"Choking Dissent" Report: Prosser and Process

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The Sheriff's report on the investigation into Wisconsin Supreme Court Justice David Prosser allegedly "choking" Justice Ann Walsh Bradley in June not only describes a dysfunctional work environment, but also provides new details about the process leading to the court's decision on Governor Walker's contentious collective bargaining bill.

As CMD has reported, last week the Dane County Sheriff's office released the report of its investigation into Justice Prosser placing his hands on Justice Bradley's neck the evening before the court issued its controversial 4-3 opinion upholding Governor Walker's contentious collective bargaining bill. That report describes Prosser's role in creating the situation leading to the dispute by issuing a lengthy concurrence, without notice, after the court's liberal minority had drafted their dissenting opinion.

Collective Bargaining Suit was Already Controversial

Even before it reached the Wisconsin Supreme Court, the Ozanne v. Fitzgerald case challenging the bill on grounds it violated the state's Open Meetings law was highly politicized. The underlying anti-collective bargaining bill inspired months of massive protests at the state capital, and concern over how Prosser might vote on the legal challenge colored his reelection -- judicial reelection campaigns are typically an easy win for the incumbent, but collective bargaining supporters elevated challenger JoAnne Kloppenburg into a significant candidate. The race attracted national attention and Prosser barely held on to his seat after the last-minute discovery of uncounted votes in Waukesha, a strongly Republican county.

The case came to the Wisconsin Supreme Court not as an appeal of Judge MaryAnn Sumi's May 26 lower court decision striking down the collective bargaining bill, but as a review of Judge Sumi's March 18 temporary order, where she halted the law's implementation before both sides had finished presenting their cases, and before the relevant factual record had been developed. Under these conditions, the Court had limited evidence upon which it could base its decision.

For weeks, the court sat on the case, staying publicly silent about whether it would accept it, and listening only to preliminary arguments on whether the court should take the case. Assembly Speaker Jeff Fitzgerald forced a deadline on the court in June when he announced the legislature would pass the collective bargaining provisions as a budget amendment if the Justices did not act by Tuesday, June 14. Over the apparent objections of the court's three-person liberal minority, the four-person conservative majority decided to comply with Fitzgerald's deadline and issue an opinion without the benefit of a complete factual record or an opportunity to hold hearings.

According to Prosser's statements in the Sheriff's report, there was an "absolutely clear understanding" by all parties the majority decision would go out by Monday, June 13 to beat the deadline set by Speaker Fitzgerald, despite the three-person liberal minority having wanted a full hearing on the case.

The incident between Justices Prosser and Bradley took place on Monday evening as justices discussed the opinion's delayed release. Justice Prosser told the Chief Justice he "lost faith in her leadership," which compelled Justice Bradley to instruct him to leave her office. Bradley said she walked towards Prosser with her hand in the air to point at the door, and Prosser claimed Bradley "charged" him with fists raised. After that, Prosser said, "I remember putting my hands on her neck."

Prosser's Last-Minute Concurrence

The delay that gave rise to the dispute, according to the report, was attributable in part to Justice Prosser's last-minute addition of a concurring opinion.

The majority opinion was distributed on Friday, June 10. According to Bradley's statement, also on Friday the Chief Justice sent an email asking if any Justices would be writing a concurrence, to which she reportedly received no reply. Abrahamson prepared her dissent over the weekend and circulated it on Monday morning. At 1:30pm Monday afternoon, Justice Prosser circulated his 18 page concurring opinion, which reportedly took Justices Abrahamson and Bradley by surprise (Justice Ziegler, in contrast, said she knew Prosser would be writing a concurrence). Abrahamson told the other justices she would have to retool her dissent in light of the new concurrence and distribute it to Justices Bradley and Crooks for feedback.

Prosser's 18 page concurrence was longer that the majority's actual order, and one of the most controversial portions of the already-controversial decision. The majority opinion was based on a limited factual record (and without holding hearings to resolve disputed facts), but Prosser took it a step further and, according to Justice Abrahamson's later dissent, "ma[de] his own factual findings" whose source was unexplained. The dissenting justices said Prosser developed new justifications for the majority's opinion, made factual assertions neither supported by the record available to the court nor by the public record, and created what Justice Crooks' dissent called a "novel interpretation" of an important constitutional provision.

In short, Justice Prosser's late concurrence was something the dissenters would have to respond to, and by issuing it after the dissenting opinion was already drafted, he gave them no time to do so. Already bristling at the conservative majority's rush to issue an opinion under pressure from Speaker Fitzgerald, Prosser's last-minute move would either put the dissenters under additional time pressure or prevent them from responding to what he wrote.

Choking Dissent

According to the reports, the "choking" incident arose after the conservative majority had gone to ask the Chief Justice when the dissent would be done, and whether a press release announcing the opinion's release would be issued that evening. According to Prosser, Chief Justice Abrahamson said the dissenters had not yet agreed on the content of their opinion, and that "no, absolutely not, we're not going to [release the press release tonight], I may not be done until Wednesday."

Justice Bradley recalled Prosser saying "the dissent was holding up the Supreme Court decision being published." Prosser took umbrage with the accusation that his concurrence, circulated after the initial dissenting opinion had been drafted and without giving advance notice, was the real cause for delay. Prosser said he worked all weekend without a clerk for reasons redacted from the report. Justices Bradley and Abrahamson reported that as this discussion took place, he began getting "agitated," with Bradley saying he was "working himself up" in a way she recognized from past conflicts. Even Prosser admitted that "there was a little elevated voice when they were accusing me of deceiving them by not letting them know I was writing a concurrence."

All agree that Justice Prosser eventually said something to the effect of "Chief, I have lost total confidence in your leadership," after which Bradley walked (or rushed, according to some accounts) towards Prosser.

Then, he wrapped his hands around her neck.