Tag Archives: wisconsin supreme court

Wis. Supreme Court urged to bar judges from cases involving their donors

The Wisconsin Supreme Court this week postponed an open meeting about whether to bar judges, including those on the high court, from hearing cases involving people who donated significantly to their election campaigns.

The Supreme Court, whose 5-2 majority leans conservative, was scheduled to take up a petition on March 16 from 54 retired Wisconsin judges pushing for the rule change.

But the open meeting was postponed until April 20 after Brian McGrath, a lawyer for the conservative group Wisconsin Institute for Law and Liberty, emailed the court to say his group intends to show that the petition “should be dismissed without a further and wasteful investment of judicial and public resources” and plans to submit its arguments in writing in the next 30 days.

Jenni Dye, a research director at the liberal advocacy group One Wisconsin Now, said in a statement she’s not surprised the court accommodated the group.

“The coalition of retired judges asking for this rule change were concerned about corruption or the appearance of corruption on the court,” she said. “That the court would go along with this request from a conservative group is further proof the rules need to change to insulate the justices from influence of special interests.”

The institute’s president, Rick Esenberg, said the court is doing what it should by waiting for input from various points of view.

“What could possibly be the problem with taking the time to listen to a petition from someone with another perspective?” he said.

Esenberg said his group plans to argue that tightening the rules would inhibit free speech by steering individual supporters away from contributing to campaigns and amplifying special interest groups.

“Speech cannot happen without resources,” he said. “If we’re going to have elections, we need to be able to have a public conversation.”

The postponement came the day a national campaign finance watchdog group, the Campaign Legal Center, sent a letter to the court urging it to adopt stricter rules, arguing that Wisconsin lags behind other states in preventing judicial conflicts of interest.

The Brennan Center for Justice also sent the court a letter this week urging a review of the rules.

Currently, donors can give up to $20,000 to Wisconsin Supreme Court candidates and a court can’t force judges to recuse themselves from cases with possible conflicts of interest.

Former Milwaukee County Judge Michael Skwierawski, who helped write the petition, said he’s troubled by the influx of money to judicial campaigns.

“It puts judges in a difficult position when all that extra money is forced on campaigns,” he said, adding that even judges who act in good faith risk having the appearance of their independence tarnished.

“Someone cannot simply pay for a judge’s election and expect the public to believe the judge could be fair on a case involving that party,” he said.

The petition suggested requiring judges to recuse themselves if they have received campaign donations from any parties in the case of varying amounts, ranging from $10,000 for state Supreme Court justices to $500 for municipal judges. The proposal would include in the total any expenditures made to influence the outcome of an election, including those to third parties, though Esenberg expressed doubts about whether this would be viable. If more than four judges are recused for a case, the proposal suggests allowing an appeals court judge or retired Supreme Court justices to hear a case to ensure four judges.

Candidates currently are also free to coordinate with outside interest groups who spend money on so-called issue advocacy but stop short of endorsing specific candidates. That stems from a 2015 Wisconsin Supreme Court case centered on whether Gov. Scott Walker’s campaign illegally coordinated with outside interest groups.

Now-retired Justice David Prosser, one of three conservative judges to halt the investigation, acknowledged at the time that some groups under investigation had helped his campaign, but he refused to recuse himself, saying the spending happened years ago.


Wisconsin Supreme Court justice wants big raise despite declining productivity

While Wisconsin Supreme Court Chief Justice Patience Roggensack pushes for judicial pay raises of more than $20,000 annually, the number of decisions issued by judges on the state’s two appellate levels has fallen dramatically, statistics show.

Roggensack’s big boost request fell flat with Gov. Scott Walker. She wanted the state to spend $6.4 million per year on judicial pay increases, but Walker is proposing only $334,000 for 2018–2019 pay raises.
Walker also is, however, recommending that the director of state courts figure out a judicial pay plan, which would be submitted to the Joint Committee on Employment Relations for approval. The director of state courts works for Roggensack’s Supreme Court.
Roggensack’s plan would have taxpayers footing bigger bills for judges — at least on the two appellate levels — who issue far fewer decisions than they used to.
Marquette University Professor Alan Ball examined the Wisconsin Supreme Court’s declining productivity on his excellent SCOWstats blog. He found the number of opinions issued declined from 83 in 1990–91 to 43 in 2015, a 48 percent decrease.

“Yet the average period between oral argument and the filing of a decision was roughly a month and a half shorter in 1990–91 than in 2015–16 (91 days and 136 days, respectively,)” Ball wrote.
The state’s own statistics show a big drop in Court of Appeals productivity as well.  It closed 3,132 cases in 2006 but just 2,421 cases in 2016. a decline of almost 23 percent.
Case filings dropped as well. There were 3,078 cases filed with the Court of Appeals in 2006; in 2016, there were 2,426 filed, a 22 percent drop.

Gretchen Schuldt is executive director of  Wisconsin Justice Initiative Inc. This piece originally appeared on the Wisconsin Justice Initiative blog.


Conservative court says DOJ doesn’t have to release Schimel videos

The Wisconsin Supreme Court this week rejected Democrats’ efforts to force the release of training videos featuring Republican Brad Schimel before he became attorney general, finding that he didn’t say anything inappropriate in them, as Democrats initially alleged, and that releasing them could hurt prosecutors and crime victims.

The recordings don’t reveal any misconduct and releasing them would reveal prosecutor strategies as well as re-traumatize victims in a high-profile sexual extortion case, the court’s conservative majority ruled in a 5-2 decision.

The state Democratic Party asked the state Department of Justice in 2014 to release videos of presentations on sexual predators that Schimel gave in 2009 and 2013, when he was the Waukesha County district attorney.

The 2009 video shows Schimel discussing prosecution strategies.

In the 2013 video, Schimel recounts a case in which a Waukesha County high school student posed as a woman online, obtained graphic pictures from male classmates and blackmailed them into sexual acts.

The Democrats’ demanded the videos during the height of Schimel’s attorney general campaign, alleging they showed him making ethnic and racial slurs, as well as sexist comments.

The DOJ refused to hand over the videos, arguing that they reveal prosecutorial strategies and could re-traumatize the blackmail victims.

That stance prompted Democrats to sue.

A Madison judge who viewed the videos found that Schimel didn’t make any inappropriate remarks and that no victims were identified by name.

Both the judge and a state appeals court ruled the videos should be released.

The DOJ allowed the Democrats’ attorney to view the videos, after which he dropped the misconduct claims, according to court documents.

The state Supreme Court sided with DOJ, ruling the videos don’t show any official misconduct and the lawsuit suggests a partisan purpose behind the request.

Writing for the majority, Justice Rebecca Bradley likened the 2009 video to prosecutors’ case files, which are exempt from Wisconsin’s open records law.

The video clearly contains discussions of tactics and could be widely disseminated online, helping criminals avoid detection, the court found.

Bradley acknowledged that Schimel doesn’t name any victims in the 2013 video, but she wrote that someone could figure out who they are from the context. That could re-traumatize them in violation of a state constitutional amendment that requires the state to treat crime victims with dignity, she wrote.

“The denial of public access occurs only in exceptional cases. This case presents one of those exceptional situations,” Bradley wrote. “The two videos requested here do not contain any evidence of official misconduct. Our review independently demonstrates that the reasons proffered (for withholding the videos) are sufficient and supported by the facts in this case.”

The court’s two liberal-leaning justices, Shirley Abrahamson and Ann Walsh Bradley, dissented.

Abrahamson wrote that the court should have ordered the videos released with sensitive information redacted.

She chastised the majority for suggesting that the request was politically motivated, noting that the open records law doesn’t require requestors to explain their motivation. She added the ruling offers no limits on when protecting victims trumps disclosure.

“What has the majority achieved with its opinion grounded in speculative, abstract, and unsubstantiated fears? The answer for me is: A dimming of the light on public oversight of government, especially in matters pertaining to criminal justice.”

A Democratic Party spokesman didn’t immediately respond to an email seeking comment.

Supreme Court declines to reopen Walker campaign case

The U.S. Supreme Court will not take up an appeal on the John Doe 2 case, permanently ending a probe into Wisconsin Gov. Scott Walker’s campaign against a recall.

The high court declined to reopen the John Doe 2 investigation, leaving in place the state supreme court’s decision that halted the John Doe probe into whether the Republican governor illegally coordinated with outside interest groups, specifically the conservative Wisconsin Club for Growth. The state court’s decision was considered highly partisan.

In the probe, prosecutors were looking into whether Walker’s campaign coordinated with conservative groups on campaign ads in 2012. The governor was fighting off a recall effort after he signed his bill stripping public unions of collective bargaining rights.

The Wisconsin Justice Initiative on Oct. 3 said the U.S. Supreme Court’s decision highlights a need to reform state judicial campaign laws.

“This unfortunate decision doesn’t erase the perception that money corrupted the deliberative process of the Wisconsin Supreme Court,” WJI executive director Gretchen Schuldt said. “That court’s majority took too much in campaign funds from too many players with interests in the case. The money raises suspicions that will never go away.”

The state should bar judges from participating in cases that include or might affect campaign donors, according to WJI. Also, judges should be blocked from participating in cases involving groups or individuals who have provided endorsements in the judges’ races.

“The integrity of the state supreme court has rightly been called into question,” Schuldt said. “The court itself does not want to restore it and the U.S. Supreme Court does not want to restore it. It is up to Wisconsin voters to insist that their legislators enact laws that will ensure the state supreme court is the pride of Wisconsin, not the huge embarrassment it is now.”

Iowa County District Attorney Larry Nelson, Dane County District Attorney Ismael Ozanne and Milwaukee County District Attorney John Chisholm issue a joint statement after learning of the U.S. Supreme Court’s decision: “We are disappointed by today’s Supreme Court order denying our Petition for Certiorari. The state supreme court decision, left intact by today’s order, prohibits Wisconsin citizens from enacting laws requiring the full disclosure of disguised contributions to a candidate, i.e., monies expended by third parties at the direction of a candidate for the benefit of that candidate’s election. We are proud to have taken this fight as far as the law would allow and we look forward to the day when Wisconsin adopts a more enlightened view of the need for transparency in campaign finance.”

Wisconsin Club for Growth president Eric O’Keefe, according to Wisconsin Public Radio, said, “From its inception, this proceeding was a politically motivated attack and a criminal investigation in search of a theory.”

The high court announced the decision without explanation on Oct. 3, the court’s first day of the fall term. The order said, “The petition for a writ of certiorari is denied.”

Editor’s note: This story will be updated.


Republican Party helps pay Justice Prosser’s campaign debt

The Wisconsin Republican Party paid legal bills and costs stemming from a vote recount for retiring Supreme Court Justice David Prosser, a longtime Republican official who promised to support Gov. Scott Walker’s policy agenda if re-elected to the bench. The partisan donation for the judge was disclosed in Prosser’s latest campaign finance report.

The party paid $25,000 on April 7 to Dan Morse, a Republican consultant and fundraiser for Walker, for work he’d done for the Prosser Defense Fund. Prosser still has $46,000 in legal bills related to his 2011 recount to pay, according to his committee’s report.

The in-kind contribution from the state GOP came about three weeks before Prosser announced he would retire at the end of this month — five years before the end of his term. Prosser’s early retirement gives Walker the opportunity to appoint a replacement. Walker is currently considering three finalists for the job.

Prosser was appointed to the Wisconsin Supreme Court in 1998 by former GOP Gov. Tommy Thompson and later won two 10-year terms in statewide elections in 2001 and 2011.

Prosser faced no opposition in the 2001 race, and he was expected to have an easy reelection in 2011 until GOP Walker introduced his controversial plan in early 2011 to severely restrict public employee collective bargaining rights.  The plan sparked massive Capitol protests by hundreds of thousands of state workers. It drew national attention and made an otherwise quiet re-election bid a referendum on Walker’s actions, because Prosser had been a longtime Republican legislator and Assembly Speaker.

The close election that followed spurred a recount and more than $230,000 in legal bills.

In 2012, Prosser changed his campaign fundraising committee to a defense fund in order to pay legal bills after the state Judicial Commission accused him of ethics code violations after he put his hands on the neck of fellow Justice Ann Walsh Bradley. The case against Prosser did not go forward because some justices who witnessed the event recused themselves from the case.

In addition to the Prosser Defense Fund, a second committee created to pay for Prosser’s recount expenses, the Prosser Victory Recount Fund, has helped whittle Prosser’s outstanding bills to the current $46,000 as of June 30.

Even though the races for the seven-member high court are technically nonpartisan, conservative candidates are frequently backed by GOP contributors and outside electioneering groups, and liberal candidates get support from traditional Democratic campaign contributors and outside groups.

In addition to Prosser, the state Republican Party has also supported some of the Supreme Court’s four other conservative justices. Most recently, the party made about $42,200 in in-kind contributions to help elect Justice Rebecca Bradley last April. In 2013, the state party made about $35,900 in contributions to help reelect Patience Roggensack, who later became the court’s chief justice.

Watchdog group asks SCOTUS to overturn John Doe 2 ruling

On June 29, the Center for Media and Democracy (CMD), the Brennan Center for Justice and Common Cause filed a brief with the U.S. Supreme Court urging the justices to overturn the Wisconsin Supreme Court ruling that shut down John Doe 2.

John Doe 2 was a criminal investigation into potentially illegal campaign coordination between Gov. Scott Walker’s campaign and groups that spent millions to help him survive the 2011–2012 recall elections.

The brief argues in part that the Constitution’s guarantee of a fair and independent tribunal was violated in the case due to the extraordinary conflicts of interest of two justices.

Justices David Prosser and Michael Gableman denied a motion from the special prosecutor to step aside because they’d received millions of dollars in support from the defendants in the case. According to the brief, they then proceeded to: help “cancel oral argument, issue sweeping secrecy orders, halt the investigation, fire the special prosecutor, order the evidence returned and copies destroyed, and dramatically curtail Wisconsin’s campaign finance law, rendering the longstanding limits and other restrictions the state places on contributions to candidates virtually meaningless.”

According to the brief, inappropriate actions were taken by the state’s high court to impede the prosecutors’ appeal to the U.S. Supreme Court.

Specifically, the brief argues that:

  • Special prosecutor Fran Schmitz filed a Motion for Recusal asking justices Prosser and Gableman to step aside and raising concerns about two other justices. Those two justice and two others have received a combined $10 million since 2007 from the defendants in the case.
  • The special prosecutor may have unearthed documents suggesting that justices Prosser and Gableman or their campaigns benefited from the same kind of coordinated activities by the subjects of the investigation as Walker did. They may have had direct campaign-related interactions with the groups under investigation. Still, the two justices refused to recuse themselves from the case.
  • The activities of the groups under investigation in John Doe 2 aided the election of Prosser and Gableman to an even greater degree than in a case on which the Supreme Court has already ruled. In Caperton v. Massey, a West Virginia justice helped reverse a multi-million dollar verdict against a coal baron whose spending got him elected. The ruling in that case, which was issued the same day as the Citizens United decision, the U.S. Supreme Court intervened due to the potential corruption.
  • The expenditures for Prosser and Gableman were made during the same time period and involved the same players as the actions under investigation in the John Doe 2 case. The defendants and their offshoots spent a combined total of $3.2 million to support Gableman’s election, nearly eight times the $411,000 spent by Gableman’s campaign itself.
  • Shortly after the recall elections, one of the defendants, Wisconsin Manufacturers & Commerce, issued a press release boasting of the $6.75 million it had spent on the previous three Supreme Court elections.

CMD’s brief notes: “Not only were the justices put in a position of making rulings that could cost their biggest campaign supporters millions in civil fines, but upholding the district attorneys’ theory of prosecution could have sent those supporters to jail. … As in Caperton, the amount spent by the movants and the organizations they controlled ‘eclipsed’ the amount spent by other supporters of Prosser and Gableman, as well as the amount spent by their own campaign committees.”

Close connections

As noted in Schmitz’s motion to recuse,“Two of the movants had ‘direct involvement’ with the re-election campaign of one justice; the treasurer of Walker’s campaign committee was also associated with the campaign committee of one justice; and one justice’s campaign had a ‘close connection’ with more than one movant.”

Schmitz is a former anti-terrorism prosecutor for ex-President George W. Bush’s Department of Justice.

The motion also noted “there is a potential overlap between the activities” of Prosser’s campaign “during the … election (that’s) within the scope of the investigation now before this court.” Prosser was re-elected in 2011, the same year of the Senate recall campaigns.

According to the brief, the criminal investigation “appears to have turned up at least one interaction with a justice’s campaign that ‘gave rise to a reportable contribution as a coordinated expenditure’ — the activity at the heart of the case and the court’s decision. As a result of that activity, ‘the Justices will be deciding issues that may well reflect back on their own campaign committees and any interaction that may have taken place between these committees’ and movants in the case.’”

CMD’s brief to the U.S. Supreme Court also urges the Court to overrule the Wisconsin Supreme Court for legal errors in its analysis of binding precedent allowing legislatures to limit coordination that would circumvent anti-corruption rules.

The brief states that the Wisconsin Supreme Court’s ruling is wholly at odds with … longstanding decisions, as well as the holding of the U.S. Court of Appeals in this very same case. In O’Keefe v Chisholm (2014), the court ruled that “no opinion issued by the Supreme Court, or by any court of appeals, establishes (‘clearly’ or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups — let alone that the First Amendment forbids even an inquiry into that topic.”

In summation, the brief argues that the facts in John Doe 2, the grave legal errors made by the state court, the potential bias of some of the state justices, and the extraordinary intervention by that court provide compelling reasons for the U.S. Supreme Court to hear the case and repudiate the decision of the Wisconsin Supreme Court.

Hearing expected later this year

The U.S. Supreme Court is expected to consider the prosecutors’ petition later this year.

Last year, before the Wisconsin Supreme Court intervened in the state criminal prosecution of John Doe 2, federal prosecutors were investigating illegal campaign coordination similar to that alleged in the Wisconsin case under parallel federal laws. In Virginia, a “campaign finance manager and political consultant pleaded guilty … in the Eastern District of Virginia for coordinating $325,000 in federal election campaign contributions by a political action committee (PAC) to a Congressional campaign committee.”

As the U.S. Department of Justice stated in that case, “The significant prison sentence imposed on Tyler Harber should cause other political operatives to think twice about circumventing laws that promote transparency in federal elections,” said Assistant Attorney General Caldwell. “As the first conviction for illegal campaign coordination, this case stands as an important step forward in the criminal enforcement of federal campaign finance laws. Illegal campaign coordination can be difficult to detect, which is why we strongly encourage party or campaign insiders to come forward and blow the whistle.”

In the Wisconsin case, the targets of the investigation and related search warrants have denied any wrongdoing and claimed in court and through their allies in right-wing media that any coordination was protected by the First Amendment, in light of the Citizens United decision. That claim was embraced by the majority on the Wisconsin Supreme Court, despite justices’ manifest conflicts of interest in ruling on those claims.

The brief submitted by CMD, the Brennan Center, and Common Cause refutes that claim and highlights the overwhelming legal precedent supporting state and federal rules that limit coordination to help guard against the corruption of elected officials, including judges.

CMD, an investigative watchdog organization based in Madison, Wisconsin, has been reporting on John  Doe 2 since 2013 when the public first learned that a bipartisan group of state prosecutors had begun a criminal investigation into suspected illegal coordination spearheaded by Walker and his team to orchestrate ads from outside groups trying to aid Republican senators and Governor Walker himself as they faced potential recall elections stemming from Walker’s extremely controversial legislative agenda.

A prior criminal investigation of Scott Walker’s staff and associates, during the time he served as Milwaukee County Executive, resulted in 15 felony indictments for six people who have been sentenced for a variety of crimes including misconduct in office, including three Walker aides. Scott Walker was not charged in that case known as “John Doe I.”

Click here to read CMD’s full brief

Louis Weisberg edited this article from a release provided by CMD.

Half on Walker’s list for Wisconsin Supreme Court owe him

More than half of the applicants vying to replace retiring Wisconsin Supreme Court Justice David Prosser already owe their jobs to Gov. Scott Walker — and now he could tap one of them for the state’s highest court.

Walker released the names of 10 of the 11 applicants May 20, including attorney Andrew Brown of River Falls; Madison attorney Claude Covelli; state appellate judges Mark Gundrum, Brian Hagedorn and Thomas Hruz; Jefferson County Circuit Judge Randy Koschnick, who is the father of Walker’s chief staff attorney; Marinette County Circuit Judge James Morrison; Wisconsin Public Service Commission Chairwoman Ellen Nowak; Milwaukee attorney Paul Scoptur; and Madison attorney Jim Troupis.

Walker’s office says an 11th applicant requested confidentiality. Wisconsin law says the state must withhold an applicant’s identity if the person requests confidentiality in writing, unless they become a final candidate.

Walker expects to appoint a replacement by the time Prosser retires on July 31. It will be the Republican governor’s second appointment to the state’s highest court. He appointed Justice Rebecca Bradley in October after Justice Patrick Crooks died in his chambers. Walker had appointed Bradley to judgeships twice previously, and she won re-election in April.

The governor similarly could tap a previous appointee this time around — he’s appointed at least six of the applicants to their positions.

Gundrum was elected to the state Assembly as a Republican in 1998, serving alongside Walker. Gundrum was elected to the Waukesha County Circuit Court in 2010, and Walker appointed him to the 2nd District Court of Appeals in Waukesha in 2011.

Hagedorn was Walker’s chief legal counsel until Walker appointed him to the 2nd District Court of Appeals in 2015. He previously worked in the state Department of Justice, as a Milwaukee attorney and as clerk to Justice Michael Gableman.

Walker appointed Hruz to the 3rd District Court of Appeals in 2014. Hruz, previously a Milwaukee attorney, also clerked for Prosser.

As for Morrison and Troupis, Walker appointed both to circuit judgeships — Morrison in 2012 and Troupis in 2015. Both were in private practice prior to their appointments. Troupis’ appointment was slated to continue until August, but he stepped down in May.

Walker also appointed Nowak to chair the Public Service Commission. She was legal counsel and chief of staff for the Assembly speaker and was deputy director of School Choice Wisconsin, an organization advocating charter and voucher schools.

Several of the applicants have bid for seats on the Wisconsin Supreme Court before.

Troupis and Covelli, a practicing attorney in Wisconsin for 43 years who specializes in insurance law, both lost out to Bradley for Crooks’ seat. Covelli then launched a brief campaign to compete against Bradley, ending it two months later.

Koschnick ran for the Wisconsin Supreme Court in 2009, unsuccessfully challenging Justice Shirley Abrahamson. He’s been Jefferson County Circuit Court judge since 1999 and was previously a public defender for the county. His daughter, Katie Ignatowski, is Walker’s chief legal counsel.

Ignatowski and Walker’s deputy legal counsel both have recused themselves from the appointment process, according to Walker’s office. Walker’s chief of staff, Rich Zipperer, and former deputy legal counsel Andrew Hitt will serve in their place.

Scoptur works as an injury attorney in Wauwatosa and as an adjunct law professor at Marquette University. Brown lives in River Falls but works at a firm in Minnesota, focusing on construction disputes.

Associated Press writer Todd Richmond contributed to this report.


Supreme Court deals Walker a blow on education case

A divided Wisconsin Supreme Court dealt Gov. Scott Walker a loss yesterday in upholding a ruling that preserves the independence of the state’s elected education secretary and denies the governor power of veto over the Department of Public Instruction.

The court’s conservative majority was split on whether to overturn its unanimous ruling from 20 years ago that solidified the state superintendent’s independence as head of the Department of Public Instruction. The high court’s 4–3 decision rejects arguments made by Republican Attorney General Brad Schimel and upholds two lower court rulings.

The state constitution “requires the Legislature to keep the supervision of public instruction in the hands of officers of supervision of public instruction,” Justice Michael Gableman wrote for the majority. “To do otherwise would require a constitutional amendment.”

Superintendent Tony Evers has opposed overturning the law, saying the case was about preserving the office’s role as a nonpartisan constitutional officer in charge of implementing and overseeing education policy.

Evers hailed the ruling, calling it a “victory for public education and the future of our state.”

“More than anything else, this ruling provides much needed stability for our schools and the students they serve,” Evers said in a statement. “I hope we can now get back to focusing on what works best for our kids.”

Walker’s spokesman Tom Evenson did not address the court’s ruling directly in his reaction. Instead, he said Walker would “continue to advocate for policies that prioritize student success.”

“Governor Walker is dedicated to challenging the status quo when it impedes the ability of parents, school boards, and students to get the best educational outcomes,” Evenson said.

Justice Department spokesman Johnny Koremenos said the agency is reviewing the decision and has no immediate comment.

The case focused on a 2011 law passed by the Republican-controlled Legislature and signed by Walker that gave the governor veto power over administrative rules pursued by the state superintendent. That raised questions about whether the law amounted to a violation of the 1996 state Supreme Court ruling that the office was independent of the governor’s control.

The state Justice Department argued that if the court’s 1996 ruling prohibits the Legislature from making a change to administrative rules, then the decision should be overturned. The department’s attorney argued that if the state superintendent is unhappy with the governor’s decision relative to rules, he can always go back to the Legislature and try to get it reversed.

The law is unconstitutional because it does not allow DPI and the secretary “to proceed with their duties of supervision without the Governor’s, and in some circumstances the Secretary of Administration’s approval,” Gableman wrote.

The 2011 law required all state agencies to get approval from the governor before drafting new administrative rules — the legal language that enacts agency policies and laws passed by the Legislature. Under previous law, the rules were written by state agencies and reviewed by the Legislature, but not the governor, before taking effect.

Parents and members of the teachers’ union, with backing from organizations representing school administrators and school boards, filed a lawsuit in 2011 challenging the portion of the law that gives the governor the ability to block rules at DPI. They argued that the law gives the governor more power than the independently elected state superintendent, contrary to the court’s 1996 ruling.

The 1996 ruling arose from a case challenging then-Gov. Tommy Thompson’s attempt to transfer powers from DPI into a new Department of Education under the control of the governor. At the time, the court unanimously ruled that the state superintendent is in charge of education policy in Wisconsin and that the governor and Legislature can’t give “equal or superior authority” to anyone else.

Those supporting the governor’s position and opposing Evers include School Choice Wisconsin, a group that advocates for taxpayer-funded vouchers to attend private schools, and the state chamber of commerce.

Gableman was joined in the majority ruling by Justices David Prosser, Anne Walsh Bradley and Shirley Abrahamson. Those dissenting were Chief Justice Pat Roggensack and justices Annette Ziegler and Rebecca Bradley.

The dissenting justices argued that those challenging the law had not proven that it was unconstitutional.

Prosser to retire from Wisconsin Supreme Court

Right-wing Justice David T. Prosser Jr. has announced he will retire from the Wisconsin Supreme Court on July 31.

Justice David T. Prosser Jr.
Justice David T. Prosser Jr.

In a letter to Gov. Scott Walker, Prosser said, “It has been a tremendous honor to serve the people of Wisconsin in various capacities for more than 40 years. During this time, I have had the exceptional privilege of working in all three branches of state government, including 18 years as a representative in the State Assembly and 18 years as a justice on the Wisconsin Supreme Court.”

Wisconsin Supreme Court Chief Justice Patience Drake Roggensack issued a statement after the announcement: “Justice David T. Prosser is an exceptionally bright and thoughtful jurist whose presence on the court will be greatly missed. David has brought unique perspectives to court discussions, thereby increasing the court’s ability to understand difficult problems presented to us for resolution.”

Prosser was first appointed to the Supreme Court by Republican Gov. Tommy G. Thompson in 1998 to fill the vacancy created by the resignation of former Justice Janine P. Geske.

Prosser was elected to a 10-year term in 2001 and re-elected in 2011, in a close race with huge voting irregularities in Waukesha County.

Prosser has been a chief ally of Gov. Scott Walker and, when the justice ran for re-election in 2011 he had strong support from right-wing organizations, including the anti-gay Family Research Council’s Super PAC.

FRC, in that campaign, criticized Prosser’s main rival, JoAnne Kloppenburg, as having “liberal special interests.”

Prosser also benefitted in the campaign from about $1 million in advertising from two groups linked to Koch Industries – Citizens for a Strong America and Wisconsin Manufacturers & Commerce. In March 2011, Prosser voted with the Supreme Court’s conservative majority to overturn a lower court decision allowing a public challenge to a permit that gave Koch’s Georgia Pacific plants more leeway in dumping phosphorus into Fox River waterways.

A year earlier, Prosser gained national name recognition after calling Chief Justice Shirley Abrahamson “a total bitch” and threatening to “destroy her” in a closed-door meeting.

The media also reported that in June 2011 Prosser got into an altercation with Justice Ann Walsh Bradley in her office, putting his hands around her neck during a meeting before the court announced its split-ruling upholding Walker’s anti-union legislation.

Walker issued a statement this week saying, “Prosser has faithfully served the state of Wisconsin for decades. Throughout his almost 18 years of service on the state Supreme Court, he demonstrated his love for the law and commitment to Wisconsin’s citizens.”

Prior to joining the court, he served as a commissioner on the Wisconsin Tax Appeals Commission from 1997 to 1998 and as a representative in the Assembly from 1978 through 1996, including two years as speaker and five years as minority leader.

Before that, Prossser served as a district attorney in Outagamie County, administrative assistant to then-U.S. Rep. Harold V. Froehlich and as an attorney-advisor for the U.S. Department of Justice.

Merit selection: The best way to end judicial corruption

In the almost 4,000 years since Hammurabi codified Babylonian law, Western cultures have held judicial fairness and impartiality as an ideal. To be sure, it’s an ideal sometimes honored more in the breach than in the keeping, but it’s an unchanging ideal nonetheless.

Today, in Wisconsin, that ideal is under attack, from enemies both old and new.

Wisconsin elects its judges and elections mean donations and donations mean influence. The more money that flows into a judge’s coffers, the greater the chances that fairness and impartiality are at risk.

It’s critical for Wisconsin to reconsider the way judges are selected. The American Bar Association has advocated for merit selection since 1937. Merit selection, which is used in two-thirds of the states, relies on neutral experts and nonpartisan boards to select a qualified pool of candidates from which the governor can choose. In some states, approval of the senate also is required.

Under the system, judges must stand for retention after a determined number of years. The public is asked to vote only on whether to keep them. There are no competitive elections.

Alternately, the Wisconsin Bar Association has proposed a constitutional amendment that would limit justices to a single, 16-year term. According to WAB, the term limits would “engender greater public confidence in the court’s ability to pursue justice independently of political influence.”

We don’t think term limits are strong enough to solve the problem. Only merit selection upholds the ideal of blind justice.

Wisconsin’s already corrupt system has been further damaged by two high court rulings, one from Washington and the other from Madison.

In its Citizens United ruling, the U.S. Supreme Court ratcheted up brazen judicial bribery by removing limits on how much donors can contribute secretly to PACs to influence elections.

In Wisconsin, the problem is compounded by a state Supreme Court decision that campaigns can coordinate election strategies directly with dark money groups. The story of how such coordination became legal demonstrates how this kind of corruption works.

Several dark money groups were charged in a state “John Doe” case with illegal coordination during Gov. Scott Walker’s 2012 recall campaign. The same groups had given $8 million to four of the conservative justices on the bench.

So, when the case arrived at the high court, its outcome was a foregone conclusion. But the paid-for justices went further than anyone imagined they would. They not only dismissed the case against their donor, but ignored all legal precedent and tossed out the law banning such coordination. Then they ordered the evidence to be destroyed.

Why weren’t those justices recused from a case in which there was such a blatant conflict of interest? Just because, they said.

On April 5, with nearly four times the anonymous cash spent for her as for her opponent, Supreme Court Justice Rebecca Bradley won a 10-year term on the high court. Now the dark money groups have five-two control over justice in the state.

Money over merit: A majority of area lawyers said Bradley was unqualified. She’d never served on a judicial bench until 2012, when Scott Walker appointed her to a Milwaukee Circuit Court position. Last fall, following the death of Justice Patrick Crooks, Walker elevated her to the high court to finish out Crooks’ term, making her the incumbent in the election.

WiG is not alone in calling for reform. On April 5, 11 diverse towns in Wisconsin held referenda asking whether to amend the Constitution to undo Citizens United by declaring that money is not speech. Between 74 and 88 percent of voters said yes. That brought the total number of Wisconsin communities who’ve voted to nix Citizens United to 72. Forty-four percent of the state’s citizens live in those jurisdictions.

We need Citizens United to be thrown on the trash heap of history, and we must stop electing justices and appoint them on merit. Fair and impartial justice must not be negotiable.