Justice Prosser Back in the Spotlight

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Embattled Wisconsin Supreme Court Justice David Prosser is in the spotlight once again, this time for a conflict-of-interest in a pending case involving Koch-funded Tea Party groups.

The case, Wisconsin Prosperity Network v. Myse, involves a challenge by Koch-funded Americans for Prosperity to proposed campaign disclosure rules passed in the wake of the U.S. Supreme Court's Citizens United decision (and subsequently enjoined by the Wisconsin Supreme Court). Attorney Jim Troupis is arguing against the transparency requirements on behalf of Americans for Prosperity and the other Tea Party-affiliated groups. Troupis Law Office was also paid $75,000 by Justice Prosser to represent his campaign during last spring's contentious supreme court election recount.

Prosser's Refusal to Recuse?

Justice Prosser issued a letter to the parties in the Wisconsin Prosperity Network case last week, stating "I believe I can be completely impartial," but asking that "the parties and their attorneys confer to determine whether I should participate in the case if it is argued in the near future." Prosser's campaign manager told reporters the Justice would stay on the case.

Adam Skaggs, an attorney at the Brennan Center for Justice (which filed an amicus brief in the case), told the Capital Times Prosser's letter "is a begrudging acknowledgement that there's been a lot of criticism, and it's an attempt to stay on the case in spite of the obvious ethical rules that require him to step aside."

Judicial ethics experts interviewed by the Milwaukee Journal-Sentinel agreed. "The fact that the judge has had this kind of extremely close relationship with this lawyer [Troupis] -- a relationship built on dependency and trust -- in the recent past is something that might well cause a reasonable person to question the judge's ability to be impartial," said Professor Monroe Freedman at New York's Hofstra Law School. Troupis having worked to help keep Prosser on the bench makes the case even more problematic, according to New York University School of Law professor Stephen Gillers and Indiana University-Bloomington Maurer Law School professor Charles Geyh.

The editorial boards of both the Milwaukee Journal-Sentinel and Appleton Post-Crescent have called for Prosser to recuse himself. (Update: so has the so New York Times)

One More Controversy

This is the latest in a long string of controversies surrounding Justice Prosser. His reelection campaign turned into a referendum on Wisconsin Governor Scott Walker's collective bargaining bill, elevating what would typically be a mundane win for the incumbent into a national news story. In the runup to election day, it was revealed that Prosser had called Chief Justice Shirley Abrahamson a "bitch" and threatened to "destroy" her. On election night, challenger JoAnne Kloppenburg was initially declared the winner, only to have results shift after a Republican County Clerk announced the discovery of thousands of unreported votes, prompting Kloppenburg to call for a recount.

Not long after the recount came out in Prosser's favor, he and the Wisconsin Supreme Court's conservative majority issued a decision upholding Governor Walker's collective bargaining law, despite the court not having a complete factual record and not holding any hearings. The rushed decision was apparently in response to threats from legislative Republicans, and Prosser's concurrence was critiqued as lacking a factual basis.

The day before, as the Justices debated whether to issue a rushed judgment or allow for full hearings, Prosser grabbed fellow Justice Ann Walsh Bradley by the neck in the heat of the debate. Women's groups called for Prosser to step down while investigations unfolded but he refused.

Conflict-of-Interest with Right-Wing Counsel

The latest controversy is made no easier by the fact that the attorney, Jim Troupis, is known as the go-to attorney for the Wisconsin right-wing. He advised Senate Majority Leader Scott Fitzgerald and other Republicans when they issued arrest warrants for Senate Democrats who left the state to delay a vote on Governor Walker's collective bargaining bill -- Troupis said the Democrats caused a "constitutional crisis" he compared to 9-11 -- and represented Club for Growth in a civil case many considered frivolous against the fleeing Senate Democrats. He also represented legislative Republicans in their redistricting efforts, and sits on the Board of Directors of the right-wing, Koch-connected think tank MacIver Institute, and more.

If Prosser recuses himself and the court splits 3-3, the campaign transparency regulations would likely remain in place. The Wisconsin Prosperity Network v. Myse case is scheduled for oral arguments on Tuesday, September 6.

The Center for Media and Democracy also submitted an amicus brief in the Wisconsin Prosperity Network v. Myse case.