Justice David Prosser and I had a long, long conversation last week about his race for re-election to the state Supreme Court.
Only a fraction of our discussion fit into the Q&A printed in this week’s Shepherd. He was at turns kind, combative, funny and, well, simply exasperated by attacks on his record.
Toward the end of our conversation I asked him about his 100% rating from the Wisconsin Civil Justice Council, aka the Wisconsin Manufacturers and Commerce (WMC), the conservative big business lobbying group that has poured millions of dollars into legislative and judicial campaigns, as well as some of their business allies.
Here’s the exchange:
Me: WMC gave you a 100% rating. How do you explain that?
Prosser: [laughs] How do I explain that? They went out and did a study. They picked out a certain number of cases. I think they did a study designed to make me look good. They certainly didn't include any cases in which I voted against business. I met with the Wisconsin Association for Justice [aka the trial lawyers] in December and I brought with me a list of 20 cases in which I had written the majority opinion in favoring the plaintiff. I can guarantee youwell, maybe the Medical Society case is an example of something that might be on both listsbut most of the cases that I gave to the Wisconsin Association of Justice were certainly not on the WMC list. [laughs]
Me: So WMC designed a study to make you look good?
Prosser: Well I think they designed a study intended to appeal to their members, for whatever purpose they wanted to appeal. I didn’t select the cases. I didn't participate in the study. I honestly would have thought it would look better if I was with them 90% of the time [laughs] and not 100% of the time.
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Prosser’s right that the cases chosen by the WCJC are pretty selective. One is Justice Michael Gableman’s ethics case, which deadlocked when Prosser and the two other conservative justices voted to drop the case while the three more liberal justices argued that the case should go to trial. WMC, which dumped more than $2 million into that race, approved of Prosser’s vote to exonerate Gableman.
Also making the list are the ethics rules that Prosser, again in the majority, voted to adopt. The rules were written by WMC and the Wisconsin Realtors Association regarding campaign donations and judges. One rule, adopted verbatim, says that judges and justices are not required to recuse themselves from cases in which a major campaign donor (or a party that ran independent ads during that judge’s campaign) is involved. The other rule says that judges and justices are allowed to receive campaign donations from parties that have a case before that judge.
Prosser and I had a very long discussion of these rules. In a nutshell, he thinks that the whole situation was set up to make him look bad. Initially, the League of Women Voters submitted draft rules that would require judges and justices to recuse themselves from cases that involved a party that had contributed $1,000 to their campaign. Prosser told me that this limit was too restrictive and would force judges off of cases all over the state. Fair enough.
So then the WMC and the Realtors submitted their proposed rules. Normally, Prosser said, the court would hold hearings and send proposed rules to a committee to study them and make a recommendation, then the court would tweak the proposal. But Prosser told me that he felt that the committee was designed to embarrass him and the other conservatives on the court. He didn’t think that he and his allies would be treated fairly.
“You can’t have certain members of the court trying to turn public hearings into an opportunity to embarrass other members of the court without expecting a reaction,” Prosser said. “And this is exactly what happened.”
So he and Roggensack, Gableman and Ziegler voted to adopt the rules verbatim. Prosser wrote the commentary about them.
Can you see why people think this smells bad? I asked Prosser.
“I can see why a lot of people are trying to create the perception that the court has been bought,” Prosser said. “The people who want to create that perception are really people who didn't like the result of the election.”
By that he means the Gableman election.
He also said it’s unfair to compare the Gableman election to John Grisham’s “The Appeal,” which is modeled on the West Virginia Supreme Court race in which the CEO of the A.T. Massey Coal company contributed $3 million to a candidate opposing a Supreme Court justice who had ruled against the company in a $50 million fraud suit. Prosser said that Chief Justice Shirley Abrahamsonherself a fundraising powerhousetries to link “The Appeal” to what is happening in Wisconsin.
Which brings us back to the WMC’s influence on the court.
Here’s Prosser: “There are gross differences in the facts [in “The Appeal”/Massey case and the influence of the WMC on the Wisconsin Supreme Court]. Let’s say WMC is interested in cases that affect the business community. They don’t have one single case where one guy has a $50 million judgment against him and he pours three million bucks into replacing the chief justice of the court just to tilt the result in that pending case. Come on. It’s a little bit different. Quite a bit different. What was happening during the time that Louie [Butler] was on the court? There was just one decision after another that the business community was losing that they really shouldn’t have lost. They were paying out millions and millions of dollars in cases in the Wisconsin Supreme Court that obviously affect people all over the state well beyond those individual cases. They said, ‘We have to do something about this.’”
So WMC dumped about $2 million into the race to unseat Butler. Not because they lost one big case, but because they were losing a number of them. OK.
What I took away from our discussion is that Prosser, a former Assembly majority leader, is very much a political creature, acutely aware of personal grudges, court strategy, how decisions would be portrayed in the media, how court hearings and decisions can impact politics. Perhaps all of the justices are this politically attuned; Prosser's just more upfront about it. He stressed that much of the blowback the court is feeling nowthe sense that the court has been boughtis because folks simply don’t like the fact that Gableman beat Butler. Of course, that sentiment is certainly understandable, since Gableman had more than $2 million in independent support from the WMC, plus he personally approved one of the sleaziest campaign ads ever aired in Wisconsin. Add in the horrible 3-3 split on his ethics case and, yeah, the Gableman campaign is still hanging over the court. It’ll probably hang over the court until Gableman is no longer on it.
So Prosser not only has to deal with the fallout from the Gableman caseincluding his own votes sympathetic to WMCbut now he’s caught up in the Walker=Prosser whirlwind. Wonder when the WMC (or one of its front groups or allies such as the Club For Growth) will start airing ads in his defense (or destroying his opponent, Assistant AG JoAnne Kloppenburg). Stay tuned.
