David Prosser, Jr.

David Prosser, Jr.
Justice David Prosser
Prosser in March 2011
Wisconsin Supreme Court Justice
Incumbent
Assumed office
September 10, 1998
Appointed by Tommy Thompson
Preceded by Janine Geske
Commissioner Wisconsin Tax Appeals Commission
In office
1996–1998
Appointed by Tommy Thompson
Preceded by Joe Mettner
Speaker of the Wisconsin State Assembly
In office
January 3, 1995 – January 3, 1997
Preceded by Walter Kunicki
Succeeded by Ben Brancel
Minority Leader of the Wisconsin State Assembly
In office
January 3, 1991 – January 3, 1994
Member of the Wisconsin State Assembly
Districts 57, 79 and 42
In office
January 3, 1979 – January 3, 1997
Preceded by Tobias A. Roth
Succeeded by Steve Wieckert
Constituency Appleton area
Personal details
Born December 24, 1942 (1942-12-24) (age 68)
Chicago, Illinois
Political party Republican
Spouse(s) Single
Alma mater DePauw University, B.A. (1965)
University of Wisconsin Law School, J.D. (1968)
Profession Legislator, Supreme court justice

David T. Prosser Jr. (born December 24, 1942) is a member of the Wisconsin Supreme Court. A former Republican speaker of the Wisconsin Assembly, Prosser was appointed to the court by Governor Tommy Thompson in 1998, and was elected to his first 10-year term without opposition in 2001. He ran for re-election in April 2011 against little-known Wisconsin assistant attorney general, Joanne Kloppenburg. The race was viewed as a referendum on efforts by Republican Governor Scott Walker and the Republican-controlled legislature to curb the union rights of public workers in Wisconsin.[1][2] Voter interest and turnout for the April 5 election were unusually high with the race too close to call until late in the afternoon of April 7 when the Waukesha County Clerk announced she had erroneously omitted more than 14,000 votes from her earlier tally, giving Prosser a commanding lead of over 7,000 votes. Prosser has received national attention due to the close election, and because of allegations he had an altercation with fellow Wisconsin Supreme Court justices in 2010 which involved profanity and threats and a physical altercation in 2011, of which he was cleared by a special prosecuter on August 25, 2011.[3]

Before becoming a high-court judge, Prosser was an 18-year member of Wisconsin State Assembly, serving six of those years as Republican minority leader and two as assembly speaker. He also served as a commissioner on a state tax appeals board and as a district attorney. He began his legal career during the administration of Richard Nixon working as an attorney at the U.S. Department of Justice and as a U.S. congressional aide.

Contents

Early life and education

Prosser was born in Chicago, Illinois to David T. Prosser, Sr., and his wife Elizabeth (Patterson) Prosser,[4] and was raised in Appleton, Wisconsin. After graduating from Appleton High School, he attended DePauw University, receiving his B.A. in 1965.[5] He went on to law school at the University of Wisconsin and received his J.D. in 1968.[5]

Career

Early career

Prosser lectured at Indiana University-Indianapolis Law School from 1968–1969, before working from 1969-1972 in Washington, D.C. as an attorney advisor in the Office of Criminal Justice, U.S. Department of Justice.[6][7] He ran unsuccessfully for a seat in the Wisconsin General Assembly in 1973, then served as an administrative assistant to U.S. Representative Harold Vernon Froehlich, a Republican member of the House Judiciary Committee from 1973-1974 during the Watergate impeachment hearings.[5][7] After two years in private practice as a self-employed lawyer, Prosser served as Outagamie County district attorney from 1977–1978.[5][8]

Wisconsin legislature

Prosser represented the Appleton area in the Wisconsin State Assembly as a Republican from 1979 through 1996.[7] His committee assignments included Criminal Justice and Public Safety and Judiciary.[5] During his tenure in the Assembly, he served six years as Minority leader and two years as Speaker.[7]

In 1981, he opposed removing criminal penalties on sexual activity and cohabitation between unmarried, consulting adults,[9] though he did express a willingness to repeal the jail terms.[10] He stated that legalizing sex outside of marriage would increase divorce rates, the number of children born outside of wedlock, welfare payments, sexually transmitted diseases, and abortions.[10] In 1995, while he was Assembly Speaker, Prosser led the push for the new baseball stadium for the Milwaukee Brewers, saying that Wisconsin had a choice of being either a "big league or bush league" state.[11]

Campaign for U.S. Congress

In 1996 he ran for the 8th congressional district seat in the U.S. Congress vacated by retiring U.S. Representative Toby Roth.[12] Prosser won what the Milwaukee Journal Sentinel described as a "bitter and high-spending" primary, but was defeated in the general election by Democrat Jay W. Johnson.[12] One month later, Governor Thompson appointed Prosser to the Wisconsin Tax Appeals Commission where he conducted hearings and ruled on disputes related to state taxation.[7][12]

Wisconsin Supreme Court

In September 1998, Thompson appointed Prosser to a vacant seat on the Wisconsin Supreme Court, hailing him as a conservative.[13] In an unusual move blurring the separation of powers between the branches of government, a bipartisan group of 77 of the 132 state legislators sent a letter to Thompson supporting the appointment, describing Prosser as, "learned, thoughtful, and fiercely defensive of our system of law".[14]

In 2011, the Milwaukee Journal Sentinel said Prosser is a "reliable judicial conservative, but he's also independent",[15] citing an August 2010 Wisconsin Law Journal analysis which concluded "Prosser voted with no justice more than 85% of the time, though he generally combined with three other conservative justices (Michael Gableman, Patience Roggensack, and Annette Ziegler), to form a 4-3 majority on the court.[16] The New York Times said some observers believe that Prosser is a member of a conservative 4-3 bloc on the court.[1]

In October 2010, Prosser indicated that he supported limiting free online access to Wisconsin trial court records because the information can be misused by employers and landlords, saying, "Some people are actually innocent, and they shouldn't be disadvantaged forever" by the online records.[17] Opponents of the change argued that restricting free online access may result in private vendors selling the information, and may conflict with Wisconsin's open records law.[17]

Following the decision in Donohoo v. Action Wisconsin Inc., Prosser voted to amend the state's judicial code of conduct to allow judges to decide cases involving their campaign contributors,[18] saying there are various levels of support and a campaign contribution or endorsement "in and of itself does not create so close or special relationship so as to require automatic recusal."[19] He has also said his policy is not to recuse (remove) himself from cases involving lawmakers he has served with in the past unless the case is actually about the lawmakers.[20]

Other professional activities

Prosser served as a member of the Wisconsin Council of Criminal Justice (1980–1983), the Judicial Council Commission on Preliminary Examinations (1981), the Wisconsin Sentencing Commission (1984–1988, 1994–1995), the Wisconsin Sesquicentennial Commission (1993–1999), and the National Conference of Commissioners on Uniform State Laws (1983–1996).[21][7]

Controversies

Decision not to prosecute abuse case

In 1978, while serving as District Attorney of Outagamie County, Prosser declined to prosecute a Catholic priest accused of sexual abuse by two brothers (ages 12 and 14), who said the priest had touched their chests and unsuccessfully attempted to touch lower.[22] Prosser later explained he did not file charges because the case was weak; it involved relatively new sexual assault laws that were untested at the time, and he did not think he could win a jury trial.[23][24] He said he had assumed the priest, John Patrick Feeney, would be reassigned as a result of his discussion with Feeney's bishop.[25] The priest was not removed from duties which allowed him contact with children, and he went on to abuse other children before being sent to prison on a 15 year sentence in 2004.[26][22] The prosecutor who ultimately and successfully prosecuted the case in the early 2000s said that when Prosser had the case in the 1970s, he was lacking sufficient information: "We were able to gather a wealth of information that far exceeded what Prosser had," he said, adding, "It's not fair to second-guess him now."[26] When interviewed in 2011 one of the victims said that in 1978 he and his brother had not communicated detailed information about the abuse to the authorities, and that when the case came to trial in 2002, Prosser helped in the prosecution.[23][27]

During Prosser's 2011 run for re-election to the Wisconsin Supreme Court, the incident was revived in a political ad by a pro-union organization.[28] The ad was rated "Barely True" by the Pulitzer Prize-winning fact-checking website, PolitiFact.com, because it omitted critical facts and created false impressions.[29] One of the abuse victims, who had been critical of the decision not to prosecute, criticized the ad as "offensive, inaccurate and out of context."[30] Prosser asked his opponent, Kloppenburg, to call for the removal of the ad—she replied that the First Amendment gave the group the right to run such ads.[31]

Assembly staffers used for campaigning

In 2006, Prosser testified on behalf of Wisconsin State Representative Scott Jensen who was being tried on three felony counts of misconduct in office because his legislative staffers also performed campaign activity on his behalf. Prosser stated that during seven years of his own tenure in the Wisconsin Assembly, he had used his taxpayer-funded staff for campaigning—the same crime Jensen was eventually convicted of.[32][33] Prosser was not charged, and defended the actions saying, "it was a different era and public expectations were quite different". However critics described this as illegal activity, and the Appleton Post Crescent, Prosser's hometown paper, found Prosser's admissions sufficient reason to endorse Prosser's opponent in the 2011 election, saying Prosser fell short of having the "unimpeachable integrity" required of a high court judge because he had admittedly "condoned illegal activity" while serving as an elected official.[34]

Altercations with other justices

During a closed-door debate between the justices on February 10, 2010, Prosser called Chief Justice Shirley Abrahamson "a total bitch" and threatened to "destroy her".[35] A review of emails by the Milwaukee Journal Sentinel indicated that "justices on both sides described the court as dysfunctional, and Prosser and others suggested bringing in a third party for help".[35] Prosser admitted he overreacted, but justified his statements, saying he had been goaded, bullied and abused by two other justices for a long time.[35] He also said the March 2011 revelations of the year-old altercation were an attempt to hurt his bid for re-election,[35] and that the fights were caused by other members of the court "ganging up" on him and attempting to create a "foul atmosphere".[36]

When interviewed in March 2011, Justice Ann Walsh Bradley acknowledged Prosser had had outbursts over the years, but said there had not been one of significant magnitude since February 2010. She also commented that, "he is a good man - but you cannot accurately say he has a steady, even temperament."[35] The 2010 conflict on the court was also criticized as having a potential for lowering court productivity and distracting the focus of the justices.[37]

Conflicting media reports on June 25, 2011 indicated that Prosser had gotten into an altercation with Bradley on June 13, 2011 in her office, which allegedly became physical.[citation needed] The dispute occurred during a discussion in Bradley's office with four other Justices present, before the court issued its June 13, 2011 split decision to uphold the law limiting collective bargaining rights for most Wisconsin state public employees.[citation needed]

In one report, witnesses alleged that Prosser grabbed Bradley around the neck in what was described as a chokehold during the dispute, after she told him to leave. A contradictory report said that Bradley charged Prosser with her fist raised, and that in attempting to block her, he made contact with her neck. Capitol Police Chief Charles Tubbs was notified of the incident, and met with the entire Supreme Court. Investigations into the matter were opened by the Wisconsin Judicial Commission and the Dane County Sheriff's office.[38] Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism indicated they were conducting an inquiry of their own.[citation needed] The Dane County Sheriff's office gave its findings to county District Attorney Ismael Ozanne, who referred the matter to special prosecutor Patricia Barrett; Barrett ultimately ruled that the evidence did not support criminal charges.[3]

After initially saying he would refrain from comment until a proper investigation was completed,[2] Prosser denied he choked Bradley saying, "claims made to the media will be proven false." Bradley then made a public statement saying that Prosser, "put his hands around my neck in anger in a chokehold", as she was asking him to leave her office.[39][40][41][42][43]

The Dane County Sheriff's report indicated that there was no choking, that Justice Bradley "did not recall Justice Prosser squeezing or applying pressure around her neck", and that Justice Bradley rapidly approached Justice Prosser, going "face to face to confront him", in her own words.

2011 Re-election campaign

Prosser faced JoAnne Kloppenburg, a long-time but little-known Wisconsin assistant attorney general, in both the February 5, 2011 spring primary, and the April 5 run-off election.

Primary election

In December 2010, Prosser's campaign director expressed strong support for governor-elect Walker, saying Prosser's "personal ideology more closely mirrors" Walker's, and that a win by Prosser would result in, "protecting the conservative judicial majority and acting as a common sense compliment to both the new administration and Legislature."[44] He later disavowed the statements and claimed he had not seen the release.[45] Prosser's campaign manager also said that, "This election is about a 4-3 commonsense conservative majority vs. a 3-4 liberal majority, and nothing more."[46][47]

In a survey of attorneys conducted by the Milwaukee Bar Association that was published February 2011, Prosser received more votes saying he was "qualified" than any of his opponents; besting Kloppenburg by a margin of 296 to 112.[48] He was endorsed in the Milwaukee Journal Sentinel, and the Sun Prairie Star.[49] He won the primary handily, receiving 231,000 votes to second place finisher Kloppenburg's 105,000 votes; a 30% margin.

General election

In the general election of April 5, 2011, Prosser again faced Kloppenburg. The contest received considerable attention due to the 2011 Wisconsin protests of Walker's budget repair bill and limitations on public employee bargaining rights; issues which would likely soon come before the Wisconsin Supreme Court. Kloppenburg supporters attempted to tie Prosser to the policies of Republican governor Scott Walker, and his March 2011 law limiting most of Wisconsin's public employees' collective bargaining rights. The non-partisan race for the court seat was also characterized as a proxy battle or referendum on the administration of Governor Walker and other Republican officials.[1][50][51] Both candidates stated their unhappiness regarding the increased partisan aspect of the race,[52][53] with Prosser claiming that if he was defeated, it would mean the end of judicial independence.[54]

On March 31, Prosser's campaign co-chair, former Democratic governor Patrick Lucey, resigned from the campaign and endorsed Kloppenburg, saying it appeared that Prosser had lost his impartiality, and was showing "a disturbing distemper and lack of civility that does not bode well for the High Court".[55] The Wausau Daily Herald reversed its primary election endorsement, and urged its readers to vote against Prosser in the general, describing him as "an intemperate figure given to partisan rhetoric".[56] Citing the earlier statement of Prosser's campaign director that the election is about maintaining a conservative majority on the court, The Capital Times endorsed Kloppenburg.[57] Prosser was endorsed by the Sun Prairie Star, The Milwaukee Journal-Sentinel, and former Alaska governor Sarah Palin (via Twitter), among others for the general election.[58]

State officials predicted a voter turnout of around 20 percent, a typical level of turnout for an April election.[59] However, voter interest and turnout were unusually high with nearly 1.5 million votes cast.[60]

Result

The day after the election, Kloppenburg was thought to be ahead by a razor-thin margin of 204-votes, leading her to prematurely declare victory.[61][62] Late in the afternoon of April 7, Waukesha County Clerk Kathy Nickolaus announced that the preliminary vote totals she had given to the Associated Press on April 6 did not include 14,315 votes from Brookfield, her county's second largest city and one of the most Republican. The announcement changed the unofficial total, giving Prosser a lead of over 7,000 votes which likely would not be changed by a recount.[63] Other, much smaller errors in the preliminary count were found in other counties favoring both candidates.[64] A final vote canvass of all the counties in Wisconsin gave Prosser an official lead of 7,316 votes on April 15.[65] Kloppenburg did request a recount at taxpayer expense (costing as much as $500,000)[66][67] and Prosser was eventually declared the winner by 7,006 votes [68].

New York Times analyst Nate Silver declared on April 8 that the Nickolaus' error pointed to incompetence, not conspiracy.[69] However, Democrats have called on Nickolaus to resign, citing her previous employment under Prosser in the mid-1990s as a member of the assembly caucus[65] and questions about her procedures and counts in prior elections.[70] State election officials have announced an investigation of possible voting irregularities going back to 2006.[71]

Electoral History

2011 Wisconsin Supreme Court Non-partisan general election recount - May 23, 2011[64]
Candidate Votes Percentage
David T. Prosser, Jr. (incumbent) 752,694 50.17%
Joanne Kloppenburg 745,690 49.70%
Write ins 1,729 .11%
2011 Wisconsin Supreme Court Non-partisan general election - April 5, 2011[64]
Candidate Votes Percentage
David Prosser (incumbent) 752,323 50.2%
Joanne Kloppenburg 745,007 49.8%
2011 Wisconsin Supreme Court Non-partisan primary election - February 15, 2011[72]
Candidate Votes Percentage
David Prosser (incumbent) 231,017 55%
Joanne Kloppenburg 105,002 25%
Marla Stephens 45,256 11%
Joel Winnig 37,831 9%
2001 Wisconsin Supreme Court General
Non-partisan election[73]
Candidate Votes Percentage
David Prosser (incumbent) 549,860 99.53%
(Scattering) 2,569 0.47%
U.S. House of Representatives, Wisconsin's 8th District 1996 General Election, November 5, 1996[74]
Party Candidate Votes Percentage
Democratic Jay W. Johnson 129,551 52%
Republican David T. Prosser, Jr. 119,398 48%
Democratic gain from Republican
Wisconsin State Assembly 57th District - General Election November 8, 1994[75]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. (incumbent) 12,277 100%
Republican hold
Wisconsin State Assembly 57th District General Election November 1992[76]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. (incumbent) 16,392 68%
Democratic Michael Meyer 7790 32%
Republican hold
Wisconsin State Assembly 57th District General Election November 1990[77]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. (incumbent) 11,342 69%
Democratic Michael Meyer 5,144 31%
Republican hold
Wisconsin State Assembly 57th District General Election November 1988[78]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. (incumbent) 16,280 73%
Democratic Kathleen P. Hartman 6,077 27%
Republican hold
Wisconsin State Assembly 57th District General Election November 4, 1986[79]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. (incumbent) 12,001 74%
Democratic Kathleen P. Hartman 4,291 26%
Republican hold
Wisconsin State Assembly 57th District General Election November 1984[80]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. (incumbent) 16,728 100%
Republican hold
Wisconsin State Assembly 79th District General Election November 1982[81]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. (incumbent) 10,855 68%
Democratic David N. Innis 5,135 32%
Republican hold
Wisconsin State Assembly 42nd District General Election November 1980[82]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. (incumbent) 13,301 100%
Republican hold
Wisconsin State Assembly 42nd District General Election November 7, 1978 [83]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. 9,991 66%
Democratic James F. Schreiter 5,124 34%
Republican hold
Wisconsin State Assembly 42nd District Primary Election September 12, 1978[84]
Party Candidate Votes Percentage
Republican David T. Prosser, Jr. 3822 69%
Republican Arnold E. Grommer 1,685 31%
Wisconsin State Assembly 42nd District Primary Election September 12, 1972[85]
Party Candidate Votes Percentage
Republican Tobias A. Roth 4383 53%
Republican David T. Prosser, Jr. 3256 39%
Republican Norman Austin 402 5%
Republican Neal W. Wellman 227 3%

References

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  35. ^ Jack Zemlicka (2011-03-25). "High court conflict threatens credibility". =Wisconsin Law Journal. http://wislawjournal.com/blog/2011/03/25/divided-they-sit-high-court-conflict-threatens-credibility. Retrieved 2011-04-02. 
  36. ^ Two probes opened into Bradley claim. JSOnline, June 27, 2011
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  38. ^ Crocker Stephenson, Cary Spivak and Patrick Marley. "Justices' feud gets physical: Prosser, Bradley clashed on eve of union ruling". Milwaukee Journal Sentinel. http://www.jsonline.com/news/statepolitics/124546064.html. 
  39. ^ Crocker Stephenson (June 25, 2011). "Prosser: Reports false that he placed hands on neck of other justice". Milwaukee Journal Sentinel. http://www.jsonline.com/news/statepolitics/124548038.html. 
  40. ^ John Hart (June 26, 2011). USAToday. Associated Press. http://www.usatoday.com/news/nation/2011-06-26-wisconsin-supreme-court_n.htm Wis. justice accuses colleague of choking her. 
  41. ^ "Wis. justice accuses colleague of choking her". MSNBC. Associated Press. http://www.msnbc.msn.com/id/43539786/ns/us_news-crime_and_courts. 
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  43. ^ "Kloppenburg, Prosser Spar Over Impartiality". WTMJ4 (AP). 2011-03-22. http://www.todaystmj4.com/news/local/118418894.html. Retrieved 2011-03-30. 
  44. ^ Abe Sauer (2011-03-24). "Wisconsin's Nasty Spring Election: Impartiality with Its Sleeves Rolled". The Awl. http://www.theawl.com/2011/03/wisconsins-nasty-spring-election-impartiality-with-its-sleeves-rolled. Retrieved 2011-04-02. 
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  47. ^ Wausau Daily Herald Editorial Board (2011-02-07). "In The Primary Elections We endorse". Wausau Daily Herald. http://www.wausaudailyherald.com/apps/pbcs.dll/article?AID=2011102080340. Retrieved 2011-04-02. [dead link];
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  48. ^ Steven Elbow (2011-03-23). "Enraged by Walker, activists put Kloppenburg's Supreme Court campaign on their shoulders". The Capital Times (Madison.com). http://host.madison.com/ct/news/local/govt-and-politics/elections/article_9e7336a2-54c5-11e0-b1fb-001cc4c002e0.html. Retrieved 2011-04-02. 
  49. ^ AP staff reporter (2011-03-28). "Supreme Court race all about union bargaining law". Beloit Daily News. The Associated Press. http://www.beloitdailynews.com/articles/2011/03/28/news/wisconsin_news/wis2801.txt. Retrieved 2011-04-02. 
  50. ^ WTAQ staff (2011-03-15). "Supreme Court Candidates Unhappy With Partisan Aspect in Race". WTAQ News Talk 97.5FM. http://wtaq.com/news/articles/2011/mar/15/supreme-court-candidates-unhappy-partisan-aspect-r/. Retrieved 2011-04-02. 
  51. ^ "State Supreme Court candidates face off in heated race". Green Bay Press Gazette. 2011-03-27. http://www.greenbaypressgazette.com/article/20110327/GPG0602/103270721/1270/State-Supreme-Court-candidates-face-off-heated-race. Retrieved 2011-04-11. 
  52. ^ JR Ross (2011-03-28). "Prosser says his defeat would destroy judicial independence, Kloppenburg knocks him as partisan". WisPolitics. http://www.wispolitics.com/index.iml?Article=231523. Retrieved 2011-04-02. 
  53. ^ "Former Gov. Lucey Leaves Prosser's Campaign, Endorses Kloppenburg". Channel3000.com. 2011-04-01. http://www.channel3000.com/news/27392391/detail.html. Retrieved 2011-04-02. 
  54. ^ Wausau Daily Herald Editorial board (2011-03-24). "We endorse ... For state Supreme Court: JoAnne Kloppenburg". Wausau Daily Herald. http://www.wausaudailyherald.com/article/20110325/WDH06/103250418/We-endorse-state-Supreme-Court-JoAnne-Kloppenburg. Retrieved 2011-04-02. 
  55. ^ Capitol Times editorial board (2011-03-16). "Put independent Kloppenburg on court". Capitol Times (Madison, WI: Madison.com). http://host.madison.com/ct/news/opinion/editorial/article_bac4136b-27ce-571b-9a9e-735632282861.html. Retrieved 2011-04-02. 
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