Justice Prosser’s Pathetic Self-Defense on Recusal

by Matthew Rothschild, Executive Director

July 30, 2015

Justice Prosser
Justice Prosser

On Wednesday, Justice David Prosser of the Wisconsin State Supreme Court filed a pathetic 12-page letter with the court as to why he refused to recuse himself from the John Doe case, as the special prosecutor had requested.

His letter actually provides additional evidence as to why he should actually have recused himself.

And his arguments as to why he shouldn’t have recused himself are exceptionally weak.

First, the additional evidence:

1) The magnitude of the financial support

His letter reveals that the special prosecutor, Francis Schmitz “alleged that an ‘estimated $3,344,000’ was ‘contributed’ by certain entities ‘to the benefit of the Justice Prosser re-election effort.’” That figure is $744,000 more than the Wisconsin Democracy Campaign had estimated. The Wisconsin Democracy Campaign had estimated that three groups allegedly under investigation by the John Doe had spent $2.6 million on behalf of Prosser, with Wisconsin Manufacturers and Commerce spending $1,100,000 and Wisconsin Club for Growth spending $500,000 and Citizens for a Strong America spending about $1,000,000.

The U.S. Supreme Court, in its 2009 Caperton decision, said that if campaign funding by a party to a case had a “significant and disproportionate” influence in getting a judge elected, that judge has an obligation to get off the case. The Wisconsin Democracy Campaign previously asserted that $2,600,000 amounted to just such a “significant and disproportionate” influence, especially since Prosser won by only 7,000 votes. The new number, $3,344,000, which Prosser does not dispute, makes the influence even that much more significant and disproportionate.

2) Collaboration between Prosser’s campaign and parties under investigation by the John Doe

Since the John Doe investigation concerned possible illegal coordination between outside groups and the Walker campaign, it is ironic and telling that Prosser’s campaign itself appears to have coordinated with some of the same outside groups under investigation.

Prosser writes: “The special prosecutor alleges that two of the unnamed petitioners ‘were actively involved in the Justice Prosser re-election campaign, as exemplified by a November 17, 2010, email. The email reads in pertinent part: ‘We need to do a quick conference call at 2 PM tomorrow to discuss the Prosser race and his need for 1,000 low-dollar donors by year end.’ ”

Prosser also mentions an email that the special prosecutor cited that came from Prosser’s “volunteer campaign coordinator in Waukesha County to a staff member in Governor Walker’s office.” That email read, in part: “NOTE: Justice Prosser sent a letter to me and I thought you may wish to forward it if appropriate. I needed to get very creative with diverse state and National organizations to help his campaign” raise money.

So in these two examples, we have Prosser’s campaign apparently coordinating with Walker and with two of the outside groups under investigation by the John Doe prosecutor. Wow!

Now on to Prosser’s rationalizations for his non-recusal.

Bad Argument #1: I Had No Choice But to Open Myself up to Corruption

Amazingly, Prosser concedes: “While it can be argued that independent communications supporting my campaign were ‘signficant and disproportionate,’ there was no alternative under Wisconsin law for people who believed I had done a good job and wanted me to continue.” In his letter, Prosser repeatedly claims that the Impartial Justice Act of 2009, which established public funding for Supreme Court candidates, invited spending by outside groups. As he put it, “The Wisconsin Legislature made this result inevitable.” Actually, the Impartial Justice Act was designed to prevent just the kind of bias and corruption that the special prosecutor was citing when it asked Prosser to recuse himself. Prosser also claimed that the Impartial Justice Act prevented him from responding to negative ads. “Wisconsin law provided no practical means for my committee to respond to the misrepresentations because I participated in a publicly funded campaign.” In fact, it allowed him to spend $400,000 of public funds to respond to negative ads or run positive ads. And as it was originally written, before federal courts invalidated this section, it allowed for public matching funds when a candidate was being outspent by outside groups. In any event, Prosser’s concession that he arguably benefited in a “significant and disproportionate” way from the outside spending of the groups under investigation by the John Doe prosecutor is a clincher. He is essentially claiming that he had no alternative but to open himself up to corruption.

Bad Argument #2: I was already a veteran of the court when the money was spent on my behalf.

Here Prosser tried to distinguish himself from the justice on the West Virginia State Supreme Court who wrongly did not recuse himself. That justice had not yet been on the West Virginia high court and was running for his first term when he accepted huge sums of money from the head of the Massey Coal company and then, when he got on the bench, ruled in the company’s favor. So Prosser writes: “Unlike the candidate in West Virginia, I had been a member of our court for almost 13 years before the expenditures were made.” But that makes no difference. You still can be corrupted by expenditures that have a “significant and disproportionate” influence on you being elected, whether you’re running the first time or the tenth time.

Bad Argument #3: I can’t recuse myself because that would change the Court.

Again, trying desperately to find some daylight between himself and the West Virginia justice, Prosser wrote: “Unlike West Virginia, Wisconsin has no procedure to replace a justice who withdraws from a case as a result of a recusal motion. Successful recusal motions alter the composition of the Wisconsin Supreme Court, so that, in a very real sense, a party moving for a justice’s recusal is trying to change the composition of the court that will hear its case.”

Under this logic, no one should ever recuse themselves no matter how egregious the bias or conflict of interest might be. Ironically, in this case, Justice Ann Walsh Bradley, one of the liberal justices, actually did recuse herself because her son practices law with one of the attorneys representing one of the groups under investigation by the special prosecutor. Her sense of propriety outweighed any consideration of how it would alter the composition of the court. Prosser had no such sense of propriety.

Bad Argument #4: I’m elected. You’re not!

Prosser writes: “The public ultimately decides at the ballot box who is permitted to serve on the Wisconsin Supreme court. The special prosecutor seeks to prevent an elected justice from performing that service unless the unelected special prosecutor wants the elected justice to sit on the case. This is not the way the system works.” First of all, it’s not a question of whether the prosecutor “wants” the justice to hear the case. It’s whether the justice has a legal and moral obligation to get off the case. And secondly, the logic of the canard about an “unelected special prosecutor” taking power away from an “elected justice” implies that no special prosecutor can ever investigate an elected official, no matter what the alleged crime.

The only credible argument that Prosser made was that the expenditures by the outside groups on his behalf were so far away from the time of this case that any potential corruption would have evaporated. In the Caperton case, the Supreme Court did mention that one criterion for recusal was the timing of the financial support relative to the election day and the likelihood that a case involving the donor (or, by extension, the group providing the expenditures) would be soon before the court. That was not the only criterion, however. And it would be foolish if it were because if you owe your position on the court to your financial supporters who provided a “significant and disproportionate influence,” whenever those supporters come before you, how can you be impartial?

Justice Prosser’s letter is long on self-pity and self-justification but short on propriety and legal reasoning.

It’s an embarrassment upon an embarrassment.

WDC Executive Director Matthew Rothschild
Matthew Rothschild
WDC Executive Director

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