Justices protect their supporters

Wednesday’s decision was “extraordinary,” said Janine Geske, respected former Wisconsin Supreme Court justice who now teaches at Marquette Law School. “To somehow remove the lawyer representing one of the parties after the opinion

(has been issued) is extraordinary,” she told the Center for Media and Democracy.

“It puts the case in a very odd situation, removing counsel so he cannot file an appeal,” Geske said, with no clarity for how other prosecutors might be able to intervene.

The court’s July opinion upheld a lower court decision holding that Schmitz had been lawfully appointed as special prosecutor in 2013. Justice Prosser, writing separately in concurrence, had taken the position that Schmitz’ appointment was improper.

Yet after Schmitz asked the court to reconsider its decision on grounds it had overlooked coordination of express advocacy, the majority instead revised its ruling to rescind his authority and to block him from continuing involvement in the case.

“The special prosecutor’s authority to proceed would still be intact if he had not brought a motion for reconsideration,” Justice Abrahamson pointed out in her dissent. “Does this make sense? Not to me.”

The court’s rewriting of its decision and firing Schmitz might be viewed not only as the majority protecting their biggest financial supporters and Scott Walker, but also as an effort to protect themselves.

That’s because the court’s four-justice majority was elected to the bench with at least $10 million in spending from precisely the same groups accused of coordinating with Walker, and precisely the same groups that were under investigation in the John Doe — namely, Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce.

By rescinding Schmitz’ appointment as special prosecutor, it makes it much harder for him to challenge the justices’ conflicts-of-interest before the U.S. Supreme Court.

Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce have been the dominant spenders on Wisconsin Supreme Court races in recent years, in most cases outspending the justices themselves. In 2011, the groups and their offshoots together spent $3.7 million supporting Justice David Prosser, five times as much as Prosser’s own campaign, in an election decided by a mere 7,000 votes. Three years before, WMC’s spending in support of Justice Michael Gableman had come in at five-and-a-half times what Gableman’s own campaign spent, and WiCFG also surpassed the Gableman campaign’s spending, in a race he won by 20,000 votes.

In other words, if it weren’t for the millions spent by WiCFG and WMC, Justices Gableman and Prosser might not be on the bench at all. Schmitz specifically asked the two to step aside in light of this apparent conflict-of-interest, but they declined.

“This extraordinary action is, as far as I can determine, unprecedented and could have the effect of insulating the court’s decision from further review,” said Susan Crawford, an attorney at Cullen Weston Pines & Bach.

The Wisconsin Supreme Court’s majority might have reason to be scared about the prospects of a U.S. Supreme Court appeal. In the 2009 Caperton v. Massey decision, the nation’s highest court held that constitutional due process requires that judges recuse themselves in cases like this one.

When a donor “had a significant and disproportionate influence on the outcome” of a judge’s election, and when an election was decided by a small number of votes, among other factors, the risk of “actual bias is sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented,'” the U.S. Supreme Court held.

Although the Wisconsin Supreme Court barred Schmitz from representing the state in further proceedings, it may not necessarily bar an appeal to the U.S. Supreme Court on Caperton grounds. If the justices should have recused in the first place and not heard the case at all, then a subsequent decision from those same justices canning the special prosecutor should have no merit.

But rescinding Schmitz’ appointment means he would have to work on the appeal for free. As special prosecutor, Schmitz is compensated for his legal fees by the State of Wisconsin. Without that appointment, Schmitz would be working without pay, making it exceptionally difficult to mount a complicated U.S. Supreme Court appeal.

“The Court, in terminating the special prosecutor’s appointment immediately, knew that its decision would compromise the ability of the special prosecutor — the sole party representing the prosecution — to seek review from the U.S. Supreme Court,” Crawford said.

Court defies its own rationale

Prosecutors in the John Doe case alleged that Walker’s campaign had violated the state’s campaign finance disclosure laws by asking donors to secretly funnel money to “independent” groups that don’t disclose their donors, and then telling the groups how to spend those funds. The Walker administration then prioritized the policies favored by those secret donors, records obtained in the investigation showed.

In its highly controversial decision from July, the Court declared that electoral “issue ads” that stopped short of expressly saying “vote for” or “vote against” a candidate were outside of the scope of Wisconsin law. Therefore, Walker’s campaign couldn’t have violated any laws by coordinating with dark money groups on “issue ads,” even if most viewers would understand the “issue ad” as designed to influence an election.

Only ads expressly advocating for the election or defeat of a candidate were subject to regulation, the opinion stated, and therefore only coordination between campaigns and express advocacy groups is illegal.

So when the Republican Special Prosecutor asked the court to reconsider its July ruling because there was evidence that the Walker campaign had coordinated with groups engaged in express advocacy, you might think the court would allow the investigation to proceed.

You would be wrong.

In Wednesday’s unsigned decision, the court’s majority declared that Schmitz had not raised evidence of express advocacy coordination early enough in the proceedings — which is false — so the court would not consider it now.

Dissenting from the majority ruling, Justice Abrahamson noted that “unlawful coordination, not merely unlawful coordinated issue advocacy, has been the focus of the John Doe investigation from the very beginning.” The Aug. 10, 2012, petition to commence the John Doe, for example, “focuses on coordination, and is not limited to express or issue advocacy.”

“I continue to believe that the investigation was justified,” Schmitz said. “The voters of Wisconsin have a right to know the identity of large donors, corporate and individual, which coordinate with campaign committees.”

(Even the court’s July decision was highly questionable. Schmitz pointed out that on the same day that the Wisconsin Supreme Court issued its decision declaring issue advocacy could not be regulated, the Third Circuit Court of Appeals noted that the U.S. Supreme Court has consistently held that disclosure requirements are not constitutionally limited to express advocacy, declaring “there is not a rigid barrier between express advocacy and so-called issue advocacy.”)

Has the majority silenced prosecutors forever?

The majority’s “rationale simply seems invented to justify the pre-ordained desired result,” Justice Abrahamson wrote in dissent.

With Schmitz off the case, it is unclear who can represent the prosecution moving forward. The court previously denied motions by other members of the prosecution team to intervene in the case, even for the limited purpose of preserving evidence.

It is not clear who will implement the court’s mandate that prosecutors compile and catalogue all of the evidence gathered in the probe, and provide notice to each individual investigated in the case.

And, by blocking the other John Doe prosecutors from becoming parties to the case, it becomes more difficult for the prosecutors to defend themselves from the barrage of mysteriously funded lawsuits filed by Wisconsin Club for Growth’s Eric O’Keefe and other opponents of campaign finance limits. The majority suggested that prosecutors might be able to access some evidence but how and under what circumstances are unclear.

This is particularly important because the actual evidence in the court record appears to undermine many of the allegations made in those lawsuits — which, in turn, appear to echo dubious assertions from right-wing blogs rather than actual facts.

Even some Wisconsin Supreme Court justices have fallen for the right-wing rhetoric. Abrahamson’s dissent noted that, in July, “The majority opinion and Justice Ziegler’s concurrence to the majority opinion relied on facts that were not in the record, citing blogs and media reports as authoritative sources on how the search warrants were executed.”

Both Gableman’s majority opinion from July and Ziegler’s concurrence relied on factually challenged articles from the Franklin Center for Government and Public Integrity’s “Wisconsin Watchdog” website, which produced literally hundreds of stories attacking the John Doe since 2013 but without routinely disclosing that it was launched and funded by Eric O’Keefe, WiCFG’s director and the chief plaintiff in the lawsuits challenging the probe. Franklin Center’s president until earlier this year, Jason Stverak used to work for O’Keefe. Its director of special projects John Connors is also president of Citizens for a Strong America, another group involved in the investigation and which was funded entirely by WiCFG. Connors also quietly left Franklin Center earlier this year.

The justices’ unquestioning endorsement of right-wing bloggers’ unsubstantiated claims about unconstitutional “pre-dawn, armed, paramilitary-style raids” were repeated in lawsuits by groups tied to the investigation — and subsequently undermined by actual evidence.

When former Walker aide Cindy Archer filed a federal lawsuit against prosecutors earlier this year, she claimed that the Wisconsin Supreme Court had “found” that prosecutors “subjected targets to ‘paramilitary-style home invasions conducted in the pre-dawn hours’ in retaliation for their free speech” (when in fact the court hadn’t “found” anything, but instead repeated unsubstantiated online rhetoric).

Those allegations fell apart after prosecutors released a recording of the 2011 search, which showed a cordial and professional investigation.

This matters, Abrahamson noted, because prosecutors are still being sued by the groups and individuals under investigation. The factual record in the John Doe case is necessary so prosecutors can mount a defense based on facts rather than the heated rhetoric advanced by the blogs and media outlets tied to the groups under investigation. But the prosecutors have been barred from intervening in the case.

The factual record can also help the public get a better sense of what was at stake in the decision — but the court has gone out of its way to keep most filings secret.

“The general rule is that court filings are presumptively open for public inspection,” Abrahamson wrote. “Placing filings under seal is the exception to the rule. In the face of virtually total secrecy of filings since July 16, 2015, the public cannot understand the basis for the four justices’ decisions,” noting that the sealings “raises significant First Amendment, state constitutional, statutory, and common law issues, and may be challenged as erroneous.”

“Why the secrecy?,” she asked.

Brendan Fischer is general counsel for The Center for Media and Democracy, an award-winning non-partisan government watch-dog group. Click here to donate.

Walker draws fire for appointing donor to Supreme Court

As predicted, Gov. Scott Walker has appointed Appeals Court Judge Rebecca Bradley to complete the term of deceased Justice Patrick Crooks on the state Supreme Court. Crooks, who had announced his plan not to seek another term in September, died suddenly on the job on Sept. 21.

The appointment of Bradley, a Walker donor who had never served on the bench until Walker appointed her to a circuit court position three years ago, has outraged critics from both sides of the aisle. They had urged Walker to either leave the position vacant until the next election in April or appoint someone who was not already an announced candidate in the race, as Bradley was.

The circumstances surrounding Bradley’s appointment make it a first. Appeals Court Judge JoAnne Kloppenburg and Circuit Court Judge Joe Donald are also announced candidates, but neither sought Walker’s appointment, as Bradley did.

Walker is unlikely to have appointed either of them due to politics.

Judicial races in Wisconsin are nominally nonpartisan, but the reality is that conservatives and liberals — and well-funded outside groups — coalesce around the candidates they favor and spend millions helping to elect them.

Still, “it is unprecedented for a Wisconsin governor of any party to appoint a declared judicial candidate to the Supreme Court this close to an election,” said Senate Minority Leader Jennifer Shilling. “This power grab sets a terrible precedent and doesn’t pass the smell test.”

Critics say that Walker’s appointment of Bradley gives the relatively inexperienced candidate a big boost over her more-seasoned competition. It also turns the race into a referendum on Walker, according to leaders on both sides of the aisle.

“The fact that Walker twice named her to judgeships before makes her ‘Walker’s candidate,’ Kloppenburg said in a statement.

Walker’s first appointment of Bradley helped her narrowly win her first judicial race to retain the job he gave her. Also helping her victory were $167,000 in contributions from the Koch brother’s Club for Growth and the Republican Party.

Bradley began her legal career protecting corporations from liability lawsuits and doctors from malpractice suits. She moved on to commercial, technology and intellectual property law before Walker lifted her from obscurity by seating her on a circuit court bench in 2012.

Although Crooks was considered a swing vote on the court, he ruled with the Republican majority 80 percent of the time. Bradley has signaled that she might be more flexible than the standard-issue Walker acolyte on somce issues, including LGBT rights and child welfare.

But her backing comes from such right-wing groups as Wisconsin Manufacturers and Commerce, which reportedly urged another conservative candidate not to run against her. Brady served as president of the Milwaukee chapter of the Federaliost Sociaty, a far-right lawyers group, and belonged to the Thomas Moore Society, a conservative Catholic legal group. She’s also belonged to the Republican National Lawyers Association.

During what critics called Walker’s “coronation” of Bradley, he claimed she had the best resume for the job, even though she’s only been a judge for three years and was appointed to every position she’s held by Walker. Perhaps one of her attractions is Bradley’s relative youth. At 44, she could go on to serve several 10-year terms, helping to keep a solid right-wing majority on the state’s high court for an entire generation.

Reactions to Bradley’s appointment were swift and angry.

“(Walker) is giving a campaign contributor an unfair advantage in the race next year so Wisconsin residents will have no chance at having an open and fair election for the Supreme Court Justice seat,” charged Democratic Party of Wisconsin Chair Martha Laning in a prepared statement. Rebecca Bradley has given … to Gov. Walker and today it is paying off for her with her appointment to the Supreme Court.”

But Assembly Democratic Leader Peter Barca, D-Kenosha, warned that Bradley’s appointment could backfire: “The governor making this appointment so close to the election does not serve the public well but is in line with Republicans’ continued right-wing special interest stranglehold on our state. However, I question why a judicial candidate would want to be so closely linked to a governor with a 37 percent approval rating.”

Kloppenburg came close to unseating controversial Wisconsin Supreme Court Justice David Prosser in 2011, losing by 7,000 votes out of the 5 million cast. That race came at a time when left-wing bitterness against Walker over Act 10 was at its height. Prosser vowed on the campaign trail to support the governor’s policies from the bench — a jarring message to deliver in a campaign that’s supposed to be non-partisan.

Kloppenburg, however, took the high road, running a relatively low-key campaign in which she refused to talk about partisan issues. She says she’ll be more aggressive in this race.

Donald is positioning himself as the only non-partisan candidate in the race. 

Garren Randolph, a spokesperson for the Joe Donald for Justice campaign, issued a press release saying that unlike Bradley or Kloppenburg, Donald “has served for 19 years as an independent judge, and is earning support across the ideological spectrum because he is the only candidate in the race who represents a truly independent judiciary.”

Donald was appointed by Republican Governor Tommy Thompson.

“Neither Scott Walker nor his political opponents can expect Judge Donald to toe the party line — any party,” Randolph said in his statement.

UPDATE: Walker appoints Bradley to Wisconsin Supreme Court, changes election landscape

UPDATED: The death of Wisconsin Supreme Court Justice Patrick Crooks with 10 months left in his term has set up a spring election that’s as much a referendum on Gov. Scott Walker as it is on who should serve on the state’s highest court.

Walker has appointed appeals Judge Rebecca Bradley to hold the position in advance of the election next year, in which she’s already a candidate.

Common Cause in Wisconsin, the League of Women Voters of Wisconsin, the Wisconsin Democracy Campaign and Wisconsin Voices had sent Walker a letter asking him not to name one of the three candidates for the Wisconsin Supreme Court to fill out Crooks’ term, which runs through July 31, 2016.

But Walker did not heed their advice. He introduced Bradley as the appointee during a news conference on Oct. 9. The AP reported the appointment earlier in the day.

Bradley, at the news conference, said she didn’t expect the appointment by Walker to give her an advantage — or disadvantage — on Election Day. “I think when the voters are evaluating judicial candidates they look less at who’s appointed them and they look at their record on the bench, how they conducted their campaigns and what their qualifications and experiences are. I don’t think they look at who has appointed that judge or justice.”

The governor has been behind Bradley during every step of her rapid judicial rise. He’s twice named her to lower court openings and he likely was a factor in the $167,000 she got from the Koch brothers’ Club for Growth and the Republican Party to retain the relatively obscure seat to which he first appointed her on Milwaukee Circuit Court’s Branch 45.

That was in 2012. In 2013, aided by all the donations, she retained the seat against a challenger, earning 53 percent of the vote. In May, Walker appointed Bradley to the District 1 Court of Appeals.

Now, just three years after her first appointment to the bench by Walker, Bradley, 43, has her sights set on the state’s highest court. With her appointment by Walker, she has the advantage of running as an incumbent in the race for a 10-year term next April. 

Despite holding generally conservative views on issues like abortion and corporate entitlements, Bradley has high-profile friends in Milwaukee’s LGBT community and seemed very pro-gay during an interview with WiG two years ago. Likable and charismatic, she’s not the kind of judicial candidate normally associated with Wisconsin Republicans. It’s hard to predict what kind of Supreme Court jurist she’d make, but the safest guess is that she’d be more of a swing vote than a staunch ideologue.

Two other candidates had also announced their plans to run before Crooks died — JoAnne Kloppenburg and Joe Donald. Both are far more experienced jurists than Bradley and both are to the left of her politically.

In the past, Democrats have heavily backed Appeals Court Judge Kloppenburg. She came close to unseating Wisconsin Supreme Court Justice David Prosser in 2011, losing by 7,000 votes out of the 5 million cast. That race came at a time when left-wing bitterness against Walker over Act 10 was at its height. Prosser vowed on the campaign trail to support the governor’s policies from the bench — a jarring message to deliver in a campaign that’s supposed to be non-partisan.

Kloppenburg, however, took the high road, running a relatively low-key campaign in which she refused to talk about partisan issues. She says she’ll be more aggressive in this race.

While Kloppenburg is generally considered the frontrunner for progressives, her fundraising for the 2016 race has been languid so far. Most of the $27,000 she’d raised as of September came from a loan she made to her own campaign. 

The third candidate, Milwaukee County Circuit Judge Joe Donald, presents himself as the most politically independent choice of the three, although Assembly Democratic Leader Peter Barca and other Democrats back him. He began his campaign with robust fundraising, taking in $109,000 by the end of June.

Races for the Supreme Court are officially nonpartisan, but the reality in recent years has been conservatives and liberals — and well-funded outside groups — coalesce around the candidates they favor and spend millions helping to elect them.

Coronation

Naming Bradley to the court solidifies Walker’s ties with her and makes the election “absolutely … a referendum on Walker,” Jay Heck, director of government watchdog group Common Cause in Wisconsin, said before the appointment. “That’s really not where the Supreme Court needs to be.”

In defense of considering Bradley for the vacant seat, Walker had cited two examples of judges who were appointed to openings and later ran for full terms. But in both cases from the 1990s, the judges had not announced their plans to run before they were appointed by then-Gov. Tommy Thompson.

The situation caused by Crooks’ death on Sept. 21 is different.

Crooks, who had been in failing health, had said he was not going to run for re-election. All three of the candidates were actively campaigning when Crooks died.

Walker had insisted that he would base his appointment decision on three criteria: finding someone who is an outstanding attorney, has integrity and “understands the proper role of a judge.”

Earlier this month, Kloppenburg said appointing Bradley “would appear to be an attempt to thwart the people’s will.” 

In a statement on Oct. 9, Kloppenburg said, “The choice in this campaign could now not be clearer: Gov. Walker’s choice or the people’s choice. I am running to be the people’s choice for Supreme Court. And I am asking the people of Wisconsin to stand with me in the coming election, for the integrity of our judicial system and against partisan politics and special interests on our Court.”

Garren Randolph, a spokesperson for the Joe Donald for Justice campaign, said, “What the people of Wisconsin want is truly independent judges. The public expects judges who don’t come to the bench with an ideological agenda, and who approach cases with an open mind. Cases should be decided based on the facts, the application of law, and under constitutional principles.

“By appointing Rebecca Bradley to the Circuit Court, to the Court of Appeals and now to the Supreme Court, Gov. Scott Walker has now elevated a loyal ally three times in four years, including twice in the last year. This abbreviated process simply cannot withstand public scrutiny.” 

Reaction to the appointment

The Democratic Party of Wisconsin, responding to Bradley’s appointment on Oct. 9, said in a news release, “Wisconsin residents deserve a fair and impartial Supreme Court and Gov. Walker’s appointment of a campaign contributor who has already declared she is running for the open seat next year has destroyed any possibility of a fair election.”

The party said Walker is giving Bradley “an unfair advantage in the race next year so Wisconsin residents will have no chance at having an open and fair election for the Supreme Court Justice seat. Rebecca Bradley has given generously to Gov. Walker and today it is paying off for her with her appointment to the Supreme Court.”

Assembly Democratic Leader Peter Barca of Kenosha added, “It is no surprise that Gov. Walker appointed the handpicked conservative candidate for Supreme Court. The governor’s actions are entirely consistent with Republican efforts to ensure the continued protection of corporate and special interests over the economic security of Wisconsin citizens.”

And Senate Democratic Leader Jennifer Shilling of La Crosse said, “It is unprecedented for a Wisconsin governor of any party to appoint a declared judicial candidate to the Supreme Court this close to an election. This power grab sets a terrible precedent and doesn’t pass the smell test.”

Editor’s note: This story is being updated.

Special prosecutor moves John Doe ruling a step closer to U.S. Supreme Court appeal

A special prosecutor has asked the Wisconsin Supreme Court to reconsider its decision ending an investigation into Gov. Scott Walker’s recall campaign, a move that signals he may take the case all the way to the U.S. Supreme Court.

The state Supreme Court ended the investigation into Walker’s 2012 recall campaign and more than two dozen conservative groups on July 16, saying they had not violated campaign finance laws by working closely together. The ruling was a big win for Walker, coming just days after he officially launched his presidential campaign.

Online court records show Francis Schmitz filed a motion Tuesday with Wisconsin’s highest court to put that decision on hold and reconsider the ruling.

The state Supreme Court ended the investigation into Walker’s 2012 recall campaign and more than two dozen conservative groups on July 16, saying they had not violated campaign finance laws by working closely together. The ruling was a big win for Walker, coming just days after he officially launched his presidential campaign.

Online court records show Francis Schmitz filed a motion Tuesday with Wisconsin’s highest court to put that decision on hold and reconsider the ruling.

The probe had been on hold for 18 months after the judge overseeing the investigation ruled that no laws had been broken. But the Supreme Court’s 4–2 ruling ended it for good. The court, which is controlled by a majority of conservative justices, broke along ideological lines to find in support of the Walker recall campaign.

Part of the court’s ruling ordered Schmitz and prosecutors to return all evidence collected during the investigation and destroy any copies. Schmitz’s request that the ruling be put on hold would delay that.

The original investigation, known as a John Doe, was secret and many of the court filings have not been publicly released. Schmitz’s actual motion was under seal pending a determination by the court as to whether it should be made public.

Schmitz did not immediately return a message seeking comment Wednesday. Todd Graves, the attorney for the Wisconsin Club for Growth that filed a lawsuit challenging the probe that went to the Supreme Court, declined to comment.

The filing comes as Walker prepares to take part in the first Republican presidential candidate debate on Thursday night in Cleveland.

Schmitz’s filing is the clearest sign yet that he may ultimately ask the U.S. Supreme Court to take the case.

Schmitz had asked that two state Supreme Court justices — Michael Gableman and David Prosser — recuse themselves from the case because their campaigns for the high court benefited from millions of dollars spent by at least three groups that were investigated.

The court denied the request with no explanation the same day it issued its ruling, written by Gableman and supported by Prosser. That could form the basis of an appeal by Schmitz to the U.S. Supreme Court.

The Wisconsin Club for Growth is estimated to have spent more than $1 million for Gableman and Prosser. Another group that was part of the investigation, Wisconsin Manufacturers & Commerce, spent nearly $3 million for the campaigns of the same two justices. And a group funded entirely by Wisconsin Club for Growth, Citizens for a Strong America, spent nearly $1 million to help Prosser.

The groups also contributed to the other Republican-backed justices who signed on to Gableman’s opinion, which did not deny that the groups coordinated their fundraising activities with Walker’s campaign, but rather that the law prohibiting it was unconstitutional.

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.